Today’s article looks at Catherine Glynn v The Minister for Justice, Equality & Law Reform Ireland and the Attorney General, a High Court decision confirming the standard required to bring a successful bullying and harassment case against an employer.

Case Name And Reference: Catherine Glynn –v- The Minister for Justice, Equality & Law Reform Ireland and the Attorney General. (Judgement of Kearns P, 21st March 2014)

Court Or Tribunal: High Court

Jurisdiction/Subject Matter: High Court Decision 2014 IEHC 133


Facts

Ms Glynn is a civil servant employed in Gort Garda Station, Co. Galway where she performs clerical duties since 1979. Ms Glynn alleged harassment in relation to incidents occurring in 1996 and alleged bullying over a four day period in May 2005 against her superior, Superintendent Mockler (“Supt Mockler”).


Background

1996

Renovations took place in Gort Garda Station in 1996 resulting in Ms Glynn performing her duties in a portacabin. She shared a desk with Garda Callaghy and had to pass the Garda to get in and out of her seat. She alleged that the Garda would not permit the windows to be opened during the summer months and that there was no heat for her during the winter. She felt that Garda Callaghy was constantly checking up on her and she was also blamed by Supt Mockler for documents going astray.

Ms Glynn was “very stressed” by these circumstances and took sick leave as a result from November 1996 to May 1997.


Allegation Of Harassment

In December 1996, Supt Mockler invited Ms Glynn to a meeting to outline her difficulties at work. The meeting took five hours and Ms Glynn said that it was unfair because there was no lunch break.

In January 1997 (while she was still absent on sick leave), Ms Glynn alleged that the Superintendent telephoned her home on three occasions in one day. She says that this was harassment while she was absent from work on certified leave. Ms Glynn hung up the phone on the first call and had her husband answer and say that Ms Glynn was out of the house on the second call. On the third telephone call, Supt Mockler had to ask another officer to call on his behalf and then transfer the call to him.

Ultimately her GP phoned Supt Mockler and asked him to desist from calling Ms Glynn.

2004

Ms Glynn was promoted to Finance Officer but could not fill the role until such time as Garda Callaghy either moved or retired from the role.


Allegation Of Bullying

2005

On 9th May 2005, Ms Glynn was asked to commence the duties of Finance Officer as Garda Callaghy was out of the office. The task was to complete monthly accounts for the Gort Garda Station on Garda Callaghy’s computer. She says that she had to work under considerable stress over a four day period. There was also an allegation that Supt Mockler threw an expense cheque at her across a table.

Ms Glynn was subsequently certified sick, suffering from inter alia migraine type headaches and panic attacks. She remained absent from work until July 2006 when Supt Mockler had retired.


Pleadings

In the proceedings Ms Glynn denied a pre-existing psychological condition however, it emerged during cross-examination when her medical records were opened that she suffered from (and was treated for) depression in 1995.


Defence

Ms Glynn’s employers defended the case as follows:

1. Upon receipt of the medical certificate in 1996 stating “work related stress” Supt Mockler invited Ms Glynn to meet to discuss her difficulties at work.

2. Ms Glynn refused to put her complaint in writing when requested to do so by the Employee Assistance Service.

3. A representative from the Employee Assistance Service invited Ms Glynn to meet to discuss her complaint at a venue outside Gort chosen by Ms Glynn. The representative drove from Dublin and waited for two hours for Ms Glynn but she never arrived.


Legal Principles

The President of the High Court stated that occupational stress is not actionable as it is something that every employed person may experience during their working life and it can occur for reasons which are quite distinct and unrelated to bullying.

Workplace stress may be actionable if certain legal criteria are met. The President relied on the definition of bullying as recommended in the 2001 Task Force in the Prevention of Workplace Bullying. He held that the wording requires an objective test to determine if bullying has occurred.

The “repeated” inappropriate behaviour in this case happened over a four day period in 2005 when the Plaintiff was asked to complete the accounts.

The President referred to the test set down in the Berber –v- Dunnes Stores case which may be briefly summarised as follows:-

1. The ordinary principles of employer’s liability apply.

2. Is the injury reasonably foreseeable? If so, is it an injury to health as distinct from occupational stress? Is the injury and attributable to stress at work?

3. Foreseeability depends on what the employer knows about the individual employee.

4. The employer can take what he is told by the employee at face value unless there is good reason to think to the contrary.

5. The indications of impending harm to health arising from stress at work must be plain enough for a reasonable employer to realise it. The employer is only in breach of his duty if he has failed to take steps which are reasonable in the circumstances to prevent it.


Decision

The President felt that two issues “greatly exercised” Ms Glynn in the case, namely:-

1. That she was a civilian employee not being paid the same rate for the same work as her Garda colleague.

2. That her working conditions in 1996 were unsatisfactory and conducive to workplace stress.

He said that there was no bullying by Garda Callaghy or anyone else.

He commented that there was no acceptable explanation for Ms Glynn’s failure to disclose her prior medical history, an omission which was “enormously significant” given that so much turns on the credibility of the witnesses on both sides.

He found that there was no harassment in relation to the telephone calls made by Supt Mockler in 1997 as he was perfectly entitled to make such telephone calls.

The events in 2005 did not constitute bullying and harassment. He also made the comment that it was “remarkable the length of the interval between the 1997 issues and those raised again in 2005”. The President commented that the four day incident, described as a few short days, was not “repetitive inappropriate conduct” as suggested under the 2001 definition.

The Plaintiff’s case was dismissed in full.


Legal Analysis

This case ran for 5 days in the High Court with its Judgment reserved. It highlights the length of time that can be spent on discussing the minutiae of workplace issues. The President specifically commented that “a considerable amount of time was taken up during the Court hearing...in trawling through this period of [Ms Glynn’s] discontent about her workplace, it does not of itself form any part of [Ms Glynn’s] claim for damages”.

Ultimately, this decision appears to have come down to a number of factors:-

1. The credibility of the evidence in circumstances where Ms Glynn failed to disclose her medical history.

2. The failure of Ms Glynn to engage with the Employee Assistance Service (to include refusing to make a written complaint through the internal procedures).

3. The fact that the main allegations of “bullying” related to a four day period in 2005, in the context of an employee’s employment since 1979.

Ms Glynn failed to satisfy the Berber –v- Dunnes Stores test and failed to satisfy the criteria set down in the recommended definition of workplace bullying.