• it should not be used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation;
• it should not be used by a manager to avoid their managerial responsibilities;
• a decision about right or wrong is needed, for example where there is possible criminal activity;
• the individual bringing a discrimination or harassment case wants it investigated;
• the parties do not have the power to settle the issue;
• one side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome.

There are however examples where Mediation is appropriate; namely :

• for disputes involving colleagues of a similar job or grade, or between a line manager and their staff;
• at any stage in the dispute as long as any ongoing formal procedures are put on hold, or where mediation is included as a stage in the procedures themselves;
• to rebuild relationships after a formal dispute has been resolved;
• to address a range of issues, including relationship breakdown, personality clashes, communication problems, bullying and harassment.

If you, as an employer, are considering using Mediation to resolves a dispute within the workplace be careful to ensure that the process will not prejudice you in the defence of a subsequent claim should the process work. For instance, if an aggrieved employee is intent in having a harassment claim investigated regardless of the facility of Mediation you could be only making matters worse by putting that employee and the other employee (about whom the complaint is made) in face to face meetings in a Mediation process.
If unsure, why not contact Brian Morgan solicitor of Morgan McManus solicitors in advance at bmorgan@morganmcmanus.ie or phone him at 0035347 51011.
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Section 25 of the Civil Liability & Courts Act 2004 makes it a criminal offence for anyone to knowingly give false or misleading evidence in a Personal Injuries Action. For more information,  see  the Litigation and Accident Claims section of the Morgan McManus website on the Civil Liability & Courts Act 2004 -   http://bit.ly/gYgt74 . There is no doubt that the High Court Judge had this section in mind when he subsequently warned the Plaintiff  Mr McKenna that he did not have to answer in cross-examination any question which might incriminate him.

Other Plaintiffs have in the more recent past had their Claims dismissed for giving false and misleading evidence. A message is now being very clearly sent out that Plaintiffs who give false evidence in their compensation claims risk imprisonment.

We advise on matters of which you should be aware when submitting your Compensation Claim, the disadvantages of the PIAB Claims process and why you should instruct a Solicitor every occasion before you submit a Claim.

Managers should never raise their hands to employees but sometimes they feel threatened or nervous and things can get out of hand, as happened in the recent case of Co-Operative Group (CWS) Ltd v Pritchard [2011] EWCA  - http://bit.ly/hCXu8Z .   It involved an employee who was upset at not being given a day off and confronted the manager. She and her sister shouted abuse and used foul language. When the employee refused to leave the store, the manager grabbed her arms and tried to march her out of the store. He was bitten and the employee fell down some steps and was hurt. She argued she had a near complete psychiatric breakdown, depression and agoraphobia. The total sum of damages under all heads awarded to Miss Pritchard was £142,760.77, inclusive of interest.

Had this been a simple employment case and the employee dismissed for unfair dismissal, the employer would have argued contributory fault or negligence to counteract any award. However, the Court of Appeal concluded that there is no such defence of contributory negligence in the case of an "intentional tort" such as assault and battery. The damages could not therefore be reduced on that ground.
This case should be an example to all employers of the liability which can arise on the part of the employer for acts of its employees, even in circumstances where actions undertaken by the employee in defence of the employer`s premises / business may have appeared justified; particularly in circumstances where the third part was making an abusive confrontation.

Thanks to Legal Ireland – www.legal-island.com  for bringing to the case to our attention.

Until some years ago the concept of employer`s liability in respect of their employees had generally been related to physical injury claims. However, in more recent times considerable attention has been focused upon the employer`s liability for physical and psychological (or psychiatric) illness caused by stress suffered by employees in the course of their employment.

 What is Workplace Stress?

Workplace stress arises when the demands of a person’s job and/or the working environment exceed the person’s capacity to meet them. For example, this could be caused by lack of training, poor workplace environment (noise, heat, humidity, lack of space etc.), poor working relationships, dull repetitive work or highly demanding tasks. In addition, the interaction between managers and their subordinates is increasing through email, resulting in less social interaction.

While the pressure of challenge can be a positive force in the workplace, when demands become excessive they may create a stress process that threatens the employee’s physical and/or psychological well being. The effects of stress within the workplace may result in higher than average staff turnover, increased levels of absenteeism, low morale, excessive accident rates and ultimately the possibility of legal action being taken against the employer.

Large Awards

Employers mistakenly assume that Stress Related Claims are “employment claims” and are therefore of relatively small compensation value. These types of claims are however generally pursued as Personal Injury claims through the High Court and have the potential to be enormous. For example, the victim of sustained bullying while working for Mercury Mobile Communications Services, part of the Cable & Wireless Group, was awarded over £370,000 in compensation by the High Court in England in 2001.That said, the Awards by Irish Courts are generally lower.

Potential Breach of Health & Safety Legislation

The Health and Safety legislation in both the Republic of Ireland and Northern Ireland obliges employers to identify and safeguard against all risks to health and safety. Controlling workplace stress is no more optional than the control of any other hazard. If an employer fails in its duty of care to employees this may result in a civil action for compensation by the employee but it may also be a breach of the criminal law.

Potential for Disability Discrimination Claims

In addition to the Employment Equality legislation in each jurisdiction stress claims have potential implications for such workplace claims by providing other potential avenues of legal redress for the stressed employee if the stress complained of is caused by discrimination under any of the grounds cited in the discrimination legislation. For further information see Morgan McManus  articles on Occupational Stress Claims http://bit.ly/kuphcy .

It should be noted that the duty upon an employer is not an unlimited one. The onus is on the employee to show that the injury suffered was foreseeable and was caused by conditions in the workplace as opposed to some other factor. That is, it must be work-related and not, for instance due to domestic issues. In addition, the employee must prove a recognisable psychiatric illness. The employer will then be required to show that he acted reasonably in all the circumstances.

What Steps Can Employers Take to Safeguard Themselves?

Where employers are aware that a workload, or conditions of work, are particularly stressful, measures should be taken to reduce the workload and/or improve conditions.

Problems are more likely to come to light, and be dealt with effectively and in a timely fashion if the organisation adopts a clear policy on occupational stress and stress prevention as part of its management arrangements and as part of its safety policy. The key to the success of the policy is to show that it has the full support and commitment of senior management. This will invariably involve action to raise awareness of the issue. The policy should acknowledge that work related stress is not a personal problem nor a weakness but an issue which the organisation as a whole can address.

If stress is giving rise to risks in the workplace the employer must address it not only in a policy as outlined above but also in the organisation’s Safety Statement. The Safety Statement should also emphasize the duty of care imposed on employees to take care of their own health and safety whilst at work.

 Employers Must Exercise Caution in Dismissal Cases

In the Irish case of Croke v. Oran, heard on the 29th November 2007, which concerned the failure of an employer to take into account properly the fact that a key employee was suffering from depression, the employee was awarded over €35,000 in compensation. The Claimant (employee) who suffered from a depressive illness was dismissed by the Respondent (employer) after being promoted to a more senior position. The Respondent conceded from the outset that the Claimant had been unfairly dismissed but contended that as the Claimant had been unavailable for work since the dismissal, he had suffered no loss attributable to the dismissal. The Claimant argued that the treatment he received from the Respondent during the period of employment when he was promoted had contributed to his current stress related illness.

The Tribunal determined that the Claimant had made the Respondent aware of his depressive illness and that the Respondent had nonetheless placed more responsibility on the Claimant by promoting him. The Tribunal also determined that the Respondent had not made a genuine effort to assist the Claimant with the increasing level of stress that resulted from the increased demands of his new role, such as providing training or an in-service course to assist with his promotion.

 Check Your Employer`s Liability Policy to Ensure Cover

Employers should check the company’s employer liability insurance to confirm that it covers awards in such cases, since psychiatric illness, by reason of the debilitating effect on the sufferer, may result in an enormous claim for loss of future earnings capacity. If in doubt, consult your Insurer.

Conclusion

Stress in the workplace is an important health and safety issue which cannot be ignored. By implementing appropriate measures, including measures such as those outlined above, employers should be able to reduce the risk of potential litigation.

   Read the BLOG by Brian Morgan solicitor http://bit.ly/lGCSbt  titled An Employer`s Liability for       Suicide dated 15^th May 2011 on the website of Morgan McManus solicitors www.morganmcmanus.com  .

 The case arose following the death of a toolmaker who was hit on the left side of the head by an extended bar and drill which came from a tool milling machine at a high velocity. The fatal accident occurred in March 2006, some months after an incident in 2005 which should, the judge said, have acted as a warning. The worker died in hospital two days after the accident.

 Following the fatal accident and an investigation by the HSA, which was commended by Judge Kennedy for its “diligent and thorough, exhaustive investigation”, the company was charged with:

• Contrary to the SHWW Act 2005, section 14, with placing at risk the safety, health and welfare of persons at work at a tool milling machine by permitting interlocking devices on the machine to remain disabled so that the machine was capable of being operated at unrestricted spindle speeds with guard doors open as a consequence of which a worker suffered personal injury (the change did not accuse the company of acting recklessly or intentionally)
• Contrary to the SHWW Act 2005, section 8(1) failing to ensure, in so far as reasonably practicable, the safety, health and welfare of employees as a consequence of which personal injury was suffered.             

 One of the directors was charged on both counts and all three directors were charged under section 14 (again they were not charged with acting recklessly or intentionally). The company and directors pleaded guilty to the charges. The charges related to offences committed between September 2005 and March 2006.

 Having complimented Inspector Kevin Broderick for the clarity with which he presented technical evidence, Judge Kennedy found all three directors “equally to blame”, though he did say one of them (Eugene Sheil) co-operated with the investigation. He said there was no evidence that the other two directors did so. He spoke of those two directors, “two monkeys” approach of seeing and hearing no evil and said they had shown “equivocation and prevarication”.

 He described the company’s paperwork as “sham paperwork, to show everything was correct when it was not”. He found the company had by passed interlocks, used a home made extension bar (about which he made a scathing comment), had used grub screws, ignored warnings on machines, provided no inspection or supervision and “indeed disabled the safety system”. Commenting on counsel’s submission, in a plea of mitigation, that the company had a good safety record Judge Kennedy agreed there were “no previous convictions”, but spoke of the “woeful failure to learn from an incident in 2005″ and said “on the contrary their record was deplorable”.        

 He imposed a fine of €50,000 on the company and ordered it to pay the DPP’s costs of €14,000 and the HSA’s costs of €7,383. He imposed a one year prison sentence on each of the directors, which he suspended without conditions. (DPP for HSA v Technical Engineering and Tooling Services Limited, John Hunt, Tommy Kelly and Eugene Sheil: Mullingar Circuit Court, sitting in Tullamore. The June issue of HSR will carry a full report on the case).  

Thankyou to http://www.healthandsafetyreview.ie/ for this information.

Dangerous Machinery

Accidents at work involving machinery are common and can cause severe injury. Sometimes the machinery is unsafe. Sometimes a fellow worker has been careless. Sometimes inadequate training has been given in safety procedures.

Disease, Deafness & Other Long-Term Injuries

Some diseases and disabilities may not become apparent for some years after the damage first arises. Although a Claim generally has to be brought within 3 years (Northern Ireland) / 2 years (Republic of Ireland) of the cause, in cases like these the time limit can be extended.

Lifting Heavy Objects

Back pain is one of the most common types of work injury which can result in a work compensation claim. Injuries sustained at work can lead to considerable time off while recovering. If the employee’s job involves lifting heavy items, the risk of injury should have been assessed by the employer and the employee should have been trained how to lift safely.

Hazards at Work

Holes in the floor, dangerous steps and ladders, slippery substances on floors and stairs, obstacles obstructing passageways, trailing cables, discarded plastic on the floor, excessive noise and inadequate ventilation or protection from fumes, are all examples of hazards which commonly cause injury. If the employer fails in their duty to take reasonable care for the employee’s safety in any of these incidences, it is highly possible that the employee would be able to make a work accident claim.

Training & Safety Equipment

If an employee has suffered injury as a result of inadequate training and safety procedures, lack of safety clothing or because of careless fellow workers it is likely that he would be able to make a claim.

DOWNLOAD the Morgan McManus Accident Claims Guide at :

http://www.morganmcmanus.com/litigation/Claim_Guide.pdf