JUDGMENT of the President delivered on 8th December 2015
Summary of Factual Background
1. In the judgment of the High Court in this case, delivered on 9th May 2014, O’Neill J. awarded damages to the plaintiff, Ms. Una Ruffley, in the total sum of €255,276 and costs on foot of her claim for bullying and harassment in the course of her employment as a Special Needs Assistant in the defendant’s National School. The defendant appeals against the findings on liability and damages.
2. The school is a facility for children with physical or intellectual disabilities, and although it is a National School, it admits pupils aged between 4 and 18 years. It was founded by and is under the patronage of KARE, an organisation of parents which provides a wide range of services for children with disabilities that employs some 350 people. The Chief Executive Officer of KARE, Mr. Christy Lynch, is also the Chairman of the Board of Management of St. Anne’s School.
3. The plaintiff received a severe warning in a disciplinary process in the school because of an incident that occurred on 14th September 2009. In the course of her work on that date, she was with a pupil in a room used for individual therapy known as the Sensory Room when she became concerned and sought help because he unexpectedly fell asleep. The Principal was notified and came to the door but failed on three attempts to get into the room. The plaintiff, having returned to the room after calling for assistance, had locked the door from the inside. This became a matter of criticism first by the Principal of the school and subsequently by the Board of Management.
4. In response to the complaint, the plaintiff said that other Special Needs Assistants locked the Sensory Room door and, besides, the school authorities had not given any instruction that the door was not to be locked. There were also practical reasons for doing so: some children, including the particular pupil, had a tendency to run out of the room during therapy and sometimes other children interrupted the engagement by opening the door from outside.
5. The episode might have been forgotten had not another question arisen about the plaintiff’s conduct. The Principal had put in place a means of monitoring the particular pupil’s progress using the equipment in the Sensory Room over a 4-week period under the plaintiff’s guidance. Towards the end of the period, the class teacher to whom the plaintiff was assigned noted an entry that was wrong about the boy’s performance. The plaintiff had ticked a box on the monitoring form devised by the teacher that recorded his having achieved a goal that he had not done. The teacher was not satisfied to let the plaintiff correct the entry. The Principal thought this matter was serious and that it warranted re-activation of the original disciplinary issue. Thus, it came to the Chairman of the Board.
6. The Chairman was particularly concerned about the door locking which he considered very serious. He thought that it should have been obvious to special needs assistants because of their training that child safety demanded that such doors should be kept unlocked. He thought the matter should be referred to the Board, which happened on 23rd November 2009. That body decided that the plaintiff should be given a sanction just below dismissal in the form of a severe grade warning. There was delay in notifying the plaintiff, which was done on 21st December 2009 and confusion and mistaken information about how long it would remain on her record. At a meeting on 18th January 2010, the Principal told the plaintiff that the warning would stay for 18 months. The plaintiff said that she had been in contact with her Union and wanted to appeal the decision. On 20th January 2010, the plaintiff was given a letter signed by the Chairman confirming the sanction, in which there was reference to an investigation of the matter.
7. On 27th January 2010, there was a meeting between the Principal and the plaintiff that was intended to get closure on the matter but it gave rise to a complete conflict of evidence, with the plaintiff alleging that she was subjected to severe denigration by her superior that reduced her to tears. The Principal denied these allegations. The trial judge simply records in his judgment that he accepted the plaintiff’s evidence.
8. On 29th of January 2010, the plaintiff’s Union representative wrote to the Chairman appealing against the sanction imposed on the plaintiff on the grounds, first, that the process was unfair; secondly, that the school had not expressly prohibited locking the Sensory Room door and thirdly, that a final written warning was too severe a sanction. The writer made it clear that he was not suggesting that locking the Sensory Room was “acceptable, but rather, that the practice was known and had not been objected to previously”. There was no investigation and the response was a brief rejection.
9. The plaintiff’s solicitors wrote and the Board repudiated any allegation of wrongdoing and further correspondence debated the issues to and fro.
10. The plaintiff continued to work until September 2010, when the plaintiff experienced an otherwise minor exchange over alleged lateness for work as the last straw and went on certified sick leave due to work-related stress. She has remained out of work since then. Evidence on her behalf was that she sustained psychiatric injuries that prevented her working. Her employment has not terminated by resignation or dismissal.
11. The plaintiff claimed damages from the defendant, as her employers, for bullying and harassment occurring between the date of the Sensory Room incident on 14th September 2009, and the date when she ceased work, 27th September 2010.
12. The judge accepted the definition of Workplace Bullying in para. 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.”
13. In his judgment, the trial judge held as follows: -
“(a) up until March 2010, the Board might not have been aware of the merits of the plaintiff’s case about the sensory room door, notwithstanding that the principal was well aware of it;
(b) from March 2010 onwards, the Board knew what the plaintiff’s case was;
(c) from April 2010, the Board knew that other special needs assistants locked the door from time to time.
The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all consider the merits of the plaintiff’s case at this late stage when they were aware of the impact that there are now erroneous and unjust decision was having on the plaintiff was, in my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.”
He said also that he was “quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely ‘inappropriate’ within the meaning of the definition of bullying in the workplace
(1) that the behaviour of the school was inappropriate
(2) it was not an isolated incident but was persistent for more than a year
(3) the persistent, inappropriate behaviour “wholly undermined the plaintiff’s dignity at work.”
14. The judge held that the plaintiff suffered an anxiety and depressive disorder resulting from her reaction to what happened from September 2009 to September 2010 - that resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and inability to cope with everyday life. Those conditions, and the fear that she would not get a good reference, inhibited the plaintiff from seeking employment elsewhere so she had not worked since 27th September 2010.
The Appeal
15. The appeal to this Court is brought on three grounds: -
1. The conduct of the school and its officers that the plaintiff complained about in this case, and which the trial judge found to have been proved, did not amount to bullying within the definition as accepted by the Supreme Court and by the High Court in previous judgments and as was accepted as the law in this case. What happened here was that there was a disciplinary process that was flawed. The defendants do not deny that the process was wholly defective but submit that that did not make it bullying.
2. There was an absence of evidence of causation in the case to connect any offensive conduct on the part of the school or its officers with the mental health issues that the plaintiff alleged had resulted from the way the school treated her.
3. This ground concerns the award of € 47,000 for loss of earnings into the future. The defendant/appellant protests that such a heading of damages was not actually claimed. It was not pleaded and neither was it provided in particulars under S.I. 391. Evidence was not given in the case as to how long it was going to take the plaintiff to get back to work.
The Appellant’s Submissions
16. The Board of Management submitted that the High Court judge erred in law and in fact in determining that the plaintiff was subject to bullying and harassment, having regard to the legal definition of bullying and harassment as set out in para. (5) of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures For Addressing Bullying in the Workplace) (Declaration) Order.
17. The decision to issue a final written warning to the plaintiff in response to her action locking herself in a room alone with a particularly vulnerable child was a decision taken by the Board of Management and not by the Principal. The investigation in relation to the plaintiff locking herself in the Sensory Room alone with the child was appropriate and a matter which the plaintiff herself accepted should be dealt with by the school Principal. The decision to investigate this issue was not motivated by vindictiveness or an attempt to bully but rather a desire to deal appropriately with a child welfare issue.
18. The actions of the plaintiff in locking herself in a room alone with the child showed sufficient lack of professional judgement that the defendant deemed that a Stage IV warning, as per the school disciplinary procedure was an appropriate, proportionate and necessary response. It was submitted that regard should be had to the fact that certain members of the Board of Management had called for the dismissal of the plaintiff and the evidence was that Ms. Dempsey was not amongst those calling for dismissal of the plaintiff.
19. It was submitted that a failure by an employer to adopt fair or appropriate disciplinary procedures in respect of an employee does not constitute “bullying and harassment” within the definition of same approved in Quigley v. Complex Tooling & Moulding Ltd. [2008] IESC 44, and Catherine Glynn v. Minister for Justice Equality and Law Reform, Ireland and The Attorney General [2014] IEHC 133.
20. There had been no evidence that the defendant, its servants or agents, had been motivated “to humiliate and belittle the victim”. The defendant, its servants or agents, at all material times had been motivated by child welfare/protection issues.
21. It was submitted that in light of the child safety concerns, the action taken by the defendant was justified and did not constitute bullying. Furthermore, it is submitted that all complaints made by the plaintiff flow from the one incident i.e. the locking of the child and the plaintiff in the Sensory Room, and accordingly, there is no evidence of “repeated” behaviour.
22. The second ground advanced by the appellant is that the learned High Court judge failed to have any or any proper regard to the medical evidence adduced on behalf of the plaintiff which showed no causal connection between the allegations of bullying and harassment and the alleged personal injury sustained by the plaintiff.
23. In Quigley, the Supreme Court determined that the plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employers breach of duty where the personal injury is not of a direct physical kind it must amount to an identifiable psychiatric injury.
24. Accordingly, the plaintiff assumes the onus of proof of establishing that such alleged bullying and harassment caused a discernible, identifiable psychiatric injury.
25. It was submitted that the plaintiff has failed to lead medical evidence to prove that she suffered a discernible psychiatric injury beyond what might be described as workplace or occupational stress. It was the plaintiff’s evidence that her first attendance with her General Practitioner in relation to her alleged work-related injury was on 19th August 2010, which was nearly a year after the first event giving rise to the proceedings. It is noted that this visit was towards the end of the 2010 summer holidays, a time when the plaintiff would have been absent from the work environment for a period of approximately six weeks. Furthermore, the plaintiff’s General Practitioner, Dr. McDonnell, accepted that the plaintiff did not attend with symptoms of depression on that date.
26. The third ground is that the learned High Court judge erred in law in assessing general damages in the sum of €115,000 and in assessing future loss of earnings in the sum of €47,000 and allowing the plaintiff loss of earnings to date. The plaintiff did not claim future loss of earnings. The award of damages was excessive, and in particular, the award of future loss of earnings was not appropriate in circumstances where this aspect of loss had not been pursued by the plaintiff at trial.
The Respondent’s Submissions
27. The plaintiff submitted that the actions of the appellant constituted workplace bullying. The plaintiff submitted that O’Neill J. faithfully followed the dicta of the Supreme Court in the case of Quigley v. Complex Tooling & Moulding Ltd. [2009] I.R. 349. In relation to the acts of bullying being repeated, and inappropriate, the judgment is replete with references to incidents of bullying. It is not open to the defendant to suggest that the decision to issue the plaintiff with a final warning was not further bullying of by Ms. Dempsey, given that Ms. Dempsey had sought the support to issue a warning to the respondent.
28. The plaintiff contended that in the light of clear medical evidence adduced on behalf of Ms. Ruffley, a causal connection between the allegations of bullying and harassment and the alleged personal injuries sustained had been shown. Evidence from Dr. Alan Byrne (Consultant Psychiatrist) who diagnosed the plaintiff as having suffered a clinical depression, and Dr. Michael McDonnell (the plaintiff’s General Practitioner), who stated “I thought she was suffering from acute stress reaction, acute anxiety symptoms, she mentioned, she alleged that she was getting bullying and that her work situation was intolerable” and opined that the presenting symptoms which the plaintiff came to him with were consistent with those complaints. He went on to state that the plaintiff continued to suffer from severe anxiety symptoms and depression and that it had a fairly severe effect on the plaintiff.
39. In relation to general damages, the plaintiff’s life and career have been blighted by the bullying which is the subject of these proceedings. The medical evidence adduced on behalf of the plaintiff showed the seriousness of her complaints.
30. In relation to the future loss of earnings, it was, or should have been, obvious to the defendant that the plaintiff had an ongoing claim. The defendant is the employer of the plaintiff. After considerable difficulties, the plaintiff’s loss of earnings was agreed in the sum of €93,276.39. However, that loss of earnings was specifically only up to 6th March 2014. It was quite clear to all parties that the plaintiff (who had complained about the ongoing financial strain of being unemployed), had not worked since 27th October 2010, and that her loss of earnings was continuing. No attempt was made at any stage of the proceedings to suggest that the plaintiff (who still remains an employee of the defendant) ought to have returned to work at an earlier stage with the defendant, or could have obtained work elsewhere. The agreement of the defendant in relation to the plaintiff’s loss of earnings was subject to the defendant alleging that certain social welfare payments were to be deducted therefrom, but the defendant adduced no evidence to show any such deductible amounts.
The Law
31. S.I. No. 17/2002 contains the definition of Workplace Bullying which is set out above.
32. In Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 I.R. at 349, the Supreme Court held that for conduct to amount to bullying it had to be repeated, inappropriate and undermining of the dignity of the employee at work. Furthermore, in his judgment, Fennelly J. said:
“The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer's breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury”.
33. In Berber v Dunnes Stores Ltd. [2009] IESC 10, the Supreme Court adopted the view expressed in Hatton and Sutherland as follows:
“It is essential therefore, once the risk of harm from stress in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be temptation having concluded that some harm is foreseeable and that harm of that kind has taken place to go on to conclude that the employer is in breach of his duty of care in failing to prevent that harm (and that the breach of duty caused the harm) but in every case it is necessary to consider what the employer not only could but should have done”.
34. In Maher v Gibol Global Services Ltd. [2005] IEHC 130, the High Court considered the duty of care of an employer in relation to an employee who alleges that he suffered physical and mental health during the course of his employment. Clarke J. identified three questions which should be addressed:
“Has the employee suffered an injury to his or her health as opposed as to what may be described as ordinary occupational stress, if so is that injury attributable to the workplace and if so was the harm suffered by the particular employee concerned reasonably foreseeable in all the circumstances”.
35. In Glynn v The Minister for Justice, Equality and Law Reform and The Attorney General [2014] IEHC 133, the facts are stated as follows. The plaintiff had been employed as a civil servant since 1979, performing clerical and accounting duties for Gort Garda Station in County Galway. She told the Court she felt stressed owing to uncomfortable working conditions, bullying and harassment. She complained of an unfavourable working environment, indicated she was not awarded equal pay and states she had several problems working alongside Garda Callaghy. She visited her GP on several occasions and had various consultations with specialist medical advisers as she was ‘down, irritable and not coping’. She had a meeting with Superintendent Mockler in 1996 to discuss her workplace issues. He later telephoned the plaintiff at her home address, which the plaintiff alleged were harassing in nature. However, Superintendent Mockler believed the phone calls were part of the normal process in ensuring staff were helped and supported when experiencing problems in the workplace.. The plaintiff contacted Department of Justice to discuss her ongoing issues yet failed to attend the agreed meeting place on one particular occasion.
36. The Court held: “For an allegation of bullying to be actionable, the first question the Court must answer is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress. The legal definition of bullying was set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002. The relevant legal principles to be applied in this case were to be found in Hatton v. Sutherland [2002] 2 All ER 1. As there was ongoing construction work taking place at Gort Garda Station, compelling the plaintiff to carry out her duties in confined conditions, the judge noted that strained working relationships were not difficult to predict. The judge placed heavy reliance on the plaintiff’s failure to disclose her prior history of depression, stressing that such failure or omission was significant in terms of credibility. The judge questioned her failure to attend the arranged meeting with the Department of Justice to which no satisfactory explanation was given. In contrast, the judge found Superintendent Mockler a credible and reliable witness and rejected the allegations of harassment or bullying made against him. The judge commented that the allegations made by the plaintiff are synonymous with that of a one-off isolated incident rather than that of the repetitive conduct necessary to constitute bullying/harassment in the workplace. The judge gave weight to the fact that not one other employee of Gort Garda Station gave evidence to corroborate a culture of harassment or bullying in their place of work. The plaintiff failed to demonstrate that her stress was attributable to the matters complained of in this case”.
37. The approach to be taken by an appellate Court in regard to findings of fact made by a trial judge is well established. The trial judge's findings of fact on the evidence are not reviewable as to correctness by way of re-examination of the evidence. Inferences and deductions in a process of reasoning may be revisited. Conclusions based on examination of documentary material where this Court is in as good a position as the trial judge are of course open to reconsideration. In Hay v. O'Grady [1992] I.L.R.M. 689, the Supreme Court declared that an appeal court is bound by findings of fact made by the trial judge which are supported by credible evidence, even if there appears to be a preponderance of testimony against them. This is because the trial judge has the advantage of hearing the evidence and observing the manner in which it is given and the demeanour of the witnesses. Where inferences of fact are derived from oral evidence the appeal court should be slow to differ. However, the appellate Tribunal is in as good a position as the trial judge in drawing inferences from circumstantial evidence.
38. It is of course important for the parties and for an appeal Court to understand the reasons why a trial judge made findings of fact. Failure to do so is inconsistent with the principles of reasoned decision making which the courts impose on administrative bodies. In a case where the judge adopts a strong view in favour of one side, it is good practice to reveal the decision maker's rationale. In this case, there are some trenchant findings on witness credibility which are justified by no more than a bald declaration of acceptance or preference.
Discussion
39. The central issue in the appeal is whether the evidence established a case of bullying. That is the first and principal ground of the appeal. The other two grounds can be briefly decided. The second ground was that there was an absence of evidence of causation in the case to connect any offensive conduct on the part of the school or its officers with the mental health issues that the plaintiff alleged had resulted from the way the school treated her.
40. This point cannot succeed because there was clear medical evidence from the plaintiff’s General Practitioner and from a consultant psychiatrist which was accepted by the trial judge and which he was entitled to accept. The fact that there might be room for scepticism about the connection of the conduct complained about and the injuries alleged to have resulted does not furnish a ground of appeal. A trial judge is entitled to accept evidence that he or she has heard and it is not the function of the Court of Appeal to retry the case. This ground accordingly fails.
41. The third ground concerns the award of € 47,000 for loss of earnings into the future. The defendant/appellant protests that such a heading of damages was not actually claimed. It was not pleaded and neither was it provided in particulars under S.I. 391. Evidence was not given in the case as to how long it was going to take the plaintiff to get back to work. Since the loss of wages to date of trial was calculated at almost € 94,000, it may be that the trial judge divided the sum for past loss of earnings in half and made an award accordingly. In my view, this part of the award of damages cannot stand because there is no evidential basis for it and it was not part of the plaintiff' claim. Therefore, irrespective of the fate of ground number 1, I would reduce the damages by € 47,000.
42. Turning now to the first and fundamental ground, it is useful to begin with consideration in turn of the events involving the plaintiff during the relevant period.
43. On 15th September 2009, the plaintiff, in the course of a meeting in the Principal's office, was advised that her conduct in locking the door was being investigated in the context of a disciplinary procedure. This was not inappropriate or undermining of her dignity in the workplace.
44. The meeting with the Principal on the same afternoon, when she brought another Special Needs Assistant with her did not, on her own evidence, cause any concern. The meeting as the judge held centred on developing a programme to assess the progress of the child although there was some other discussion. Whatever about that, on the plaintiff's evidence she was not upset.
45. The meeting that took place between the Principal and the plaintiff on 18th September 2009 was not upsetting and seems to have been to decide on a date when the child's progress would be reviewed.
46. On 20th October 2009, all of the SNAs were advised not to lock the Sensory Room door. Again, no complaint can be made regarding the defendant's conduct in this regard.
47. Approximately four weeks later, the plaintiff met with Ms. Bramhall, in the course of which it was noted that the plaintiff had incorrectly filled in a form regarding the child's ability to use a swing. The plaintiff did not seem to take any exception to Ms. Bramhall's refusal to alter the former to insert the correct information.
48. The first action on the part of the defendant that might potentially be viewed as inappropriate, or as undermining of the plaintiff in the workplace, was the meeting with the Principal on 19th October 2009, in which the Principal characterised her error in relation to the completion of documentation concerning the child's ability to use the swing as some type of falsification. The plaintiff said she felt she was treated unfairly in the course of this meeting.
49. The trial judge was critical of Ms. Bramhall in implicit terms for recording the plaintiff’s entry on the form as “miscommunication”, and explicitly, of Ms Dempsey, the Principal, whose conduct in accusing the plaintiff of falsification he regarded as irrational at best, and he just stopped short of characterising it as being malicious. The evidence in the case, however, as fairly recorded by the judge, does permit a query as to the validity of such a trenchant condemnation. Another SNA had been more successful with the child on occasions when the plaintiff was on sick leave and Ms. Bramhall encouraged her to try to get him to use the equipment with her. The form only required a tick to confirm a positive achievement so it was not a complicated matter and unfamiliarity does not appear to be a convincing reason for error.
50. Accuracy in such circumstances is important. Irrespective of those considerations, the fact is that Ms. Bramhall, as the person in charge of the plaintiff, was not satisfied to accept that the wrong entry was simply a trivial error and so reported to the Principal. Ms. Dempsey challenged the plaintiff with having made a false entry, which the plaintiff denied.
51. It is difficult to see how the Principal was to be criticised for following up the information supplied by the teacher about her Special Needs Assistant. It may be that she was wrong in her inference or understanding of what Ms. Bramhall meant, but it is significant that the latter had been unwilling to overlook the matter. Even if either, or both the Principal and Ms. Bramhall was or were in error, it cannot be said that it was inappropriate because the issue was obviously relevant to their functions in the school and their responsibilities. The mere fact that a superior puts an allegation to an employee does not mean that he or she is bullying the person. In the circumstances, this encounter cannot be said to have been inappropriate.
52. Moreover, even if this was an unfair characterisation of the plaintiff’s actions in incorrectly completing the documentation, it was not an exchange which undermined her dignity at work.
53. While the plaintiff complained that a few days before 23rd November, she was told that her conduct was going to be discussed by the Board of Management, her own evidence was that she did not believe there would be any adverse outcome to that discussion, particularly as she was not furnished with any material that was being put before them. Hence, it is hard to see that this exchange between herself and the Principal could be viewed as bullying or undermining her dignity.
54. The plaintiff was not present at the Board meeting in November 2009 when the issue was brought up and the sanction was determined.
55. The next potentially relevant encounter in relation to bullying is the meeting on the 21st December 2009 when the Principal advised her that a final warning would be delivered after Christmas and that this would remain on her work record for a period of six months. This exchange was a one-off incident. The timing may have been harsh or thoughtless, but it cannot be viewed as part of repeated or inappropriate behaviour or which undermined the plaintiff's dignity in the workplace.
56. On 18th January 2010, the plaintiff met with the Principal and Mr. Lynch and was advised that she would get a formal warning that would be on record for 18 months. She was shocked and upset at this information. On the trial judge’s conclusion that she should not have been subjected to the disciplinary process, or that the process was unfair, those are not demonstrative that this meeting, the content whereof was not published to any of her work colleagues, was part of a sequence of repeated inappropriate behaviour that undermined her dignity in the workplace.
57. The promised warning letter was delivered on 20th January 2010. Perhaps the sanction was unfair, but it is hard again to see that receipt of a letter published solely to herself was one which could amount to bullying.
58. The next event that might be relevant in the context of the bullying claim is the meeting between the plaintiff and the Principal, allegedly to achieve closure, on 27th January 2010. The judge accepts that the plaintiff, in the course of that meeting, was denigrated and bullied. However, there were no witnesses to that exchange. The content of the exchange was not published to any third party. This event cannot be considered part of a pattern of repeated inappropriate behaviour that undermined the plaintiff’s dignity.
59. The correspondence, in which the Board stood over its decision, despite the points made in favour of the plaintiff, did not constitute bullying within the accepted meaning. Neither was its refusal to be moved by the results of the questionnaire completed by the plaintiff's colleagues. Its decision may have been wrong. It may have given no meaningful consideration to the fact that the plaintiff had established through her questionnaire that it was commonplace for the SNAs is to lock the door.
60. Finally, the minor incident of criticism of the plaintiff in respect of her alleged late arrival to school on 27th September 2010 cannot be considered bullying. The plaintiff may have been on time, as alleged. Perhaps the Principal was wrong or unfair, but it was not part of a repeated pattern of inappropriate and bullying behaviour.
61. Looking at the case more generally, the locked door was a proper matter of concern for the Principal and the Board. That is correctly acknowledged by the trial judge. The question of the wrong entry in the form was legitimate subject of inquiry by the Principal. Having said that, it is clear that the plaintiff was denied due process and she has real ground of complaint in that regard. The more serious the allegations, the greater the practical importance of fair procedures. In circumstances in which a person might have lost her job, the seriousness of the situation is beyond question.
62. The trial judge is right to be critical of the approach of the Board, not only to the denial of procedural fairness, but also to the severity of the punishment that was imposed. The circumstances that the plaintiff and her Union representative and solicitors put forward amounted at least to substantial mitigation, even if it was legitimate to consider that anybody working in child care should have known not to lock such a door.
63. The Union representative, Mr. Mullen, was entirely correct, in my view, in pointing out the procedural unfairness and the mitigating elements. He was also impressively realistic in his attitude to the locked door. It is noteworthy that this official, who might be considered to be very informed about issues of bullying, did not make any such allegation.
64. Essentially, the Principal and the Board overreacted and denied due process in a matter of legitimate concern without verifying the defence that the plaintiff put forward, but that is not workplace bullying.
65. Under this definition, and so far as relevant to this, case there has to be: -
• Inappropriate behaviour
• repeated
• direct or indirect
• conducted by Ms. Dempsey, with or without the addition of Mr. Lynch the Chairman and/or the Board or the other members
• which could reasonably be regarded as undermining the plaintiff’s right to dignity at work.
Disciplinary matters are proper and appropriate for a Principal of the school and the Board of Management.
66. Was the behaviour repeated? My understanding of the meaning of this term is that it is the same behaviour or class of behaviour that is offensive and amounts to bullying. Name-calling or humiliating comments or practical jokes are examples. It is stretching the meaning of the word ‘repeated’ much too far to regard a continuing process of discipline in pursuit of legitimate concerns, even if actually mistaken or unfair, as repeated behaviour.
67. There is also difficulty in considering what happened as undermining the plaintiff’s right to dignity at work. It may have undermined the plaintiff’s work, or even her right to work, but it cannot properly be regarded as undermining her dignity. It is easy to see how name-calling etc. - what would be considered obvious examples of bullying - would and could be regarded as undermining the person’s dignity at work. Obviously, the fact that it may be different from other examples of bullying does not exclude this behaviour but it seems legitimate to look at how the plaintiff’s dignity was threatened.
68. In my view, if it was regarded as a serious matter for Ms. Ruffley to have behaved in the way she did in the Sensory Room on 14th September 2009, which is accepted by the judge as being a reasonable concern for the school, it was not a defence for her to point out that some of her colleagues on some occasions did the same thing, but I do think that would amount to substantial mitigation of the gravity of the offence. In those circumstances, it should have affected the punishment that was meted out, but I do not think it can be said that because or simply because others did the same thing, that necessarily meant that the disciplinary process was wholly unjustified. It was a case where this was discovered and Ms. Ruffley was the person who was responsible and there was no doubt about that, whereas there might well be an investigation and it might or might not disclose that others had done the same thing on some specific occasion, it strikes me as being a fairly doubtful proposition that any such investigation was going to yield clear evidence of the same having happened on some specific other occasion with such clarity or precision or evidence to furnish a basis of a disciplinary proceeding against somebody else.
69. The question in these circumstances is whether this chain of events constitutes bullying. It is clear that there is legitimate reason for complaint by Ms. Ruffley that she was treated harshly by the disciplinary process. It was not Ms. Dempsey’s original plan, as the evidence revealed, to institute disciplinary proceedings against here, but the Principal changed her mind when she found out about the form-filling incident as reported a month later by Ms. Bramhall. So now the situation changed. Enter the Chairman of the Board, Mr. Lynch, whose concern now became the locking of the door which he regarded at a level of seriousness above that taken by Ms. Dempsey. The Board went along with that. A severe sanction was imposed.
70. The Trade Union official’s letter was a reasonable one and should have resulted in a reconsideration of the situation and perhaps a fuller investigation or an investigation in the first place. The judge’s finding that there was not an investigation or a proper investigation at any reasonable or early enough time seems unchallengeable. The fact is that the school could have ascertained that what the plaintiff was asserting was actually correct. They could then have decided that it did not furnish a defence to the allegation, but nevertheless constituted a considerable mitigation.
71. The judge found that all this was inappropriate behaviour in the first place, a term that he took from the statutory definition of bullying. Then he decided that it was persistent because the process had continued in the way it did, and particularly in persisting beyond March 2010. This is where the question arises as to whether the trial judge’s findings can be upheld in regard to his conclusion about bullying. It seems to come down in the end to a question that this was a disciplinary process that went wrong. It was somewhat excessive and undoubtedly contrary to fair procedures in the first instance but it does seem to have been entirely genuine. The judge accepted that it was legitimate concern on the part of the school management to consider that locking the door was completely unacceptable practice. That was in the interest of child protection and also protection of the carers. So, there was a genuine and serious concern and the plaintiff had engaged in this behaviour about which there was a reasonable enough view that a person in her position should have known that this was not something that should have happened and was inappropriate, to use that term, for somebody in charge of children, particularly children with special needs which was the case here.
72. It may be that Ms. Dempsey was mistaken or that she made an exaggerated response to Ms. Bramhall’s form-filling revelation about the plaintiff. She had a situation where the plaintiff had come under adverse attention in the recent past and was now required to carry out a routine function and had not got it right and Ms. Dempsey had concluded that this was an example of falsification on the part of the plaintiff. So she decided that it was going to the Board and then perhaps Mr. Lynch was entitled to take the strong view that he did - that appears to be the implication of the learned trial judge’s comments and findings.
73. Overall, it seems to me that the required elements of a bullying case have not been established here. Accepting all the criticisms that were made by the trial judge of the process and of Ms. Dempsey and of Mr. Lynch and the Board, here was a process that was engaged in that emanated from serious concerns. It is not that they were just and reasonable in their conclusions. The judge, as I see it, was entitled to come to the conclusion that the Board was quite wrong in its views. He was also justified in coming to the conclusion that Ms. Dempsey arrived at a bizarre decision that there was fabrication. But he does not find that Ms. Dempsey contrived this whole process for the purpose of getting at the plaintiff and neither did Mr. Lynch nor was there any suggestion that he did so. So in circumstances where the Principal of the school and the Chairman of the Board were entitled to be concerned about a matter and were entitled to investigate it, but failed to investigate it, and mistakenly therefore or wrongly implicated the plaintiff, not in a matter for which she might not be criticised, but in a matter whose degree was not of the level that the Board considered it had reached. They were not entitled to consider the matter at the level that they did. So my view is that that does not amount to bullying in law and I think that is a subject that has to be examined in more detail.
Conclusion
74. This was not a case of bullying because:-
(i) The motive was child protection in a school devoted exclusively to children with Special Needs;
(ii) It was accepted all round that it was legitimate in the interest of child protection to ensure that the Sensory Room door was not locked - see
the comments of the trial judge and of Mr. Mullen, the trade union official;
(iii) The Chairman, Mr. Lynch, thought that the plaintiff, as an experienced Special Needs Assistant, should have known not to lock the door; this view does not have to be held to be correct and it is not disputed that it was honestly held.
(iv) The defence that others also locked the door was mitigation but not a full answer to the complaint;
(v) The individual encounters may reasonably be viewed in a different light e.g. the report by Ms. Bramhall on the plaintiff’s completion, inaccurately, of the Form 6, which undermines the conclusion that the process constituted bullying.
(vi) This was a disciplinary process, perhaps arising from a misunderstanding, but honestly pursued in the interest of the children;
(vii) There was nothing in the process of investigation that constituted a sustained campaign maliciously pursued in order to intimidate or humiliate or denigrate the plaintiff;
(viii) The person who would have been most alert as to bullying was Mr. Mullen, the plaintiff’s trade union representative, who did not suggest that this was such a case;
(ix) At worst, this was a botched disciplinary process and not a case of repeated offensive behaviour intended to destroy the plaintiff’s dignity at work;
(x) The definition of bullying has to be stretched beyond breaking point to fit this case;
(xi) If the trial judge’s conclusions are permitted to stand, this judgment will widen the tort of bullying to all kinds of situations that it was never intended to cover;
(xii) The definition 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 applies. This is not such a case.
75. I would accordingly allow the appeal.
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 8th day of December 2015
1. This is an appeal by the defendant against the order of the High Court of 30th May 2014, awarding a sum of €255,276.39 as damages for personal injuries by reason of the negligence of the defendant and the judgment of 9th May, 2014, of the trial judge (O’Neill J.) pursuant to which the order was made.
2. The plaintiff was employed by the defendant as a Special Needs Assistant (SNA) in the defendant’s National School known as St. Anne’s in County Kildare. The plaintiff’s claim was based upon facts commencing in September 2009, and ending in September 2010, which, it was contended, constituted “workplace bullying” as defined in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace)(Declaration) Order 2002 (S.I. No. 17/2002). The trial judge upheld the plaintiff’s claim that the conduct of the defendant its servants and agents of which she complained constituted workplace bullying, as defined. The plaintiff’s claim as pleaded was that the defendant was in breach of its duty of care as her employer to the plaintiff and negligent. There does not appear to have been any dispute that if the conduct complained amounted to workplace bullying as defined that the defendant was negligent. The trial judge further upheld the plaintiff’s claim that by reason of the said conduct of the defendant, she had suffered an identifiable psychiatric injury caused by the said conduct and awarded in total the sum already indicated.
3. The trial judge refused the defendant’s application for a stay on the order of 30th May 2014.
4. The defendant appealed the judgment and order to the Supreme Court and applied for a stay on the High Court order. By order of 4th July 2014, the Supreme Court granted a stay on the High Court order upon condition that the defendant pay to the plaintiff a sum of €100,000 within two weeks from the date thereof and gave directions aimed at an expedited appeal, including an application to be made to the Chief Justice for priority in October 2014.
5. On 29th October, 2014, the Chief Justice, with the concurrence of the other members of the Supreme Court, made a direction pursuant to which this appeal was transferred to the Court of Appeal.
6. The defendants have pursued a focused appeal upon three grounds:
(i) Notwithstanding findings of fact made by the trial judge (which, it was accepted, could not be interfered with on appeal), the conduct complained of was, in substance, a flawed disciplinary procedure and did not constitute “workplace bullying” as defined in the 2002 Order.
(ii) Even if the conduct of the defendant did amount to “workplace bullying”, as defined, the plaintiff did not suffer a psychiatric illness caused by the said conduct of the defendant.
(iii) The trial judge was in error in awarding a sum of €47,000 in respect of future loss of earnings when no particularised claim for future loss of earnings had been made in the course of the proceeding before him.
Whilst the notice of appeal included a ground in respect of excessive general damages that was not seriously pursued at the hearing.
7. Much of the submission in the appeal centred on the first ground. There was relatively little disagreement between the parties as to the applicable law. Nevertheless, there were certain aspects of the principles about which there was not agreement and in respect of which there is not clear authority. I propose, therefore, firstly setting out my conclusions on the applicable law insofar as they relate to the plaintiff’s claim herein prior to considering the appeal against the conclusions reached by the trial judge.
Applicable Law
8. It must be recalled that the plaintiff’s claim against her employer is a claim for damages for negligence or breach of duty. It was also pleaded in contract but nothing turns on that. Claims of this nature, where the breach of duty alleged is a failure to prevent or engaging in workplace bullying are often colloquially referred to as claims for bullying and harassment. However, as has been pointed out on more than one occasion, there is no separate tort of bullying or harassment (see Kelly v. Bon Secours Health System [2012] IEHC 21; Nyhan v. Commissioner of An Garda Síochána & Ors [2012] IEHC 329). The claim is a claim for damages for breach of the duty of care allegedly owed by the employer to the employee. Where the substance of the claim is an allegation of what is termed bullying or harassment, the causes of action and necessary proofs on the part of a plaintiff may differ depending upon whether the alleged perpetrator is simply a fellow employee, or whether, as was the factual position in this claim, the conduct alleged to constitute the bullying was by the employer, in the sense of either the employer itself or its management. McMahon & Binchy: ‘Law of Torts’ 4th Ed. at para. [18.80], puts it thus:
“[18.80] There is no distinctive tort of bullying or harassment. The question is to be resolved in the context of employers’ liability, by asking whether the employers took reasonable care not to expose the plaintiff to the risk of injury from such conduct. The answer will depend in large part on what facts ought to have been known to the employer. Naturally, matters are different where the plaintiff’s claim is that he or she is the victim of ‘corporate bullying’, where the allegation is that the management of the enterprise is implicated in the bullying activity. Such claims have succeeded in some recent cases, and failed in others.”
9. On the facts herein, the conduct complained of by the plaintiff is conduct of the Principal of the school, Ms. Dempsey, and the Board of Management (“the Board”) which is the employer and its Chairman. It is a claim based upon an allegation of corporate bullying, as that term has been used by McMahon & Binchy in the above cited extract.
10. The complaint made by the plaintiff is that the conduct complained of amounts to “workplace bullying” as defined in para. 5 of the Schedule to the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace)(Declaration) Order 2002 (S.I. No. 17/2002). That Order declares that the Code of Practice set out in its Schedule shall be a Code of Practice for the purposes of the Industrial Relations Act 1990. At para. 5, workplace bullying for the purposes of the Code of Practice is defined as follows:
“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 Code, as declared in the 2002 Order, notes that this definition was recommended by the Report by the Task Force on the Prevention of Workplace Bullying published in March 2001.
11. It is commoncase that the defendant, as employer of the plaintiff, owes her a duty of care not to engage in or permit conduct which constitutes workplace bullying as defined. This was also the position before the Supreme Court in Quigley v. Complex Tooling & Moulding Ltd. [2008] IESC 44, [2009] 1 IR 349, relied on by both parties, where the definition of workplace bullying taken from the Code of Practice declared in the 2010 Order, was accepted by the defendant as an accurate statement of the common law duty of care. The issue before the High Court, therefore, was whether or not the behaviour or conduct of the defendant (including that of the Principal) complained of constituted workplace bullying as defined. It is important to emphasise that what the Court has to consider in this appeal is whether or not the trial judge was correct in determining that the conduct of which the plaintiff complained as found by him constituted workplace bullying as defined in the 2002 Order. It is not a question as to whether or not the conduct amounted to bullying as that term might be more generally used or understood.
12. In Quigley, Fennelly J. (with whom Denham J. and Geoghegan J. agreed), identified that for the purpose of the above definition of workplace bullying, the conduct must be repeated, inappropriate and undermining the dignity of the employee at work. The identification of those elements presuppose, as was not in dispute in that case, that the actions took place either at the place of work or in the course of employment which is also a necessary proof. That is similarly not an issue in these proceedings.
13. As will appear from the more detailed consideration of the facts below, the complaints of the plaintiff relate to a flawed disciplinary procedure which commenced either in or some time after September 2009 and ended in May 2010. There is an additional complaint in relation to an incident in September 2010. The issues which arose in relation the definition of workplace bullying may be identified as follows:
(i) Could a flawed disciplinary procedure which goes on over a number of months and takes a number of steps ever be considered to be “repeated inappropriate behaviour” for the purposes of the definition?
(ii) Is the conduct complained as being “repeated inappropriate behaviour” to be objectively determined by the Court? As a related matter, is the intention of the person who is alleged to have carried out the behaviour relevant to the determination?
(iii) What are the elements of an individual’s “right to dignity at work”?
Inappropriate Behaviour
14. The only uncertainty in the submissions of the parties as to the proper approach of the Court in determining whether the conduct of the defendant and Principal, as found by the trial judge, was “inappropriate behaviour” within the meaning of the definition of workplace bullying was whether or not this should be objectively determined by the court, or whether the intent of the person concerned was relevant. It was commoncase, in accordance with the authorities, that a court, in assessing whether the alleged repeated inappropriate behaviour was such that it “could reasonably be regarded as undermining the individual’s right to dignity at work” must make that assessment objectively for the very reasons explained by Kearns P. in Glynn v. The Minister for Justice, Equality and Law Reform & Ors. [2014] IEHC 133. In that judgment, Kearns P. at para. 54, having set out the definition of workplace bullying, stated:
“This wording must be taken as requiring an objective test to determine if bullying has occurred. The test must, for reasons of commonsense also, be an objective one given that any other would leave every defendant vulnerable to allegations of bullying based on purely subjective perceptions on the part of a plaintiff who might contend that straightforward situations at work or otherwise were construed by him/her as amounting to bullying.”
15. The above followed a full quotation of the definition, including the reference to the “repeated inappropriate behaviour”. Counsel for the defendant drew attention to an earlier comment by Kearns P. at para. 50 of his judgment in relation to bullying as being “conduct which is intended to reduce that person’s self-worth”. He suggested that this cast some doubt upon the question as to whether Kearns P. intended that the question as to whether the relevant conduct constituted inappropriate behaviour for the purposes of the definition should also be objectively assessed. However, in the same judgment Kearns P. at p. 23, identified as the first question that must be asked in every bullying case, “. . . whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress”.
16. I am of the view that for the very reasons identified by Kearns P., not only must the question as to whether or not the inappropriate behaviour is such that it could reasonably be regarded as undermining the individual’s right to dignity at work be objectively assessed, but the question as to whether the behaviour is inappropriate must also be objectively assessed. It does not appear to me that it could be either dependent upon a subjective perception by the plaintiff, or indeed dependent upon the intent of the perpetrator. Such an approach would be inconsistent with objectively determining whether the inappropriate behaviour is such that it could reasonably be regarded as undermining the individual’s right to dignity at work. If appropriateness or not of the behaviour is to be objectively determined, then the intent of the perpetrator becomes irrelevant.
17. Accordingly, I have concluded that a court must first assess whether the conduct or behaviour alleged is objectively to be considered as repeated inappropriate behaviour. If so it must then determine objectively whether it is reasonably to be regarded as undermining the individual’s right to dignity at work.
18. It appears both difficult and probably dangerous to try and define at a level of principle what would meet the threshold of “inappropriate behaviour”. Any assessment of what is “appropriate” or “inappropriate” behaviour in a workplace context must depend on the relationship and relative positions of the individuals and the full factual context.
Repeated - Flawed Disciplinary Process
19. This appeal concerns, in accordance with the findings of fact made by the trial judge, a seriously flawed disciplinary process which commenced either in September or November 2009 and lasted until May 2010. It appears to have arisen from two separate incidents; a locked door in September 2009 and an inaccurate completion of an assessment form in October 2009. Counsel for the defendant submitted that as a single disciplinary process, albeit as he had to accept on appeal flawed, it could not amount to “repeated inappropriate behaviour” even if it were determined that certain parts of the disciplinary process were unfair or unjust.
20. At a level of principle, I cannot accept this submission. The phrase “repeated inappropriate behaviour” in the definition must, it appears to me, be construed in the context of the last sentence in the definition, namely, “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”. It therefore appears to me that “repeated” in the definition is being used for the purpose of connoting behaviour which is more than either an “isolated incident” or a “once-off incident”. A disciplinary process which continued over a number of months and, as this one did, consisted of several meetings and interactions between the plaintiff and the Principal and the Chairman of the Board, and the latter inter se and with other members of the Board cannot, as a matter of principle, be considered to be either an isolated incident or a once-off incident. Whether inappropriate behaviour which undermines dignity at work is to be considered as repeated for the purpose of the definition must depend on an assessment of all the facts.
21. Similarly, at the level of principle the fact that the allegedly inappropriate behaviour is part of a disciplinary process does not, it appears to me exclude it potentially constituting workplace bullying as defined if on an objective assessment of all the facts the behaviour complained of meets the criteria in the definition of workplace bullying. The fact that it forms part a disciplinary process may make it more difficult for a plaintiff to so establish. Accordingly, conduct or behaviour during a disciplinary process is not excluded as a matter of principle, but rather, the entire of the relevant facts must be objectively assessed for the purpose of determining whether or not the behaviour of the defendant of which the plaintiff complains objectively constitutes “repeated inappropriate behaviour”, and if so, whether such behaviour is such that it could “reasonably be regarded as undermining the individual’s right to dignity at work”.
Right to Dignity at Work
22. There was some discussion in the course of oral submission as to what were the essential elements of an employee’s right to dignity at work. Counsel was unable to assist the Court with any authorities which have considered this issue in the context of the definition of workplace bullying in the 2002 Order or otherwise. I am not aware of any consideration by a court which is of assistance. Again, it appears to me dangerous to attempt to provide a general definition of the elements which constitute a person’s right to dignity at work. Rather the Court should look at this in the context of the facts of this appeal and in particular both the context in which the alleged inappropriate behaviour arose and the relationship between the plaintiff and the defendant and Principal of the school. Where as on the facts of this case the Court is considering the right of the plaintiff as employee to dignity at work in a context of her treatment by the Principal of the school and the board of management in relation to a disciplinary process such right to dignity must include, it appears to me, a right to be treated with respect, fairly and not less favourably than other colleagues in a similar position. It must include a right not to be singled out for disciplinary treatment in relation to a practice which whilst not acceptable was engaged in by other similar colleagues. It is obvious that an employee must expect, in a situation where it is contended that his or her performance has been less than what is expected or required that she may be subjected to a disciplinary process. However, it appears to me that her right to dignity at work includes a right to be treated with respect and fairly in the above sense and not singled out unfairly from colleagues in a similar position in such disciplinary process.
Findings of trial judge
23. The case was at hearing for nine days before the trial judge. His judgment sets out in careful detail the facts and he makes certain findings of primary facts and in other instances draws inferences from the facts found or the evidence which he accepted. Where there was a complete clash of evidence he indicated in some instances the evidence of which witness he preferred to accept. With the exception of inferences drawn as to the manner in which the Principal must have presented the facts to the board of management meeting on 23rd November, Counsel for the defendant has not submitted that this Court should either set aside findings made or draw different inferences. He has accepted in accordance with the principles set out in Hay v. O’Grady [1992] IR 210, he cannot do so on this appeal having regard to the evidence before the trial judge. Counsel for the plaintiff in submission relied strongly on the findings made and inferences drawn by the trial judge.
24. The trial judge having set out his findings of fact concluded that the defendant both directly and through its Principal were guilty of repeated (or, as he put it, persistent) inappropriate behaviour which “wholly undermined” the plaintiff’s dignity at work. Central to the trial judge’s reasoning, based on the findings of fact made, was that the plaintiff should not have been subjected to the disciplinary process at issue as upon the true facts if known and discovered, as they ought to have been, it would have been “entirely unfair and inappropriate to have initiated a disciplinary process against the plaintiff alone”. He also formed the view that she was unfairly and inappropriately treated in the course of the disciplinary process. In my view, these were conclusions which he was entitled to come to on the facts as found by him. The reasons for which I have formed this view in summary are the following.
25. The relevant facts commenced on 15th September 2009. At this time, the plaintiff had been employed as a Special Needs Assistant (SNA) for approximately eleven years. It appears it was common case that she had discharged her duties as a SNA in that period in a satisfactory manner, enjoyed good relations with teachers and other SNAs and the Principal, Ms. Dempsey and never had any disciplinary issues or grievances save that there may have been some issues surrounding sick leave.
26. The school caters exclusively for children with intellectual disabilities. For approximately five years it had a room known as the “Sensory Room” whose purpose it was to develop the sensory perception of pupils. The door of the Sensory Room had a lock on the inside. Each pupil who used the Sensory Room had a programme designed for him or her by the occupational therapist which was carried out by one or two Special Needs Assistants.
27. It was common case in the evidence before the High Court that prior to 14th September 2009, no instruction was given to the SNAs either to lock the door of the Sensory Room whilst in there with a pupil or not to lock the door of the Sensory Room. It also appears to have been common case that the Safety Statement of the school was entirely silent on any health and safety aspects relating to the locking of the Sensory Room door.
28. The trial judge at para. 41 of his judgment found as a fact that there was “a general practice amongst many of the SNAs, probably a majority of locking the Sensory Room door for the same reasons that the plaintiff locked it from time to time”. This finding of fact has not been sought to be appealed and is one which the trial judge was entitled to conclude on the evidence and is central to his reasoning and what he concluded was the wrongful singling out of the plaintiff for disciplinary process.
29. The further facts as recorded or found in the judgment relevant to my reasoning include the following. On 14th September 2009, the plaintiff was in the Sensory Room with a young boy who suffered from ADHD and surprisingly he fell asleep. The plaintiff contacted her then class teacher, Ms. Bramhall for instructions. She was told to allow the boy sleep for a further period. Ms. Bramhall in turn was concerned and rang the Principal, Ms. Dempsey. Ms. Dempsey called to the Sensory Room and found the door locked and on her third attempt to gain entry the door was opened by the plaintiff who it is found readily accepted that the door had been locked. The question of it being locked or otherwise was not discussed and Ms. Dempsey confirmed the teacher’s instructions and ultimately the child returned with the plaintiff to the classroom.
30. On the following day, the plaintiff was informed by the Principal that she was being investigated in the context of a disciplinary procedure and in the afternoon there was a meeting between the plaintiff, another SNA, the Principal and Ms. Bramhall. The plaintiff accepted that she locked the Sensory Room door and had done so over several years; she gave reasons relating to the non entry of others and the prevention of the pupil described as a “runner” from leaving. She explained that she had not been told to lock nor had ever been instructed not to lock the door. She contended that in April 2009, when the Principal came into the room with a number of visitors and the plaintiff and another SNAs were present, the door had been locked. From the outset the plaintiff explained and contended that locking the Sensory Room door was commonplace amongst the SNAs. The Principal’s note of the meeting was produced to the trial judge and he noted that it did not record a need for further training of the plaintiff in the use of the Sensory Room.
31. A further meeting was held on 18th September 2009, between the Principal, the plaintiff and Ms. Bramhall. At p. 21 of his judgment, the trial judge appears to have accepted the evidence of Ms. Bramhall in relation to that meeting that it was for the purpose of going through a programme for the child in question in the Sensory Room. It was identified that the child was unwilling to get on the swing, notwithstanding that this was part of the programme. The trial judge records that “it was agreed that there would be a four week period during which the operation of the programme of this child by the plaintiff would be reviewed”. Following that meeting Ms. Bramhall drew up forms which listed all the activities in the programme and it provided for the ticking of those activities on a daily basis depending on whether or not they had been accomplished by the child. The plaintiff was to complete the forms.
32. The trial judge rejected the evidence of the Principal that she had handed a letter dated the 18th September to the plaintiff. He did so by reference to the reaction of the plaintiff to the letter when produced in cross examination and its inconsistency with the other contemporaneous events. The trial judge found as a fact at para. 29 that the meeting of 18th September, was “solely concerned with the suitability or otherwise of the child’s programme”. He further found that there was not “the slightest hint of any threat to the plaintiff disciplinary or otherwise”.
33. During the next four weeks the plaintiff initially reported that she was unable to get the child to use the swing, but by the third week, told Ms. Bramhall that she had persisted in trying and had succeeded in getting the child on to the swing, but sitting on it only and not standing or lying on it, the other two prescribed activities relating to the swing. Early in the period the plaintiff had been out of school for a couple of days and another SNA reported getting the child to use the swing.
34. At the end of the four-week period, Ms. Bramhall was conducting the anticipated review with the plaintiff and noticed that the plaintiff had ticked the box on the form for lying on the swing and queried this with the plaintiff who, the trial judge held promptly confirmed that this was wrong and sought Ms. Bramhall’s permission to change the form so as to make it more accurate. Ms. Bramhall refused to allow her to do this and recorded this result on the review of the plaintiff’s performance as a “miscommunication”.
35. There was a further meeting on 19th October between the Principal, Ms. Bramhall and the plaintiff for the purpose of considering Ms. Bramhall’s review of the plaintiff recorded on an SNA staff assessment form. The trial judge was unclear as to the reason for this review, but nothing turns on that. In the course of the meeting, the trial judge found that “the plaintiff was challenged by Ms. Dempsey for having initially recorded that the child the using the swing, as erroneously, Ms. Dempsey thought he was not supposed to use the swing and secondly for filling out the form inaccurately”. He also held that “the plaintiff having been treated in this way, was afflicted by an acute sense of unfairness and grievance and probably did react in a combative way by raising other issues with Ms. Dempsey”. He was satisfied that the plaintiff felt she was being treated unfairly in this review and that she made it apparent.
36. Ms. Dempsey characterised the inaccurate completion by the plaintiff of the form as “falsification” and in her view it raised an additional disciplinary issue. The trial judge records that forms of this kind had never been used before for this child or any child in the school
37. The evidence of Ms. Dempsey as recorded was to the effect, that because of the failure of the plaintiff to improve and her “falsification” of the forms, the disciplinary process needed to be revived and the matter brought to the attention of the Board for what she described as “advice as to how to proceed”.
38. It is also recorded that at this time Ms. Dempsey also spoke to the chairman of the Board, Mr. Lynch who gave evidence in which the trial judge found to have been “only concerned about the locking of the door, which he saw as wholly unacceptable because of the child protection implications involved”.
39. It is important to note that the trial judge was very careful to accept that the locking of the Sensory Room door was a child protection issue and that it was properly a matter of concern for the Board. His findings relate to the inappropriate singling out of the plaintiff for disciplinary action without any investigation when as he held upon the true state of the facts it had been common practice amongst the SNAs.
40. In advance of a scheduled meeting of the Board for the 23rd November, 2009, the plaintiff was informed by Ms. Dempsey that the matter was going to be raised with the Board, but no further information was given. Ms. Dempsey, in her evidence, is recorded as accepting that the plaintiff was merely told that “it” was going to the Board and no more.
41. The trial judge made the following findings in relation to what occurred between 15th September 2009 and the meeting of the Board on 23rd November at paras. 40 and 41 of his judgment:-
“40. In the two months that had elapsed since 15th September 2009, I am quite satisfied from the evidence that Ms. Dempsey did nothing to investigate the plaintiff’s contention that other SNAs locked the door of the Sensory Room, in effect, that it was a common practice amongst SNAs. Ms. Dempsey gave evidence of having regular meetings with teachers and SNAs over the school year so that over that time she would probably meet each member of staff once. Whist this process continued in the two-month period between 15th September 2009, and the 23rd November 2009, during which time she would probably have met four or five SNAs in this way, I am quite satisfied from the evidence that she did not elicit their views on whether or not there was a practice amongst the SNAs of locking the Sensory Room door. At a general meeting of SNAs on 20th October 2010, she did give an instruction that the Sensory Room door was not to be locked, but it is quite clear that she did not conduct any inquiry at this meeting to ascertain whether or not there was a common practice amongst SNAs of locking the door.
41. The evidence of the other SNAs who gave evidence in the case, and also the evidence of the plaintiff, which I accept in this regard, establishes to my satisfaction that there was a general practice amongst many of the SNAs, probably a majority, of locking the Sensory Room door for the same reasons that the plaintiff locked it from time to time.”
42. At the meeting of the Board on 23rd November, present were Ms. Dempsey, Mr. Lynch, the chairman, both of whom gave evidence and four other members. The trial judge records from their evidence that once Ms. Dempsey had presented this matter, which arose under “AOB” the other four members of the Board wanted the plaintiff to be instantly dismissed and it took some persuasion from Mr. Lynch and Ms. Dempsey to dissuade them from that course. The evidence of Ms. Dempsey was that she outlined the fully history of the matter to the Board and the trial judge records that the identity of the plaintiff was not revealed to the Board.
43. The defendants in submission do not accept that the inferences drawn by the trial judge in para. 48 in relation to the manner in which Ms. Dempsey as a matter of probability presented the matter to the Board are justified and I have not relied on those in my reasoning in this judgment. However, what the judge concluded and in my view is supported by the evidence and his other findings at the commencement at para. 49 of his judgment is:-
“Specifically, it is quite clear, that what they [the members of the Board] were asked to consider was the gross misconduct of a single SNA as distinct from a common practice amongst many SNAs, albeit unacceptable. Insofar as Ms. Dempsey gave a history of the review process discussed above, it is probable she presented this, as she did in her evidence, as a failure of training, culminating in the falsification of a document, a presentation of matters which was undoubtedly untrue, unreasonable and grossly unfair to the plaintiff.”
44. The minutes of the Board meeting at item 7 and its subsequent action are recorded by the trial judge at para.s 45 and 46 and were in the following terms:
“Issue with SNA’s performance. Pauline [Dempsey]outlined issues she had with an individual SNA. She has linked in with HR in KARE. She wanted the support of the Board to issue a verbal or written warning under the term of the SNA’s contract. Pauline to link in with HR in KARE to discuss the severity of the warning allowed for the presenting issues. All agreed to support the recommendation. Also, there is a mechanism to suspend an increment if there is dissatisfaction with an SNA’s performance. It was proposed that this should happen in this case in light of the situation Pauline outlined.”
Under the heading ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with disciplinary action. Notify DES of deferral of next increment for this individual.”
45. The next relevant event was when the Principal informed the plaintiff just before the Christmas break that she was going to get a Part 4 Final Warning which would be given formally in the New Year. The judge was satisfied that in a discussion between the plaintiff and Ms. Dempsey on inquiry the plaintiff was told that this would be on her record for six months.
46. On 18th January 2010, the plaintiff was asked to come to a meeting in the Principal’s office with Mr. Lynch. The plaintiff was accompanied by a colleague SNA. The trial judge held that at that meeting the plaintiff was told by Mr. Lynch that she was to receive a final stage Part 4 Final Warning for a breach in health and safety, the grounds of which were the locking of the Sensory Room door, further she was told that this would be on her record for eighteen months. The judge also held that the plaintiff was shocked by reason of the six month period indicated on 21st December 2009.
47. On the evening of 18th January, there was a Board meeting and the minutes record at Item 8 as set out at para. 53 of the judgment:
Under the heading of ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with letter.”
48. The judge found as a fact that despite what is recorded the issues were not “talked through” at the meeting with the plaintiff on the 18th January.
49. On 20th January, the plaintiff was summoned to the room of the Principal and handed a letter signed by the chairperson of the Board of management confirming the issue of the final written warning as per stage 4 of the disciplinary procedure. The letter is set out in full by the trial judge and, inter alia, stated:
“This warning is being issued as a result of the investigation that was carried out at the request of the Board of management into an incident that occurred on the 14th September, 2009, when you locked yourself and a child into the Sensory Room. On conclusion of the investigation, the matter was discussed at the Board of management on the 23rd November, 2009 and it was agreed at this meeting that you be issued with this warning.”
50. Following this letter, the trial judge made the following findings:
“56. It is to be observed immediately that the statement in the letter that an investigation was carried out at the request of the Board of management is simply not correct. The Board of management knew absolutely nothing of the locked door incident on 14th September, or of any other issue concerning the plaintiff, until the meeting of 23rd November 2009, when, for the first time, they were given Ms. Dempsey’s account of the matter. It is plainly obvious that after the Board of management meeting on 23rd November 2009, there was no further investigation other than queries addressed by Ms. Dempsey and Mr. Lynch, one to the Department of Education and Science with a view to deferring any increment in salary due to the plaintiff, and the other to KARE, solely with regard to the terms of the final written warning.
57. It transpired, on inquiry to the Department of Education and Science, that the plaintiff was not due an increment for three or four years, and therefore the defendants were unable to activate that penalty.
58. It useful to reflect on what had happened to the plaintiff up to this point in time. The plaintiff was subjected to a disciplinary sanction of a severe kind which was unmerited. By this, I mean that the offence of locking the Sensory Room door, which the defendants were entitled to regard as unacceptable, was undoubtedly a common practice amongst the SNAs, and had the defendants, and in particular, Ms. Dempsey, carried out the appropriate enquiries after 14th September 2009, at that time, that would undoubtedly have been readily ascertainable. She did not do that. As a consequence, the picture presented to the Board on 23rd November 2009, was of individual misconduct on the part of the plaintiff.”
51. Having further expanded on these matters, he then reached the conclusion at para. 63 of his judgment:-
“63. I am quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace.”
52. Next the plaintiff was asked to come to a meeting with Ms. Dempsey on the 27th January 2010, in respect of which there appears to have been a total conflict of evidence between the plaintiff and Ms. Dempsey. There were not other parties present and the trial judge accepted the evidence of the plaintiff as to what happened in this encounter. It is not submitted on appeal that he was not entitled to do so. This was clearly a question of assessing the relative credibilities of the witnesses in relation to the account of this meeting. The judge records in short form the evidence which he accepted of the plaintiff that “she was subjected to a considerable variety of denigration which belittled, humiliated and reduced her to tears”. Ms. Dempsey is recorded as having denied all of those allegations apart from having mentioned to her “that she had exhausted her use of sick leave and to be more careful on that matter in the future”.
53. Thereafter, the plaintiff went to her Union and a letter was sent by Mr. Mullen of IMPACT to Mr. Lynch in which he sought on her behalf to appeal against the sanction imposed on the grounds relating to the process and sanction and specifically stated:-
“The procedures in place in St. Anne’s had not made it clear that locking the Sensory Room was a health and safety breach. That is not to say that it was acceptable, but rather, that the practice was known and had not been objected to previously.”
54. Thereafter, a meeting was arranged for 23rd March 2010, attended by Mr. Lynch, Ms. Dempsey, the plaintiff and Mr. Mullen. The judge records Mr. Mullen as seeking to persuade the defendants to remove or withdraw the final letter of warning and advocated the closing of the door had been common practice amongst the SNAs. The plaintiff again mentioned the occasion in April 2009, when she and Ms. O’Connell were in the room and Ms. Dempsey had come to the room with a number of visitors and the room was locked. The judge records Ms. O’Connell as giving evidence to that effect. The outcome of that meeting was the Mr. Lynch requested inquiries be made of the SNAs to ascertain whether or not there was a practice to lock the door and also at the meeting the trial judge records Ms. Dempsey as having said that she conducted inquiries of approximately 70% of the SNAs none of whom admitted locking the door.
55. Following the meeting on 23rd March, the plaintiff devised a questionnaire which was put to her SNA colleagues with two questions:
56. Four SNAs answered the questionnaire. All four of whom answered “yes” to the first question and only one SNA answered “no” to the second question. The trial judge accepted evidence from the plaintiff that many more of the SNAs were willing to answer the questionnaire in the affirmative, but only if they would do so anonymously.
57. On 22nd April, Mr. Mullen wrote further to Mr. Lynch referring to the appeal, the questionnaire and seeking a decision on the appeal.
58. The next meeting of the Board on 26th April, appears from the minutes recorded by the trial judge to have considered the letter of the 22nd April and agreed that Ms. Dempsey would speak with the SNAs.
59. On 20th May, Mr. Lynch responded to Mr. Mullen in substance saying: “The Board of management considered the contents of your letter and have decided to stand over their original decision with regard to this matter”. However, as the trial judge records there was no meeting of the Board prior to the dispatch of that letter and the Board’s agreement to that effect was recorded in the minutes of a meeting of 8th June, 2010, which makes no reference to any consideration of the outcome of the inquiries by Ms. Dempsey amongst the SNAs as to what the position was with regard to locking the door.
60. The trial judge reached the following findings at para. 75 of his judgment:-
“I am quite satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff, namely, that the locking of the door was a common practice amongst the SNAs. At this late stage, when the Board had been alerted to the plaintiff’s case in this regard, they declined to give it any due consideration.”
61. Thereafter a letter was written in May or June 2010, by the plaintiff’s solicitors. This was initially responded to by Mr. Lynch on 28th June indicating that the issues raised would be discussed by the Board at the meeting of 20th September. Subsequent to that meeting, Mr. Lynch responded in some detail in which, inter alia, he denied “any question of bullying or harassment” of the plaintiff who it was contended “has at all times been treated with the utmost sensitivity and has been afforded all of the entitlements due to someone in her position." He then continued:-
“Whilst it may very well be that from time to time it would appear that certain members of staff have, on very rare occasions, seen fit to lock the door of the Sensory Room at St. Anne’s School, this is not the policy of the school and it strongly advised that members of staff not do this, for reasons as we are sure you will understand, that include the safety and wellbeing, not only of the children, but also the staff member concerned. . . .”
62. The trial judge quoted the letter in full and commented on a number of other matters including a reference to the necessity “on a number of occasions over the past several years to raise with your client the question of her uncertified absences on sick leave.”
63. Following a consideration of these exchanges the trial judge reached the following conclusions at paras. 87 and 88 of his judgment:-
“87. Up until March 2010, it may have been the case that the Board were not aware of the merits of the case being made by the plaintiff, namely, that it was a common practice among SNAs to lock the door of the Sensory Room, notwithstanding that Ms. Dempsey, the Principal, was well aware of the plaintiff’s case. However, from March 2010, onwards, there can be no doubt but that the Board were clearly alerted to the plaintiff’s case, and from not later than April 2010, were also aware that several other SNAs also occasionally locked the Sensory Room door. The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all, consider the merits of the plaintiff’s case at this late stage when they were aware of the impact that their now erroneous and unjust decision was having on the plaintiff was, in my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.
88. Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”
Conclusion on First Ground of Appeal
64. In my view, it was open to the trial judge to make the findings made and he was correct in determining that there was repeated inappropriate behaviour by or on behalf of the defendant, and objectively, it was behaviour which could reasonably be regarded as undermining the plaintiff’s right to dignity at that work. As stated at the outset of this judgment, the right to dignity at work in the context of a potential disciplinary process includes a right to be treated with respect, fairly and not less favourable than colleagues in a similar position. Further, it must include a right not to be singled out for disciplinary treatment in relation to a practice, which whilst not acceptable, was engaged in by other similar colleagues. This was precisely the effect of the repeated inappropriate behaviour by the defendant both directly and through its Principal on the plaintiff having regard to the findings made by the trial judge.
65. In reaching this conclusion, I fully recognise that the locking of the Sensory Room door was properly considered by the Board to be a serious child protection issue. However, the door was fitted with a lock; it was agreed that no instruction had been given to SNAs not to lock the door; the trial judge, held it was a common practice amongst SNAs to lock the door; also, that such contention was immediately made by the plaintiff to the Principal. He further held that the Principal, prior to presenting the matter to the Board of management on 23rd November, failed to conduct any inquiry amongst the other SNAs as to whether they did or did not have a practice of locking the Sensory Room door, but on 20th October, she considered it necessary to give a general direction to the SNAs not to lock the Sensory room door. The presentation by the Principal to the Board of the issue as a disciplinary matter relating to the plaintiff alone was, in my view, on all the facts held, objectively inappropriate behaviour. The inappropriate behaviour was repeated in the pursuit by the Principal with the support of the Board, as recorded in the minutes of the meeting of 23rd November, of a severe disciplinary sanction against the plaintiff. The Board itself, in my view, was guilty of inappropriate behaviour in furnishing a letter in which they gave as the basis for the stage 4 warning being issued to the plaintiff to be “as a result of the investigation that was carried out at the request of the Board of management into an incident that on the 14th September, 2009 . . . .” when as held by the trial judge that was simply “not correct” as no such investigation was carried out. On the findings of the trial judge, the behaviour of the Principal during the meeting of 27th January 2010, with the plaintiff was inappropriate. Finally, there was, as determined by the judge, at a time when the Board were made aware of both the plaintiff’s case and the fact that several other SNAs also occasionally locked the Sensory Room door, the rejection of the plaintiff’s appeal without any meaningful consideration of the plaintiff’s case and the subsequent failure and refusal by the Board in the autumn of 2010, when given a fresh opportunity to consider the merits of the plaintiffs’ case at that late stage. The above repeated inappropriate behaviour is such that objectively it could reasonably be regarded as undermining the plaintiff’s right to dignity at work.
66. Accordingly, I would dismiss the defendant’s appeal against the conclusion reached on this issue by the trial judge.
Causation and Future loss of Earnings
67. I have read in draft the judgment of the President. I agree with his conclusion that there was evidence upon which the trial judge was entitled to hold that the plaintiff suffered a psychiatric illness caused by the said conduct of the defendant. I also agree with the President that the appeal against the award of €47,000 for future loss of earnings in the absence of a claim for same must be allowed.
Decision
68. I would dismiss the appeal except in relation to the future loss of earnings and hold that the High Court order should be varied by reducing the amount of the damages awarded by €47,000 to €208,276.39.
