This is an important case for schools which were concerned by the original High Court decision for two reasons;
1. It appeared to represent an extension of the conventional definition of bullying by virtue of the High Court’s finding that this employer’s disciplinary process could be described as bullying and;
2. The significant monetary award to the SNA.
B. The High Court Decision of 2014
The High Court made the award in 2014 based on what Mr Justice O’Neill then described as “severe” and “unmerited” treatment in what, he found, to be persistent inappropriate behaviour towards the special needs assistant by school management. MHC advised the Board of Management to appeal the decision, which they duly did.
The Court of Appeal has now disagreed with the High Court judgment, finding that the definition of bullying as interpreted by Mr Justice O’Neill in the High Court had “to be stretched beyond breaking point to fit this case”.
C. A Botched Disciplinary Process – Not a Case of Bullying
The Court of Appeal has now found that the employee was unfairly treated by virtue of the “hopelessly flawed” disciplinary proceedings, but regardless of the flaws, the court concluded that the conduct of school management in that regard did not come anywhere close to the definition of bullying as set out in Quigley v Complex Tooling and Moulding [2009] 1IR 349 where the Supreme Court accepted the definition of bullying set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration Order) 2002 (SI No 17 of 2002) 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".
An isolated incident of the behaviour described in the definition may be an affront to dignity at work but as a once-off incident, it is not considered to be bullying. The court also reiterated the importance of the objective test in determining whether or not particular conduct can be classified as inappropriate.
D. Conclusion
This decision is important for school management at primary and second level. It provides an assurance to Principals that the mere engagement in agreed disciplinary procedures will not, of itself, support a claim for damages for bullying in a civil case. Just because you are under investigation, does not mean you are being bullied.
It also re-affirms the validity of the definition of bullying (as set out above) which is commonly found in most school anti-bullying procedures.
Finally, it confirms the definition of bullying contained in the Department of Education and Skills Disciplinary Procedures (Circular 0072/2011) for special needs assistants.
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Legal-Island would like to thank Liam Riordan and Edel Kennedy of the Education Unit, Employment Law & Benefits Team, Mason Hayes & Curran for the main content of this email. Contact:
Liam Riordan lriordan@mhc.ie
Edel Kennedy ekennedy@mhc.ie
MHC Education Expertise http://www.mhc.ie/expertise/education
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