On 8 December 2015, the Court of Appeal, by a two to one majority, overturned the High Court judgement of Mr Justice O’Neill delivered on 9 May 2014 in Ruffley v Board of Management of St. Anne’s School [2014 IEHC 235]. This was a case involving a claim of bullying and harassment which the plaintiff claimed occurred between 14 September 2009 and 27 September 2010 in the course of her work as a Special Needs Assistant (SNA) in the defendant national school for children with physical or intellectual disabilities.

In the High Court judgment, Mr Justice O’Neill held that the evidence supported a finding that the plaintiff suffered, continued to suffer, and will suffer for some time into the future, an identifiable psychiatric injury as a result of her treatment at work. The Court made an award of €255,000 to the plaintiff. This consisted of €75,000 in respect of compensation for her psychiatric injury to the date of the judgment, €40,000 in compensation for her psychiatric injury for the future (bringing the total for general damages to €115,000). In addition in respect of losses of earnings, this was agreed at €93,276.39 up to 6 March 2014 and, the sum of €47,000 was awarded in respect of future losses of earnings. A stay was sought pending an appeal of the matter and on 4 July 2014 the Supreme Court granted a stay on condition that the appeal by expedited and the defendant pay the plaintiff €100,000. The defendant appealed the findings on liability and damages.

Brief Outline of High Court Case

This case arose from an incident in relation to the Sensory Room in the school, which was used to develop sensory perception of pupils, where individual programs for a pupil were carried out by SNAs. It was normal for the door of the Sensory Room to be closed to avoid disruptions or distractions for the pupil.

On 14 September 2009 the plaintiff was in the Sensory Room with a young child who fell asleep. The plaintiff called the class teacher for instructions and was told to allow the child to continue sleeping for another 20 minutes before bringing him back to the class. The Principal found the door of the Sensory Room was locked and on her third attempt to gain entry to the room, it was opened by the plaintiff. The following day the plaintiff was told that this incident in relation to the locked door was being handled through the disciplinary procedure. The plaintiff’s position which she explained at a meeting was that it was common practice to lock the Sensory Room while conducting a pupil’s program, it was also submitted that the SNAs had neither been told to lock the door nor not to lock the door. It appeared that this was the end of the matter and that no disciplinary process would following, however a letter dated 18 September noted that if a required improvement was not made then the plaintiff may be subject to disciplinary procedures.

There was a further incident in which, during a 4 week review of a particular pupil’s progress, the plaintiff apparently ticked a box incorrectly on a form about the pupil’s performance.  The plaintiff’s request to change this error was not accepted by the teacher in question and it was marked as a miscommunication.

Following this incident the Principal concluded that there has been no improvement in the plaintiff’s performance and that there had been what the Principal perceived as a falsification of the review form and so a disciplinary process was revived. The end result of this was that, following a meeting of the Board of Management, a Part 4 Final Warning was issued to the plaintiff, which would stay on her record for 18 months. There was a delay in notifying the plaintiff of the sanction and there was also confusion as to how long it would remain on her record, but it was confirmed to her in January 2010 that it would remain for 18 months.

The plaintiff sought to appeal this sanction, through her Union representative, on the grounds that (1) the process was unfair, (2) that the school had not expressly prohibited locking the Sensory Room door and (3) that a final written warning was too severe a sanction. There was no investigation into the appeal and it was rejected by the Board.

The plaintiff’s solicitors also engaged in correspondence with the Board of the defendant in respect of the process and what they alleged was bullying and harassment. Following an incident in respect of alleged lateness by the plaintiff in September 2010, the plaintiff went on certified sick leave due to work related stress. Following this the plaintiff claimed damages from the defendant for bullying and harassment occurring between the date of the incident on 14 September 2009 and when she departed on sick leave on 27 September 2010. At the trial of the matter she presented evidence that she sustained a psychiatric injury which prevented her from working.

In the High Court Mr Justice O’Neill held in the plaintiff’s favour and made a total award of damages of €255,276. He was particularly critical of the procedure followed by the defendant in respect of the alleged incidents and the ‘unfair and inappropriate’ treatments of the plaintiff throughout the process. The trial judge was satisfied that the conduct of the defendant came within the meaning of workplace bullying as set out in paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002) :

‘Workplace 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. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.’

The trial judge held that (1) the behaviour of the school was inappropriate, (2) it was not an isolated incident but was persistent for more than one year and (3) that the persistent, inappropriate behaviour wholly undermined that plaintiff’s dignity at work.

The judge held that the plaintiff suffered an anxiety and depressive disorder resulting from her treatment between September 2009 and September 2010 and made the award of €255,276 in damages plus costs to the plaintiff.

Appeal of High Court Decision

The defendant appealed on the following grounds

(1)           That the conduct of the defendant did not amount to bullying within the definition as accepted by the Supreme Court and the High Court in caselaw (“Ground 1 of Appeal”). Rather this was a flawed disciplinary process, and while it was defective, it was not bullying. They submitted that a failure by an employer to adopt fair or appropriate disciplinary procedures does not constitute bullying and harassment within the definition approved in Quigley v Complex Tooling & Moulding Limited [2008] IESC 44 (where it was held by the Supreme Court that for conduct to amount to bullying it must be ‘repeated, inappropriate and undermining of the dignity of the employee’. In pursuing the disciplinary process the defendant was concerned with the protection of the child in question. In addition they submitted that all of the complaints of the plaintiff flow from one incident, i.e. the locking of the child in the Sensory Room, and that there is no evidence of ‘repeated’ behaviour. As set out in more detail below, both the President of the Court of Appeal and Miss Justice Irvine upheld this ground of appeal.

(2)           There was an absence of evidence of causation to connect any offensive conduct by the defendant to the mental health issues the plaintiff suffered (“Ground 2 of Appeal”). It was submitted that the plaintiff had failed to provide medical evidence to prove that she suffered a discernible psychiatric injury beyond what might be described as workplace or occupational stress.

In respect of Ground 2 of the Appeal, the President of the Court of Appeal held that this cannot       succeed as there was clear medical evidence from the plaintiff’s GP and from a consultant psychiatrist which was accepted by the trial judge and which he was entitled to accept. The President stated that it was not the role of the Court of Appeal to retry the cases and rejected this ground of appeal. Miss Justice Irvine agreed with this.

(3)           In respect of the award of €47,000 for future loss of earnings, this was not claimed by the plaintiff (“Ground 3 of Appeal”).

In respect of Ground 3 of Appeal, the President held that, irrespective of the outcome of Ground 1 of the Appeal, the award of €47,000 in respect of future losses cannot stand as there is no evidential basis for it as it was not part of the plaintiff’s claim. Miss Justice Irvine agreed with this.

The central aspect of the Court of Appeal’s determination was whether the evidence established a case of bullying by the defendants in the course of disciplinary proceedings and if so whether there was causal link between that bullying and the psychological injuries allegedly suffered by the plaintiff meriting the damages awarded by the High Court.

In upholding Ground 1 of Appeal, while critical of the process undertaken by the defendant, and the absence of due process and fair procedures, he held that ‘overall, it seems to be that the required elements of a bullying case have not been established here’. He noted that while the process was flawed, it arose from a serious concern and the evidence did not support a finding of bullying. Amongst the reasons why he felt it was not a case of bullying were:

• The motive was child protections and that it was legitimate in the interest of child protection to ensure that the Sensory Room door was not locked and the disciplinary process was ‘honestly pursued in the interest of the children’.
• While the defence that other SNAs locked the door was mitigation it was not a full answer to the complaint
• There was nothing in the disciplinary process which constituted ‘a sustained campaign maliciously pursued in order to intimidate or humiliate or denigrate the plaintiff’
• This was a ‘botched’ disciplinary process at worst, but it was not a case of repeated offensive behaviour intended to destroy the plaintiff’s dignity was work.
• The President was of the view that the definition of bullying would have to be ‘stretched beyond breaking point’ to fit this case.
• If the judgement of Mr Justice O’ Neill were permitted to stand it would widen the tort of bullying to cover situations it was never intended to do.
• In relation to the definition of bullying, he noted that it ‘is carefully drafted so as to convey the particular nature of the activity that is the subject of the wrong and which is required to be addressed by an employer. It is important that the courts should respect the precision of the definition and its limitations and confine it to the proper circumstances in which it apples. This is not such a case’.

Miss Justice Irvine also allowed Ground 1 of the Appeal. In coming to her decision, she noted that the evidence did not support the type of ‘calibrated inappropriateness which distinguishes bullying from other types of work place wrongs’. While critical of the shortcomings in the process, she noted that while the defendant carried out the process in a ‘hopelessly flawed manner’ this does not bring the conduct within the definition of bullying as set out in Quigley. Interestingly Miss Justice Irvine also notes that the shortcomings in the procedure would have given the plaintiff ‘substantial grounds’ to institute plenary proceedings seeking a declaration of invalidity of the decision of the board and the appeal decision however she chose not to take this option and instead instituted an action for bullying in the workplace. Miss Justice Irvine suggested that Mr Justice O’Neill in the High Court ‘tried to shoehorn what should have been a declaratory action brought to challenge the validity of the decision and sanction imposed by the defendant into a claim for damages for a civil wrong that was unsustainable on the evidence.

Miss Justice Finlay Geoghegan dissented and dismissed Ground 1 of Appeal finding that there was repeated inappropriate conduct which, objectively could be reasonably be regarded as undermining the plaintiff’s right to dignity ay work. In coming to this decision she noted a number of incidents of inappropriate conduct, including that the Principal, prior to presenting the matter to the Board, failed to conduct any inquiry among the other SNAs in respect of whether they locked the Sensory Room door. She also pointed to the pursuit of a severe disciplinary sanction given to the plaintiff, the lack of investigation, the meeting between the Principal and the plaintiff on 27 January 2010 and the rejection of the plaintiffs appeal without any meaningful consideration. She held that the repeated inappropriate conduct ‘is such that it could reasonably be regarded as undermining the plaintiff’s right to dignity at work’.

As noted above, the plaintiff was paid €100,000 of the award pending determination of the appeal but the President of the Court of Appeal stated that repayment of that money was not a matter for the Appeal Court. The question of costs issues were adjourned to January.

 Comment

While the decision in Ruffley may be a welcome one for employers and seeks to limit a wide application of bullying to scenarios not envisioned by the definition in the Code of Practice, the case once again highlights the importance of following fair procedures. Both the High Court and the Court of Appeal were unanimously critical of the seriously flawed process undertaken by the defendant in this case. It is possible that if the principles of natural justice and fair procedures had been adhered to by the defendant, and that the plaintiff was afforded due process, the question of her work related stress may not have arisen and this lengthy and costly litigation could have been avoided. As always, each case must be considered on its individual facts and employers should take a prudent and measured approach to all potential disciplinary matters.

For further information on any issue raised in this article please contact Deirdre Crowley at dcrowley@crowleysolicitors.ie.

This article is a general summary of the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis.