Antoinette Vahey from RDJ looks at the recent High Court judgment Una Ruffley v Board of Management of St. Anne's School and considers the requirements on an employer to implement a fair, reasonable and proportionate disciplinary process.

The recent Judgment of the High Court in the case of Una Ruffley v Board of Management of St. Anne’s School has brought into sharp focus once again the requirements on an employer to implement a fair, reasonable and proportionate disciplinary process.

The Plaintiff in this case sued the Board of Management of St Anne’s School for damages for bullying and harassment which she claims occurred between 14th September 2009 and 27th September 2010 in the course of her work as a Special Needs Assistant (SNA).

Workplace bullying is defined in the Code of Practice detailing Procedures for Addressing Bullying in the Workplace - S.I. 17/2002 (and reiterated in the Code of Practice for Employers and Employees on the prevention and resolution of workplace bullying 2007) as “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.”

In this case, O’Neill J determined that the manner in which Ms Ruffley was treated by the Board of Management and the school Principal was severe, unmerited and amounted to repeated “inappropriate behaviour which wholly undermined her dignity at work”. O’Neill J awarded the extraordinary amount of €255,276 in compensation and loss of earnings to the Plaintiff.

A disciplinary process commenced against Ms Ruffley on foot of an incident which arose on 14th September 2009 and culminated in a final written warning being communicated to her on 18th January 2010. The incident at the centre of this case involved the SNA locking the door of the “sensory room” in which she was undertaking a session with a child with special needs.

Although O’Neill J accepted that it was reasonable for the Defendants to insist that the door was not locked for child protection and health and safety reasons, he was extremely critical of the process undertaken by the school. His criticisms in this regard can be broadly summarised as follows:

* It was never expressly notified to the Plaintiff or any of her SNA colleagues that it was unacceptable to lock the door to the sensory room during a session, and in particular that this would be considered a disciplinary offence. Specifically it was not set out in the school’s safety statement;

* No enquiry was made of other SNA staff as to whether this practice was commonplace amongst SNA staff and not unique to the Plaintiff;

* There were conflicting reports on the outcome of an initial meeting on 15th September 2009 and subsequent meeting on 18th December 2009. The Judge accepted that content of a letter to the plaintiff dated 18th September 2009 was substantially different to the tone of notes kept by the principal. The Judge further accepted that the plaintiff did not receive this letter.

* A review carried out with the SNA some four weeks later was unduly harsh in that it noted a genuine error as being a “miscommunication” notwithstanding that the SNA had admitted that it was typographical error and sought to rectify it at the review;

* The decision by the Principal to view this miscommunication as a “falsification” of records, thus leading to another disciplinary offence, was unreasonable, groundless and carried an element of bad faith. He also felt that the claim that the SNA had failed to improve within the four week period was “trumped up”.

* Additionally, he formed the view that the Principal unfairly used this new charge of falsification in order to escalate the matter to the Board of Management of the school;

* He noted that, although the SNA was informed that the issue would be raised at a Board meeting on 23rd November 2009, she was not told of the material that would be put before the Board; what proposals the Board were being asked to consider nor the possible outcome as far as she was concerned. Crucially, she was not informed that there might be any adverse disciplinary outcome as far as she was concerned nor was she told of the Principal’s intention to seek a disciplinary sanction against her;

* Information presented to the Board consisted solely of what they were told by the school Principal which the Judge determined on the basis of her evidence, was “untrue, highly biased, coloured and grossly and unfairly damnified the plaintiff”. Additionally, O’Neill J formed the view that “they were grossly misled as to the true circumstances prevailing”.

* Significantly, O’Neill J was of the view that the SNA was given no opportunity to represent herself at this meeting and as such it was a “departure for all the norms of natural justice”;

* The Board decided on a sanction immediately below dismissal (being a final written warning), which was viewed by O’Neill J as being unfair;

* The decision was not formally communicated to the Plaintiff until 18th January 2010, which would last on her record for 18 months, although she was given informal notification prior to the Christmas break that it would be for six months;

* Furthermore, O’Neill J accepted that SNA was belittled, denigrated and humiliated in a meeting on 27th January 2010 ostensibly held to close out the matter;

* The Plaintiff sought to appeal this decision and O’Neill J formed the view that the appeal process took no account of any evidence of the SNA that this was a commonplace occurrence and the Board did not take any meaningful consideration of the case being made by the Plaintiff over the course of their meetings held between September and November 2010;

* O’Neill J also held that the fact the appeal was also undertaken by the Board offended against the long established principle of “nemo iudex in causa suma” (no one should be a judge in his own cause).

In conclusion, O’Neill J. determined that the manner in which the disciplinary process was handled by the Principal of the school was grossly unfair to the Plaintiff and “utterly denied her the benefit to her constitutional right to natural justice and fair procedures”.

Ultimately the Judge was satisfied that the sequence of events throughout the process led to “repeated inappropriate” behaviour within the definition of workplace bullying and that the SNA had suffered a definite and identifiable psychiatric injury as a result.

Conclusion

The lessons to be learned here for employers is that in seeking to bring an employee under its disciplinary process, it should at all times have due regard for an individual’s right to natural justice and fair process and to adhere to the Labour Relations Commission Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000).

It is of utmost importance that an employer has in place a specific disciplinary process which sets out the parameters that an employee can expect in relation to any disciplinary process undertaken by the employer, and any potential sanctions there under.

Furthermore, any investigation undertaken by an employer should be clearly defined and reach a definite outcome. Having regard to the disciplinary process, an employee should be aware in advance of any hearing taking place of the potential outcome for them. Furthermore, it is imperative that all stages of the process are carried out by different individuals so that there can be no question that there is any level of bias at each stage of the process.