Introduction: Stress in the Workplace
One growing area in Irish employment law is employers’ liability for workplace stress, bullying and harassment. Employer’s must identify risk factors and implement effective policies relating to bullying, harassment and grievances. There is no official duty that employers have to maintain a stress free work environment, but they are expected to conduct their business with an awareness surrounding the issues, as any reasonable person should.
Prevention: Avoid Having a Problem
The biggest concern for a respectable employer should be prevention. This requires the employer to be fully aware of situations which could create a stressful environment for workers and do his or her best to avoid letting these situations occur. A useful way to do so would be through completing and documenting a workplace risk assessment to identify anything that puts the employees at risk of increased stress.
Management: Stop the Stress Before it Starts
The next concern for the employer is managing the situation when stress is identified. It is unacceptable for an employer to wait until a crises has broken out and an employee is in a compromising situation to take action. The employer should have created a comfortable environment where the employee feels enough at ease to vocalize any concerns or issues relating to stress.
Legal Action: Employers May be Liable
Employees may be able to take legal-action due to certain types of stress in the workplace. “When the demands on a person exceed their capacity to meet them” is when the Health and Safety Authority deemed action based on workplace stress acceptable. Stress can create emotional as well as physical symptoms such as increased heartbeat, short of breath, and a dry mouth. There are multiple situations in which workplace stress can arise. A few examples being faulty work organisation, work practice changes, lack of communication, ill-established work roles, extremely demanding tasks, and bullying and harassment. Under the Safety, Health and Welfare at Work Acts 2005-2014 employers can be liable for their employees’ stress. Under common law principles a cause of action may arise under the common law principles of tort.
It is not enough for the employee to prove that the stress was foreseeable, it must be shown that the harm itself due to the stress was foreseeable and that the employer was aware that harm may result from it. A reasonable employer should know about the possible harm that may arise. Due to the nature and extent of an employee’s work along with the possible effects of it, an employer should be able to foresee any potential problems. When deciding if an employee needed to act on a sign of impending harm he or she is compared to a “reasonable employer.” In order for a cause to be actionable the steps that could or should have been taken must be established and the injury itself must be linked directly to these steps. If the employee has an underlying or pre-existing situation it will be taken into account, but it does not necessarily exclude the employer from liability. The best way for an employer to protect him or herself is to prove that his or her responses to any incidents was reasonable.
In the case of Glynn v. Minister for Justice  IEHC 133, the High Court rejected a claim by a woman employed on clerical duties at a Garda station that she was bullied and harassed resulting in extreme stress. This case provides insight in understanding the difference between occupational stress, workplace stress, and bullying in the context of workplace bullying.
The High Court adopted the principles created in Quigley v. Complex Tooling and Moulding where the definition of bullying established in the Industrial Relations Act 1990 was accepted by the Supreme Court. The definition states that bullying is, “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise conducted by one or more persons against another or others at the place of work and/or in the course of employment which could reasonably be regarded as undermining the individual’s right to dignity at work.” A single incident that aligns with the behaviour described in this definition may effect dignity at work but as an isolated incident it is not considered bullying. Bullying must involve an objective element, not simply a subjective test. Otherwise most employers would be accused of bullying by an employers subjective perception of the act.
Safety, Health and Welfare at Work Acts 2005-2014
These acts provide a framework for employers and broad general duties to strive for better health and safety, including the prevention of excessive stress in the workplace.
The 2005 Act includes a set of duties for employers to follow including managing and conducting workplace assessments in a way that reasonably protects the health and safety of the employees. It also consists of duties that will prevent employees from exhibiting improper behaviour that threatens the health, safety and welfare of the other employees.
The 2005 Act presented employers with new obligations to undertake a risk assessment and be aware of any hazards to the safety, health, and welfare of employees. They must prepare a safety statement after carrying out the risk assessment. The written safety statement identifies how health, safety, and welfare are to be ensured in the workplace. It also specifies the risks and hazards discovered in the investigation. It also needs to explain what resources are provided and the preventative measures that the employer is taking in the workplace. The statement must identify what kinds of cooperation are necessary between the employee and the people responsible for safety related tasks. This statement should be a form that is easily understood by all employees. A copy must be readily available for inspection in its related place of work and should be brought to the attention of any new employees and specifically those that are exposed to a specific risk. Lastly, the statement must specify all arrangements made in regards to appointments with safety representatives and members of the safety committee.
The Health and Safety Authority published a guide to help employers understand their responsibilities relating to workplace stress. The Authority has also created an information sheet to assist employees in coping with and overcoming stress in Ireland.
This information does not constitute legal or any other advice, but is provided for information purposes only.