A landmark court decision has provided essential practical guidance to employers seeking clarity on what constitutes bullying under Irish law. In a split decision, the Court of Appeal in Ruffley v Board of Management of St Anne's School overturned the highest ever award of damages to an employee for workplace bullying on the grounds that the defendant's actions did not constitute workplace bullying.
Workplace bullying is defined under Irish law as "repeated inappropriate behaviour... which could reasonably be regarded as undermining the individual's right to dignity at work." As it can be difficult to determine when this threshold has been met in practice, the Court's detailed consideration of the definition of workplace bullying is an important development for employers. The conclusions of the Court and the key lessons for employers following the decision are outlined below.
BACKGROUND TO THE APPEAL
The High Court had awarded the plaintiff €255,276 for personal injuries caused by alleged bullying in the course of her employment as a special needs assistant (SNA) in the defendant's school. The allegations of bullying arose from the implementation of a flawed disciplinary process by her employer over the course of a year.
In 2009, the plaintiff became concerned and sought help when a child she was working with fell asleep in a room used for individual therapy (the Sensory Room). During this incident, the Principal discovered that the plaintiff had locked the Sensory Room door from the inside. Despite the plaintiff's claims that other SNAs had locked the Sensory Room door, a four week monitoring process was put in place to review the pupil's progress under the plaintiff's guidance.
Towards the end of the monitoring period, the class teacher noted that the plaintiff had ticked a box on the monitoring form which indicated that the pupil had completed a goal when in fact he had not done so. The plaintiff was not allowed to correct this entry, and the disciplinary process was reactivated. The board decided that the plaintiff should be given a final written warning, a sanction just below dismissal. After a short delay, the plaintiff was informed of the sanction and sought to appeal the result, but was ultimately unsuccessful. The plaintiff continued working until September 2010, when, after an exchange over alleged lateness for work, she went on sick leave due to work related stress. She subsequently sued her employer, claiming that its actions over the course of the disciplinary process had caused her psychiatric injuries, and her personal injury claim was successful before the High Court.
The school appealed the award on a number of grounds, including that it did not cause the mental health injuries suffered by the plaintiff and that its conduct did not constitute 'bullying'. The Court found that the trial judge was entitled to accept medical evidence that the mental health injuries of the plaintiff were caused by the actions of the school. The key question was, therefore, whether the school's conduct amounted to bullying.
WHAT IS BULLYING?
The Court confirmed the statutory definition of workplace bullying is "repeated inappropriate behaviour...which could reasonably be regarded as undermining the individual's right to dignity at work." Each judge then examined the key elements of this definition: the meanings of 'repeated' and 'inappropriate' behaviour and the concept of 'undermining the individual's right to dignity at work'.
A 'once-off' incident cannot amount to bullying – conduct must be 'repeated'. The Court in Ruffley was satisfied the conduct of the school did not amount to a once-off incident, and made the following key observations in coming to this conclusion:
i. Courts will take a holistic view of a complaint:
The school argued that the disciplinary process could not be considered 'repeated' behaviour because it was one continuous process. However, the Court focused on substance over semantics in rejecting the school's assertion, noting that there were several meetings and events over a year long period.
ii. Repetitive conduct should be proximate in time:
A split arose on the issue of the timing of incidents of alleged bullying, with Finlay Geoghegan J stating that the requirement for conduct to be 'repetitive' simply meant that a 'once off' incident could not amount to bullying. Irvine J went further, suggesting that a gap of several years between incidents might not amount to 'repetitive behaviour' in some circumstances. The timing of any alleged incidents of bullying will therefore be relevant in determining whether bullying has taken place.
iii. Repetitive conduct may not necessarily be equivalent in character:
Bullying can take many forms, from abusive emails to allegations of 'freezing out'. In practice, allegations of bullying are likely to consist of a number of incidents that might be quite different in character, making it difficult to determine whether an incident has been 'repeated'.
The Court was split on this point. Irvine J noted that 'different types of behaviour when directed at one person may constitute bullying', whilst Ryan P understood 'repeated' to mean that it is 'the same behaviour or class of behaviour that is offensive and amounts to bullying'.
Employers should therefore be aware that where an employee complains of different types of incidents, the fact that the incidents are of a different character may not prevent the conduct from being repetitive.
If the behaviour is not inappropriate, it cannot be considered bullying. A key argument of the school in this case was that the implementation of a disciplinary process could not be described as inappropriate. However, the Court did not accept this argument. The following remarks of the Court are important indicators of when behaviour may be defined as inappropriate:
i. A disciplinary process may be 'inappropriate' in certain circumstances:
Employers should be aware that "behaviour that can objectively be viewed as bullying enjoys no safe haven merely by reason of the fact that it may have taken place in the context of a disciplinary process." (Irvine J)
ii. The test is objective; motivation is irrelevant:
A majority of the Court agreed that determining whether behaviour is inappropriate cannot depend on the subjective perceptions of either the victim or the perpetrator.
Ryan P's suggestion that the motive of the school (protection of children with special needs) was relevant in determining whether bullying had occurred blurs this principle. However, in light of other recent cases, employers should proceed on the basis that even good intentions will not prevent a Court from objectively determining that bullying has occurred.
"Undermining the individual's right to dignity at work"
A key factor in the decision to overturn the award of the High Court was the Court's conclusion that the plaintiff had failed to demonstrate that the behaviour of the school undermined her right to dignity at work. The following observations of the Court to this provide guidance in interpreting this element of the definition of bullying.
i. Employees must demonstrate that their dignity has been undermined:
Ryan P noted that, whilst the conduct of the school may have undermined the plaintiff's work, or even her right to work, it could not properly be regarded as undermining her dignity. The proper test for workplace bullying therefore centres on the dignity of the employee, rather than the performance of an employee's duties.
ii. Disciplining for conduct which is 'common practice' does not necessarily undermine an employee's dignity :
The plaintiff argued that disciplining her alone for locking the door of a room amounted to bullying, as this was in fact common practice among special needs assistants at the school. The majority of the Court disagreed with this argument, noting that the fact that others engaged in the same
practice and had not been caught did not mean that the investigation of the school into a single incident where the plaintiff had been discovered was inappropriate or vindictive, especially in the context of child protection concerns.
Finlay Geoghegan J, in her dissenting judgment, found that the right to 'dignity at work' included the right not to be singled out for disciplinary treatment in relation to a practice.
Ultimately, the comments of the Court suggest that a prudent employer, when it becomes aware of a common practice, should be slow to initiate a disciplinary process against only one individual before conducting a wider investigation. In the face of competing duties (in this case, to vulnerable children) this is not always possible. However, an employer should be cognisant of the requirement to ultimately justify its actions.
LEARNING FROM RUFFLEY: KEY TAKEAWAYS FOR EMPLOYERS
- The Courts will engage in a detailed examination of the factual background of any bullying complaints, regardless of the context in which the complaints occur – it is possible for behaviours occurring in the context of a disciplinary process to amount to bullying.
- Finlay Geoghegan J noted that the plaintiff's claim was based on an allegation of 'corporate bullying', defined as allegation "that the management of the enterprise is implicated in the bullying activity." The Ruffley judgement is the first instance in which the Court of Appeal has considered this type of claim, and in this regard the suggestion from Finlay Geoghegan J that corporate bullying and other cases of bullying activity may be treated differently by the courts in terms of the cause of action and necessary proofs on the part of a plaintiff is instructive for employers dealing with these types of cases.
- Whilst the Ruffley decision may discourage employees from pursuing personal injuries actions, employers still need to take the time to ensure that their procedures are robust and fair to avoid exposing themselves to large monetary awards.
- The Court was divided in determining whether the conduct of the school was 'inappropriate' and on the question of what 'could reasonably be regarded as undermining the plaintiff's right to dignity at work'. It is therefore important that employers understand the meaning of these elements of the definition of workplace bullying.
- Employers should, when making disciplinary decisions, ensure they are in a position to justify their actions based on objective criteria. An example of a relevant consideration in this case was the competing obligations faced by the school to employees and vulnerable service users.
A complete review of this case can be found in the Arthur Cox Employment Law Yearbook 2015 (Chapter 6), with further commentary on the original High Court decision available in the Arthur Cox Employment Law Yearbook 2014.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.