Maurice quinlan by Keith Twamley

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

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Managing Workplace Behavioural Health Risks

A paper presented to the Health and Safety Review Annual Occupational Safety and Health Conference OSH Pays Dividends – The Economic and Social Benefits At Moran Red Cow Hotel, Dublin 22 Thursday 14th May 2015 Presented by Maurice Quinlan Director EAP Institute 143 Barrack St. Waterford Email: maurice@eapinstitute.com www.eapinstitute.com 087 2399 087

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Introduction – From Duty of Care to Reasonable Accommodation Good afternoon I would like welcome you to this presentation and thank Health and Safety Review for the opportunity of presenting at this conference. A little bit of background. The EAP Institute commenced operations to provide Occupational Alcoholism Programmes (OAPs) and Employee Assistance Programmes (EAPs) in brewing, shipping and manufacturing companies. Working for over 30 years in Ireland, Scotland, London, Switzerland, Italy and Greece much experience has been gained by the Institute on aspects of personal behaviour that impact on people’s lives and their work. Since the introduction of the Safety, Health and Welfare at Work Act 2005 and The Employment Equality Act 1998/2011 the Institute has focussed on developing high value consulting and training for workplace intoxicants (defined as drugs and alcohol), employee health and wellbeing and recently, workplace behavioural health risks. Learning objectives: Those attending this presentation will learn about the following

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The evolution from duty of care to reasonable accommodation and the implications for business. How to obtain economic dividends and loss prevention. How to conduct a behavioural risk assessment for all risks, including disabilities and mental health.

The contents of this presentation will include: • Personal family experience of the economic and social costs of a parent who reported for work under the influence of intoxicants and the economic and social consequences that followed. • Case law on the evolution from duty of care to reasonable accommodation. • A template for conducting a behavioural risk assessment for all risks. • Learning from family experience.

In compiling this presentation I have endeavoured to quote references and research and include them in the reference section. In the event of any inaccuracies, please advise me after the presentation and I will make any necessary changes. Work stress – Award for Psychiatric harm Historically, the workplace health and safety response in Ireland commenced with the Barrington Commission in 1983 and the Safety, Health and Welfare at work Act passed into law in 1989. The initial focus of this act was on physical hazards such as slips, trips, falls, hazardous machinery and chemicals. The duty of care concept was established in the Walker case, Walker vs. Northumberland County Council (1994).

The Judge’s view was that: “Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employee as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of the duty of care.” Walker was awarded £200,000 for breach of duty of care.

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ The Duty of Care The Judge in outlining the basic proposition in relation to duty of care in the Walker Case said: It is now clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Quinn vs. Servier Laboratories (Irish High Court 1999) Five years later the first case of an employee seeking damages for workload causing a mental injury came before the Irish Courts. Quinn brought a case against his employer Servier Laboratories, and claimed that he suffered two nervous breakdowns due to work overload. He sued his employer and the case was settled for a six figure sum. The Hatton Propositions: English Court of Appeal (2002) While the judgment has generally been seen as placing limits on employers’ liability in work-‐ related stress cases, it also makes clear the issues employers will have had to address if they want to avoid liability in such cases. The principles applied by the English Court of Appeal have been followed by the Irish courts, in the McGrath v Trintech and Maher v Jabil cases. McGrath v Trintech (High Court 2004) While on sick leave during October and November 2002 McGrath was requested to go on assignment in Uruguay. Following his return to Ireland in June he was absent on sick leave. In August 2003 he was informed he was made redundant. He initiated court action including damage for personal injury and loss of good health. McGrath was awarded €69,026 for breach of contract, €10,500 for holidays and €3,000 for expenses incurred. His claim for personal injury was dismissed. The effect of the judgment is that the Irish courts recognized that employers were under a duty to deal with stress in the safety statement, based on a risk assessment. Justice Laffoy considered the allegations of breach of duty, considered the issues of foreseeability and applied the Hatton Propositions. Critical Incident Stress (arising from industrial accidents, fire, explosion and workplace violence) In the aftermath of traumatic incidents, those working in the Fire service, Gardaí and Prison Service and other frontline services may experience Acute Stress Disorder (ASD) and Post-‐ Traumatic Stress Disorder (PTSD). A recent incident involving three prison officers who were assaulted highlighted the fact that €5.5 million has been paid in compensation for traumatic injuries. Employees in other sectors of business may be affected by witnessing industrial accidents, fire, explosion and workplace violence. When the Regulation on Community Statistics on Public Safety and Health at Work (EC1338/2008) (currently with the Health and Safety Authority (HSA) is finalized, employers will be required to report to Eurostat Statistics on occupational health disease and other work related problems. Included in the list of reportable illnesses is PTSD. ________________________________________________________________________ EAP Institute © 2015

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Workplace Violence There have been many awards to employees who have been assaulted in the course of their work. A new trend emerged where the High Court held that an employer was vicariously liable for an injury sustained by an employee assaulted by a fellow employee. In making an award of €33,984, Mr. Justice Herbert quoted section 8(1) of the Safety, Health and Welfare at Work Act 2005, where the employer has responsibility to prevent any improper conduct or behavior likely to put the safety and health of employees at risk. Workplace Bullying The first case to come before the High Court in 2001 was Shanley v Sligo Corporation. Working in the Fire Service, Mr. Shanley claimed he was bullied by a superior officer over an 8 year period. He was awarded €82,532. Liz Allen took an unfair dismissals claim at the Employment Appeal Tribunal (EAT) in 2001. Allen resigned alleging constructive dismissal and was awarded €89,464. Other successful bullying claims included a retired detective garda who was awarded €85,000 (€55,000 for bullying). A hospital worker who claimed bullying and a back injury was awarded €90,000 (€60,000 for bullying). A recent survey by the Irish Nurses and Midwifes Organization (INMO) indicates that there are 100 claims by nurses for alleged bullying. Intoxicants – Emergence of Reasonable Accommodation. In March 2006, the Labour Court upheld the principle that alcoholism is a disability under the Employment Equality Acts 1998–2011. The decision in A Government Department –v-‐ An Employee crystallizes the principle that alcoholics cannot be treated less favourably at work. Section 16 (a) of the 1998 Equality Act provides that an employer shall do “all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities and that a refusal or failure to provide special treatment or facilities shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost to the employer.

Employee Appeals Tribunal (EAT) determination UD No 1429/2011, July 2013: O’Donnell v Stafford Miller (Ireland) Limited. Dismissed employee with alcohol problems awarded €10,000+ In December 2010 a worker who had a history of absence from work was dismissed. He appealed the decision to dismiss him. The Tribunal noted that during the appeal process that it emerged that the worker “had an alcohol related problem”. During the hearing it also emerged that at earlier stages, before the employee was dismissed he had suggested a various times that his problems were due to lack of sleep and to stress caused by management. He had been offered counselling and had been referred to the occupational health nurse, who made him aware of the employee assistance programme. The company appeals process upheld decision to dismiss the worker.

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Croke –v-‐ Oran, UD 967/2006, MN631/2006. 29 November 2007. Dismissed Employee with Depression Awarded €35,000. An employee who suffered from a depressive illness was dismissed by his employer after being promoted to a senior position. The Tribunal determined that the employee made his employer aware of his depressive illness prior to his promotion. The Tribunal determined that the respondent had not made a genuine effort to provide training or an in-‐service course to assist with his promotion. The Tribunal awarded €39,000 for unfair dismissal and the stress related illness under The Unfair Dismissals Act 1973 to 2001. Limiting Economic Exposure – Conduct Risk Assessment and Update Safety Statement Section 19.-‐(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be knows and referred to in this Act as a “risk assessment”) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions. Section 20.-‐(1) Every employer shall prepare, or cause to be prepared, a written statement (to be known and referred to in this Act as a “safety statement”), based on the identification of the hazards and the risk assessment carried out under section 19 specifying the manner in which the safety, health and welfare at work of his or her employees shall be secured and managed. Action Checklist – Workplace Behavioural Health Risks Safety Health & Welfare at Work Act 2005. Work Stress (overload) [ ] Critical Incident Stress

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Workplace Violence

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Workplace Bullying

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Intoxicants (defined as drugs & alcohol)

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Disabilities

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Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

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Risk Assessment – Workplace Behavioural Health Risks

Hazards / Task

Work Stress (overload)

Those at risk

All staff members. Injury to mental health which is foreseeable. Put in place policies and supports. Identify all sources of work related stress. Incorporate the Hatton Propositions.

Risk: / harm Prevention and Control Measures Action

Provide reasonable accommodation and support. Controls Monitored by Human Resources and Health and Safety Departments Hazards / Task

Critical Incident Stress

Those at risk

Employees who experience or witness traumatic incidents.

Risk: / harm

Acute Stress Disorder. (ASD)Post Traumatic Stress Disorder(PTSD) Identify front line staff at risk. Provide resilience training and support services in the aftermath of a traumatic incident.

Prevention and Control Measures Action

Provide reasonable accommodation. Controls Monitored by Human Resources and Health and Safety Departments.

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

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Risk Assessment – Workplace Behavioural Health Risks

Hazards / Task

Workplace Violence

Those at risk

Violence among colleagues. Violence between an employee and a client/patient/student. Domestic violence; when the perpetrator has a personal relationship with the victim who was assaulted at the workplace – e.g. family member, boyfriend or girlfriend. Criminal violence; when the perpetrator has no legitimate relationship to the business and uses violence to perpetrate a crime – e.g. robbery, shoplifting. Risk: / harm Assault bodily injury and trauma Prevention and Procedures and training in place to minimise risks. Control Measures Action

Provide reasonable accommodation. Controls Monitored by Human Resources and Health and Safety Departments. Hazards / Task

Post-‐Traumatic Stress Disorder

Those at risk

Staff members who witness or experience traumatic incidents.

Risk: / harm

Injury to mental health, loss of sleep, nightmares. Debriefing protocol following serious incidents.

Prevention and Control Measures Action

Provide reasonable accommodation. Controls Monitored by Human Resources and Health and Safety Departments.

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

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Risk Assessment – Workplace Behavioural Health Risks

Hazards / Task

Workplace Bullying

Those at risk

All employees

Risk: / harm

Psychological injury

Prevention and Control Measures

Implement three codes of practice on bullying and harassment in the workplace. Dignity at work policy and training Action Provide reasonable accommodation. Controls Monitored by Human Resources and Health and Safety Departments Hazards / Task

Intoxicants (defined as drugs and alcohol)

Those at risk

Employees reporting for or on duty under the influence of an intoxicant. Endangerment of self or others. Conduct risk assessment for safety critical workers. Provide reasonable accommodation. Develop procedures for removal from place of work.

Risk: / harm Prevention and Control Measures Action

Provide reasonable accommodation. Controls Monitored by Human Resources and Health and Safety Departments. Safety Hazard

Identified safety critical tasks Identified safety critical worker

Risk/Harm Prevention and Control Measures

Reporting for or being on duty under the influence of an intoxicant (defined as drugs and alcohol) contrary to Section 13(1)b of the Safety Health and Welfare at Work Act 2005 D rivin g o r attem p tin g to d rive a veh icle in th e catego ry C , C 1, D , D 1, EB, EC , EC 1, ED , ED 1 w ith a co n cen tratio n o f alco h o l o f 20/m g/100m l. A ll th o se d rivin g in th e co u rse o f th eir w o rk. Pro fessio n al D rivers (G o o d s, B u s, Pu b lic Service V eh icle e.g. Taxi) Pro p o sed Testin g in N ew Traffic B ill Serious injury to self or others Remove from place of work and safety breach dealt with in line with policies and procedures. In the event of an accident, conduct post accident intoxicant testing. Not fit to drive to work (Road Traffic Act 2014) Not fit to be at work (Safety Health and Welfare at Work Act 2005) Disability – Provide reasonable accommodation (Employment Equality Act 1998/2011)

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Legislation: Mental Health and the Workplace It is important for employers and employees to know about their legislative rights and responsibilities in relation to mental health at work. Two of the most relevant pieces of legislation are the Employment Equality Acts 1998–2011 and the Safety, Health and Welfare at Work Act 2005. The Employment Equality Acts 1998–2011 This section provides an overview of issues employers need to consider in relation to equality and mental health. The accompanying publication, Case Law Review on Mental Health (Barry, 2014), provides an in-‐depth analysis. The purpose of the Employment Equality Acts 1998–2011 is to promote equality and prohibit discrimination across nine grounds, including the ground most relevant to mental health: disability. Definition of Disability Depression, reactive depression, stress, anxiety and depression, severe generalised anxiety disorder, alcoholism, claustrophobia, agoraphobia, schizophrenia, anorexia, stress, work related stress. (Barry, 2014) List of Disabilities – Employment Equality Act 1998 to 2011 Depression

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Reactive Depression

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Anxiety & Depression

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Severe Generalised Anxiety Disorder

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Alcoholism

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Claustrophobia

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Agoraphobia

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Schizophrenia

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Anorexia

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Stress

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Work Related Stress

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Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Risk Assessment – Mental Health The HSA Workplace Health and Wellbeing Strategy include mental health issues as follows; anxiety, depression, major mood disorders, stress, effects of bullying and the psychological aspects of depression. Section 23 of The Safety, Health and Welfare at Work Act 2005 contains proposals for regulations on employee mental health. Depression & Anxiety Bi Polar Disorder

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Addiction Paranoid Schizophrenia Psychosis

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Suicide Ideology

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Mental Health Risks Hazards / Task Those at risk Risk: / harm

Prevention and Control Measures Action Controls Monitored by

Depression and Anxiety All employees Lack of concentration, indecisiveness, and forgetfulness. Absenteeism and presenteeism harm the interpersonal relationships between friends, family, and colleagues Pre-‐employment assessment for mental health early intervention, and treatment. Provide reasonable accommodation. Occupational Health and Mental Health Professional

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Hazards / Task

Bi-‐polar Disorder

Those at risk

All employees

Risk: / harm

Decreased concentration and memory, repetitive thinking, difficulty in decision-‐making, negative thinking, lack of objectivity.

Prevention and Control Measures

Self-‐management is about recognizing triggers of an episode of mania or depression and managing one’s lifestyle around avoiding these triggers. Some of the most common triggers are sleep deprivation, bereavement, relationship problems, and in some cases, a reaction to excess amounts of caffeine, alcohol or cigarettes.

Action

Increased understanding and education for staff on mental health issues, action to combat workplace stresses opportunities for early intervention facility to grant periods of leave for adjustment to medication action planning for a positive return to work. Occupational Health, Mental Health Professional

Controls Monitored by

Hazards / Task Those at risk Risk: / harm

Paranoid Schizophrenia All employees Social withdrawal, Hostility or suspiciousness, Insomnia or oversleeping, Depression, Deterioration of personal hygiene, Odd or irrational statements, Flat expressionless gaze, Forgetfulness and unable to concentrate, Extreme reaction to criticism, Unusual use of words or way of speaking, Inability to cry or express joy.

Prevention and Control Measures

Consult GP. Refer to a psychiatrist for initial assessment and treatment. Treatment for schizophrenia includes a combination of medication and psychological therapy, Behavioural therapy and social therapy. Treatments are selected on the basis of their ability to reduce symptoms and reduce the chances of recurrence.

Action

Families and friends can have a vital role in helping recovery and reducing the likelihood of relapse. Contact Schizophrenia Ireland for your nearest local group (1890 621 631 or www.sirl.ie)

Controls Monitored by

Occupational Health and Mental Health Professional

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Hazards / Task

Psychosis

Those at risk

All employees

Risk: / harm

Being overactive / or less active. Social isolation / withdrawal. Reduced ability to work / go to school. Sleeping or eating poorly. Odd / strange behaviour. Deterioration in personal hygiene. Drug or alcohol abuse. Personal reassurance to the person that the myths about mental health care portrayed by the media are often inaccurate. The treatment of mental health conditions has evolved substantially in recent years. Often people can be treated in an outpatient setting and do not need to be admitted to hospital. Family member / friend may be experiencing symptoms that the GP believes warrants further assessment. If so, the GP may refer the person to specialist mental health services

Prevention and Control Measures

Action

Family support is crucial to recovery and the more families know about psychotic illness the better they are able to help.

Controls Monitored by

Occupational Health Physician and Mental Health Professional

Hazards / Task

Suicide Ideology Confined to a section of the workplace population Self-‐harm, injury, death The workplace can act as a setting for suicide prevention in three basic ways, first by supporting positive mental health promotion, second by responding in a supportive way when employees are under stress or strain for whatever reason (such as having an alcohol problem, an experience of bullying or having family problems) and third, by developing protocols of response when suicidal behavior occurs aimed at helping to minimize the negative impact.; Review existing resources and establish best practice in the provision of health information, psychological support services and critical incident response in the workplace and among those who may work in isolation such as farmers and disseminate this information to all employers, employer bodies or relevant representative organisations including, for example, the Irish Farmer’s Association Occupational Health and Mental Health Professional

Those at risk Risk: / harm Prevention and Control Measures

Action

Controls Monitored by

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ In summary This presentation has outlined the evolution from duty of care to the emergence of reasonable accommodation and a sample of case law outlining the economic costs of personal injury claims. The law cases also provide indication of action employers can take to reduce personal liability. The Hatton Propositions make clear the issues employers will have to address if they wish to reduce liability and in the McGrath vs. Trintech case, the Irish Courts recognized that employers were under duty to deal with stress in the safety statement, based on a risk assessment. Note: A copy of this paper will be available at the conference and will be posted on the EAP Institute website. The link will be advised to Health and Safety Review.

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ International Trends in Workplace Homicide and Violence in the United States There is the growth in the number of serious shooting incidents in the US and Europe. In Mount Morris Township, Michigan a six year old boy shot and killed a six year old girl at Buell Elementary School and this was followed in May 2001 by a sixteen year old who, upset over relationship difficulty, took seventeen hostages in English class and shot and killed himself and a girl. This was followed in August and September by shootings in Hillsborough, North Carolina and Pittsburgh, Pennsylvania. In North Carolina a student shot his father to death and then opened fire at his high school injuring two students. In a Pennsylvania incident five university basketball players were wounded after a shooting on campus after a dance. At Tacoma, Washington in January 2007 an 18 year male high school student was arrested for shooting and killing a seventeen year old male student at their school. The trend is not confined to the USA, At Dunblane in Scotland in 1996 sixteen children and one teacher were killed at Dunblane Primary School. This was followed in March 2000 in Brandenburg in Germany when a fifteen year old student shot his teacher and then killed himself. In another incident in Erfurt, Germany in April 2002 thirteen teachers, two students and one policeman were killed and ten others wounded by nineteen year old Robin Steinhaeuser. Other European incidents included Bosnia-‐Herzegovina where one teacher was killed and another wounded by a seventeen year old who then killed himself. Further a field, in Argentina three students was killed and six wounded in September 2004 by a 15 year Argentinean student and in Montreal, Canada, a 25 year old opened up with a semi-‐automatic weapon at Dawson College, one student died and more that a dozen students were wounded. What is also a concern, is the growing risk of violence and according to new figures on US workplace violence issued by the National Institute of Occupational Health and Safety (NIOSH) on 24th November, out of 7.1 million companies in the United States, five per cent had an incident within the 12 months related to violence at the workplace. Even though about one third of these establishments reported that the incident had a negative impact on their workforce, after the incident, most of these companies did not do much to change their prevention procedures related to violence after the incident. Only nine per cent of these companies programmed a policy addressing the issue. Violent incidents which occurred at the workplace were classified in four categories by the NIOSH • Violence among colleagues. • Violence between an employee and a client/patient/student. • Domestic violence; when the perpetrator has a personal relationship with the victim who was assaulted at the workplace – e.g. family member, boyfriend or girlfriend. • Criminal violence; when the perpetrator has no legitimate relationship to the business and uses violence to perpetrate a crime – e.g. robbery, shoplifting. ________________________________________________________________________ EAP Institute © 2015

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ Ireland – Violence in the Workplace In Limerick on 5th January 2002, when Grainne Dillon reported to work for the night shift in Jury’s Inn in Limerick, little did she know that this would be her last day at work and that she would be murdered by a Portuguese man Paulo Nascimento. Mr. Nascimento stole €3,313 from the Hotel safe and then confronted Grainne in the restaurant asking for her keys and mobile phone, this was refused by Grainne and this resulted in her being shot twice at point blank range with a single barrel shotgun. A heated argument at the Gresham Hotel, between a restaurant supervisor and the hotel’s chef de partie, over the garnish required on a starter dish, led to the supervisor being awarded €24,000 in compensation by the employment appeals tribunal. The argument involved “foul language” and culminated in the chef threatening to pour boiling water from the bain marie over the restaurant supervisor. Because the hotel could not do without the chef, it was decided to “keep the two apart for the rest of the shift” rather than initiate any disciplinary action. The two argued again two weeks later. New Year’s celebrations by five couples who booked into Jury’s Inns Hotel, Croke Park, ended in the death by stabbing of one of the guests at the hotel, leaving his girlfriend in shock. The incident took place in one of the hotel rooms where the victim was stabbed three times, he later died in hospital. In January 2007 a waitress was stabbed in the back with a steak knife by a man with a history of psychiatric problems. The waitress was chatting with customers when the man stabbed her between her shoulder blades for no apparent reason. This attack came two days after Trevor Clancy who also had a history of mental illness tried to slit a Garda’s throat before stabbing himself to death. The retail sector is also at risk and a store man was struck in the face with a motorcycle chain when he bravely went to the assistance of a Dunne’s security man who was being threatened by a man wielding a bottle. As a result Mr. O’Neill had a horrific experience and sustained injuries to his jaw, nose and neck. He suffered a decrease in his social life and was unable to play sport. Another supervisor experienced a vicious assault which resulted in his nose being broken at Liffey Valley Shopping Centre. The supervisor suffered from depression following the incident and ultimately resigned from his job. On another occasion a Pakistani national entered a Dublin supermarket and set himself alight. Shoppers and security staff were severely traumatised by the incident. In what is a growing list of violent and fatal incidents on workers a Lithuanian man killed a co-‐worker outside a poultry processing plant by stabbing him with a filleting knife. He was subsequently sentenced to 10 years in jail for manslaughter. From the history of violence worldwide, it has emerged that a number of those involved in the fatal shootings or stabbings had a mental or psychiatric history and this raises questions for the workforce in Ireland. What Irish society is experiencing is an increasing number of violent incidents and assaults which invariable will impact on the workplace The murder rate is high and the question arises can this spill over into the workplace. Will a disgruntled employee who is demoted or sacked return to make serious retribution to those who carried out legitimate ________________________________________________________________________ EAP Institute © 2015

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ instructions. It is argued that the absence of a gun society will limit the intensity of such incidents but a number of deaths have been caused by legally held weapons and knives. It would be prudent for employers to conduct, as part of their health policies a behavioral risk assessment and have in place procedures in the event of such an incident. The Safety, Health & Welfare at Work Act 2005 recognizes the new risks and the following are contained in the Act. (Regulations will be required before this section comes into force. 23.—(1) An employer may require an employee of a class or classes, as may be prescribed, to undergo an assessment by a registered medical practitioner, nominated by the employer, of his or her fitness to perform work activities referred to in subsection (2) and the employee shall co-‐operate with such a medical assessment. (2) An employer shall ensure that employees undergo assessment by a registered medical practitioner of their fitness to perform work activities, as may be prescribed, which, when performed, give rise to serious risks to the safety, health and welfare of persons at work. (3) Where, following an assessment under subsection (1), a registered medical practitioner is of the opinion that an employee is unfit to perform work activities referred to in subsection (2), he or she shall notify the employer, by the quickest practicable means, of that opinion and the likelihood of early resumption of work for rehabilitative purposes and shall inform the employee accordingly, giving the reasons for that opinion. (4) If an employee referred to in subsection (1) becomes aware that he or she is suffering from any disease or physical or mental impairment which, should he or she perform a work activity referred to in subsection (2), would be likely to cause him or her to expose himself or herself or another person to danger or risk of danger, he or she shall immediately notify the employer concerned or a registered medical practitioner nominated by that employer who shall in turn notify the employer. (5) Where an employer receives a notification under subsection (3) or (4), he or she shall immediately take appropriate action to comply with his or her general duties under section 8 of the SHWWA 2005 Case Law Dismissed employee with depression awarded €35,000 Croke –v-‐ Oran UD 967/2006, MN631/2006, and Heard on: 29 November 2007, Chairman: Mr J. Fahy B.L. 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. ________________________________________________________________________ EAP Institute © 2015

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ 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. The respondent having conceded the claimant was unfairly dismissed, the tribunal awarded the claimant 35,000 Euro for unfair dismissal and the continued stress related illness under the Unfair Dismissals Acts 1977 to 2001. The Tribunal further awarded 3690.38 Euro being four weeks’ pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2001. COMMENTARY This case highlights that the common law and statutory duty of employers to ensure (as far as reasonably practicable) a safe place of work for their employees includes psychological (or psychiatric) wellbeing as well as physical wellbeing. The Health, Safety and Welfare at Work Act 2005 obliges employers to identify and safeguard risks to employees' health and safety and employers can be prosecuted for breaches of the act. Employers could also face a civil action for compensation from an employee which could result in a large award for loss of future earnings capacity. The employee must be suffering from a recognised illness (such as clinical depression) which is a result of the employer failing to take reasonable steps to ensure the employee’s safety and to protect him/her from reasonably foreseeable risks. Employment equality legislation could also be another mode of redress for workplace stress claims if the stress complained of is caused by discrimination under any of the nine discriminatory grounds. Employers should take appropriate action once they become aware of an employee's suffering, such as reducing the workload of an employee whose conditions of work are particularly stressful. Employers should also put in place procedures to identify problems and take preventative action – such as adopting a policy on occupational stress and having appropriate support mechanisms, such as Employee Assistance Officers, in place. It is interesting to note the two cases that the Tribunal specifically referred to in its determination. Allen –v-‐ Independent Newspapers (Ireland) Limited UD 641/2000 was the landmark case in which the EAT awarded compensation for work related stress suffered as a result of constructive dismissal. In Walker –v-‐ Northumberland County 1995 ALL ER T37 it was held that employers had a duty not to cause their employees psychiatric damage by giving them too much work and/or insufficient back up support. Croke-‐v-‐Oran seems to have been a classic 'Walker' situation. A judgment by the English Court of Appeal, that an employer was liable for the suicide of an employee, gives a sharp focus to the debate on mental health in the workplace. ________________________________________________________________________ EAP Institute © 2015

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ While the report by the National Economic and Social Forum (see news item pg 5) focuses on mental health as a workplace issue, the ruling by the English Court of Appeal will, if it is upheld on appeal by the House of Lords, act as a persuasive precedent in Ireland. This means Irish employers will have to consider that they may be liable in negligence to the families of workers who commit suicide as a result of some workplace incident or pressure. Speaking at the recent Law and Mental Health Conference in NUI Galway, law lecturer Ursula Connolly, in the course of a wide ranging review of the law on the issue, gave details of the Court of Appeal’s judgment in the case of Corr v IBC Vehicles (2007: 1 QB). Connolly told delegates that Mr. Corr, a man of ordinary fortitude, survived a near fatal accident at work in 1996, leading over the next six years to his suffering an escalating depressive illness, which culminated in his suicide in 2002. In a majority decision, the Court of Appeal held that suicide did not have to be foreseeable for liability to arise. Citing judgments from courts in Canada and Australia, they held that if depression were compensable, then only “logic or policy or evidence” could exclude death by suicide as compensable. The court held that while the suicide may not have been foreseeable, depression had been -‐ and as suicide arose as a result of depression, it constituted the same type of injury and was therefore compensable. SWAYED BY POLICY ARGUMENTS Having stated that mental illness at work can take many forms – post-‐traumatic stress disorder, depression, reactive anxiety neurosis or even in extreme cases suicide – and having analysed the case law, including the Fletcher case, Connolly suggested that “liability for work related mental injury is dealt with in a somewhat piecemeal fashion by the courts at present”. Stating that while the overriding principles are those of negligence, she said, the courts place a distinction between nervous shock cases, fear of disease or worried well cases and stress related injury. In a challenging comment, she said that the courts appear to be particularly swayed by policy arguments and a fear that the floodgates will open if policy limitations are not rigorously applied. She argued that such fears are ill-‐founded and that courts should not adhere too closely to subjective issues of policy, with its unbalanced emphasis in particular on the economic implications of claims. The forum for addressing mental injury claims, Connolly argued, is “inappropriate” and she suggested “a less adversarial forum for dealing with such disputes ought to be introduced”. Lawsuit over deadly Lockheed shooting appears to be headed to a jury By HOLBROOK MOHR Details about racist confrontations at a Lockheed Martin Corp. plant could become public for the first time when a jury hears evidence in a lawsuit more than four years after one of the nation's deadliest workplace attacks. Doug Williams, who had worked at the Lockheed plant in Meridian for almost 20 years, abruptly walked out of a mandatory diversity training class on July 8, 2003. He returned with a shotgun and a rifle, killing five people and wounding eight before shooting himself. ________________________________________________________________________ EAP Institute © 2015

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

___________________________________________________________________________ A federal judge's ruling in September cleared the way for a jury to hear a lawsuit against Lockheed's employee assistance provider, Milwaukee-‐based NEAS Inc. It will be the first lawsuit related to the shooting to be heard by a jury, probably sometime next year unless a settlement is reached. The case is somewhat unusual in that it targets NEAS instead of the defence contractor. Lockheed faced multiple lawsuits over the shooting. At least one lawsuit has been settled. The terms were not disclosed. Other lawsuits were dismissed, according to company filings with the Securities and Exchange Commission. The lawsuit against NEAS, which was filed by Erica Willis, the daughter of one of Williams' victims, seeks damages and acknowledgment the crime was a preventable racist attack, attorney William F. Blair said. “I expect that details of the knowledge of what happened 18 months before the murders will come out for the first time," Blair said. "It is unbelievable how much everyone knew about Doug Williams that were never considered in determining whether he posed a safety risk to his co-‐workers." Lockheed, based in Bethesda, Md., is not a party in the lawsuit and therefore "it would be inappropriate to comment," said Sam Grizzle, a Lockheed spokesman. Philip Chard, NEAS' president and chief operating officer, did not immediately respond to a message left Monday. He has declined comment in the past because of the pending litigation. Some of Williams' black co-‐workers at the plant say they complained for months that he threatened them, used racial slurs and even spoke of a coming "race war." This is what the lawsuit claims. Williams was ordered to undergo a psychological evaluation more than a year before the attack because he allegedly made racist threats during an argument with a fellow worker. Lockheed, the lawsuit alleges, apparently decided Williams' employment would be contingent on completing counselling and referred him to NEAS. NEAS sent Williams to an affiliate in Meridian called Psychology Associates. However, NEAS failed to communicate with Psychology Associates the nature of Williams' problems, saying only he had "boundary/communication issues." Williams was cleared to return to work in January 2002 after just three counselling sessions. "NEAS was told everything they needed to know to determine that Doug Williams' death threats were real and it failed to even tell Psychology Associates the nature of the threats," Blair told The Associated Press. "We believe that the six workers would be alive today had NEAS performed its job." Both NEAS and Psychology Associates asked U.S. District Judge Tom S. Lee to dismiss the lawsuit. In September, Lee dismissed Psychology Associates as a defendant. "In the court's opinion, however, the evidence of record is adequate to create a question for the jury on the questions of whether NEAS should have been aware of Williams' threats and whether, in light of such information, it should have reasonably foreseen Williams' attack," Lee wrote in his order. Mark Colson, an attorney for Psychology Associates, said his "clients are obviously very pleased" without going into detail because the decision could be appealed. [END] ________________________________________________________________________ EAP Institute © 2015

Managing Workplace Behavioural Health Risks – Health and Safety Review Conference 14th May 2015

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REFERENCE & WEB ADDRESSES

(1) Earnshaw., J., & Cooper, C. (1996) Stress and Employer Liability. IPD. London (2) Employment Equality Act 1998/2011 (3) Health & Safety Review. October 2014 and November 2014 (4) Barry. (2014) Case Law Review on Mental Health (5) Health & Safety Authority (1990), Guidelines on Safety Statements www.hsa.ie (6) The Safety, Health and Welfare at Work Act 2005 (7) Employment Appeals Tribunal, http://www.eatribunal.ie (8) Irish Labour Court, http://www.labourcourt.ie/labour/labour.nsf/lookuppagelink/home (9) Quinlan, Maurice, 2010 Guidelines on Intoxicant Risk Assessment Available from EAP Institute at www.eapinstitute.com (10) Byrne, Raymond, (2008) Safety, Health and Welfare at Work Law in Ireland, 2nd Edition, Nifast. Dublin. www.nifast.ie (11) Employers’ guide to bipolar disorder and employment. Bipolar UK (12) Schizophrenia Ireland www.sirl.ie (13) Depression in the Workplace. Stephen Hughes MEP Initiative on Depression in the Workplace (14) Reach Out. Irish National Strategy for Action on Suicide Prevention European Commission Green Paper: (2005) Improving the mental health of the population: Towards a strategy on mental health for the European Union IMO Position Paper on Mental Health Services, Irish Medical Organisation, November 2010 McDaid (Ed). (2008). Mental Health in Workplace Settings. Consensus paper. Luxembourg: European Communities. ProMenPol Project (2009) A Manual for Promoting Mental Health and Wellbeing: The Workplace The European Network for Workplace Health Promotion (ENWH) (2011) A guide for employers. ________________________________________________________________________ EAP Institute © 2015