SUPREME COURT
Appeal No: 2016/24
Denham C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.
Úna Ruffley
Appellant
AND
The Board of Management of St. Anne’s School
Respondent
Judgment of O’Donnell J. delivered the 26th of May 2017
1 This case has already been the subject of a detailed High Court judgment (Ó’Néill J.), [2014] IEHC 235, and three considered judgments of the Court of Appeal, [2015] IECA 287. Normally in such circumstances, it would not be necessary to repeat the facts in particular detail. However, this is an unusual case, and since there has been considerable disagreement as to how to characterise the facts in this case, it is necessary to give some account of the background to this complex case.
2 By the time of the events in 2009 and 2010 which are the subject matter of these proceedings, the plaintiff, Úna Ruffley, had been employed as a Special Needs Assistant (“SNA”) in St. Anne’s School at the Curragh, County Kildare for more than ten years, without notable incident. That school, although treated as a national school, catered exclusively for children with intellectual disabilities and indeed took children from the age of 4 up to 18 years of age. The school had been founded by KARE, an organisation of parents of children with physical and intellectual disabilities. St. Anne’s was under the patronage of KARE, and the Chief Executive of that body, Mr. Christy Lynch, was also the Chairman of the Board of Management of St. Anne’s.
3 St. Anne’s is a small institution catering for between 70 and 75 children, and in 2009 employed 14 teachers and 26 SNAs. The school also had available to it external services such as occupational therapy. It was not in dispute that until the events here described, she had performed her work satisfactorily, and enjoyed good relations with the teachers, others SNAs and the principal, Ms. Dempsey, who figures significantly in the account of this case.
4 For about five years prior to September 2009, the school had a sensory room used to develop the sensory perception of pupils by exposing them to a variety of experiences such as music, vibration, movement, light and colour. The room had previously been used as a store room for computer equipment. It could be locked from the outside with a key, although the evidence was that was never used. It could also be closed from the inside by simply turning a lock to either open or close the door in a fashion which it was said was similar to that in use on a standard toilet door. That lock gave rise to a dispute which has meant that Ms. Ruffley has not worked in St. Anne’s or anywhere else for more than 6 years now, and has led, through an eleven day hearing in the High Court, and a two day appeal to the Court of Appeal, to this Court.
5 The Events
(i) 14th September 2009
On this day Ms. Ruffley was in the room working with a young pupil. Unusually, as he was normally an extremely active child who suffered from ADHD, he fell fast asleep. Ms. Ruffley went out and phoned the teacher Ms. Rachel Bramhall, to ask for instructions. She was told to leave the child asleep, and if he had not awoken within 20 minutes to bring him back to the class. The teacher however being concerned contacted the headmistress in turn. Ms. Dempsey went to the room where she discovered that the door had been locked from the inside, and only gained entry on her third attempt. However, the issue of the door being locked was not raised then.
(ii) 15th September 2009
The following day Ms. Ruffley attended work and was asked by Ms. Dempsey to come to her office. Once there, Ms. Dempsey informed her that she was handling the incident as a disciplinary matter. Ms. Ruffley initially thought that this was because the child had been asleep, but Ms. Dempsey explained it was because the door had been locked. It appears from Ms. Dempsey’s note referred to in the judgment of the High Court that Ms. Ruffley said at this point that she hoped the principal would deal with the other SNAs that did this. The principal’s response was apparently that this was another issue for another day. Ms. Ruffley was requested to return to the office at 2.30pm and informed that someone could attend with her, if she wished.
(iii) 15th September 2009: 2.30pm
Ms. Ruffley returned to the principal’s office accompanied by Ms. Louise Webb, a fellow SNA. The principal had also arranged for Ms. Bramhall, the teacher involved, to be there also. Ms. Ruffley accepted that she had locked the door and said it had been her practice to do so for a number of years both to prevent other pupils entering and disrupting the session and to prevent children, some of whom were very active, from running out of the room. Such children were often described as “runners” and as it happened the child involved here was known to be a “runner”. Ms. Ruffley also claimed that the door had been locked on other occasions including one in April 2009, when she alleged the principal had brought visitors to the room. Ms. Dempsey responded apparently that she had never been aware that the room had been locked and if so would have raised the issue. There was some further discussion of the care of the child in question. It is not suggested that any specific disciplinary action was discussed or suggested at this meeting.
(iv) 18th September 2009
There was a further meeting between Ms. Ruffley, the principal, and Ms. Bramhall. This meeting discussed the care to be given to the child, and it was agreed that over a four week period the plaintiff would complete a weekly form indicating the manner in which the therapy for the child had progressed.
Letter of the 18th September 2009 ( ?)
It is important to note at the outset, that this letter is disputed. The principal gave evidence however that she had handed a letter to Ms. Ruffley dated the 18th September, 2009. That letter recorded that as Ms. Ruffley did not appear clear as to the protocol surrounding the use of the room “we are not going to take disciplinary action”. The letter also recorded however that Ms. Ruffley’s care of the child in question would be reviewed over a three month period. It continued “if the required improvement is not made or if there is any such breach of discipline in any aspect of your work performance, this may result in disciplinary action”. The plaintiff emphatically denied ever having received the letter and the trial judge accepted she had not been given that letter then or since.
(v) Four weeks later (October 2009)
In the review, Ms. Bramhall observed that Ms Ruffley had ticked a box on the forms indicating that she had succeeded in getting the child to lie on the swing, which was an item of equipment in the room, and one recognised measurement of progress. This was queried by Ms. Bramhall, and the plaintiff immediately confirmed that she was wrong and asked to correct the form. The teacher refused to do so and recorded this matter on the form as a “miscommunication”.
(vi) 19th October 2009
A further meeting took place between the plaintiff and the principal Ms. Dempsey. The plaintiff contended that the events of this meeting took place on the 12th November, 2009, but the trial judge considered that she was wrong in this regard at least. At the meeting, the principal challenged the plaintiff in relation to the completion of the form, in part erroneously because she thought the child was not supposed to use the swing. She considered that the incorrect completion of the form amounted to falsification and a further disciplinary issue which justified her in bringing the matter to the Board. The trial judge found that the plaintiff made it clear at this meeting that she considered she was being treated unfairly. The trial judge considered that the form and the plaintiff’s error in that regard had been used by the principal “as a trap for the plaintiff”. (para.35 of the High Court judgment).
(vii) 12th November 2009
There was a further meeting between the plaintiff and the principal as a result of which the plaintiff was moved to another teacher’s classroom. According to the principal, this was necessitated because Ms. Bramhall with whom the plaintiff had been working was leaving the school. It was not suggested that there was anything sinister in this move, and the new teacher confirmed that the plaintiff had worked satisfactorily in the classroom thereafter.
(viii) 23rd November 2009: Board Meeting
The principal considered that she should bring the matter of the plaintiff’s performance to the attention of the board meeting which was held on this date. She spoke to the chairman, Mr. Lynch, in advance, who readily agreed to the matter being raised as he considered that the locking of the door was wholly unacceptable because of the child protection implications involved. The plaintiff was told in advance of the meeting that the matter was going to be raised, but not given any further details. In the discussions with the Board, the plaintiff was not identified. The minutes of the Board meeting recorded that the principal outlined “issues” she had with an individual SNA. She wanted the support of the Board to issue a verbal or written warning and the Board agreed. Evidence was given in relation to this meeting by both the principal Ms. Dempsey, and the chairman Mr Lynch. It appears that the other four members of the Board, who it was suggested were parents of children attending the school, wanted the plaintiff to be instantly dismissed and it took some persuasion from Ms. Dempsey and the chairman to dissuade them.
The Paragraph 48 Findings
At paragraph 48 of his judgment, the trial judge made important findings about this meeting:
“The evidence of Ms. Dempsey was that she outlined the full history of the matter to the Board. The extreme, if not, downright intemperate, reaction of the Board to whatever they were told, suggests as a matter of probability, the account given by Ms. Dempsey to the Board of the history of the matter was almost certainly untrue, highly biased, coloured, and grossly and unfairly damnified the plaintiff. Whilst I would readily accept that the members of the Board would be hyper-vigilant on all issues relating to child protection, and rightly so, as a group of probably fair-minded people, I do not think they would have reached conclusion so adverse to the plaintiff, unless grossly misled as to the true circumstances prevailing.”
There is no doubt that the plaintiff was not informed of the detail of what was said, was not invited to the meeting, or allowed to be represented or given any opportunity of having her views conveyed to the Board. The trial judge concluded at paragraph 50:
“To say that the conduct of Ms. Dempsey in relation to the lead up to this Board meeting and what happened at it was a departure from all the norms of natural justice is a feeble understatement.”
(ix) 21st December 2009
Nothing, however, was said to the plaintiff in the immediate aftermath of the meeting. It appears that the principal was to obtain advice and liaise with Human Resources in KARE. On the 21st December, 2009, just before the Christmas holidays, she informed the plaintiff that she was to get a Final Stage part four warning and would be given a formal notification in the New Year. When asked how long the warning would remain in place, Ms. Dempsey told the plaintiff that it would be on her file for six months.
(x) 18th January 2010
Whilst on yard duty, the plaintiff was asked to come to a meeting in the principal’s office with the principal and Mr. Lynch. The plaintiff was accompanied by a fellow SNA. She was told by Mr. Lynch that she would receive a Final Stage part four warning which would be on her record for 18 months. This period was specified because it appeared that this was provided for in the disciplinary policy and the reference to six months given before Christmas was a mistake. The trial judge found that the plaintiff indicated dissatisfaction and said she had been in touch with her union IMPACT and she wanted to appeal the decision.
(xi) 20th January 2010
The plaintiff called to the principal’s office and was handed a copy of the letter from the Board of Management signed by Mr. Lynch. While the letter informed the plaintiff of the sanction, and the period of 18 months during which it would remain on her file, it contained the following statement:
“This warning is being issued as a result of the investigation which was carried out at the request of the Board of management in to an incident that occurred on the 14th of September 2009, whereby you locked yourself and a child into the Sensory Room.”
The trial judge pointed out in his judgment that no investigation had been held into the matter whether at the request of the board or otherwise.
(xii) 27th January 2010
The plaintiff was asked to come to a meeting with Ms. Dempsey which it was said was to get “closure” on the matter. There was a total conflict of evidence as to what transpired. The trial judge accepted the plaintiff’s evidence that she was subjected to a variety of denigration which “belittled, humiliated and reduced her to tears”. (para.64)
(xiii) 29th January 2010
The plaintiff’s union representative, Mr. Phillip Mullen of IMPACT, wrote to Mr. Lynch referring to the final warning issued and stating that they wished to appeal on the following grounds:
“(1) Process: we believe that the process applied to the investigation did not accord Ms. Ruffley the right to adequately defend herself.
(2) The procedures in place in St. Anne’s had not made it clear that locking the safety room was a health and safety breach. That is not to say it was acceptable, but rather, that the practice was known and had not been objected to previously.
(3) Sanction: We believe that given the circumstances a final written warning is too severe a sanction in this case.
I would very much welcome an opportunity to elaborate on these points at your convenience and would appreciate if you would let me have copies of the relevant documentation (disciplinary procedure, original complaint, minutes of meetings, etc.).
I would also appreciate if you could confirm of any other disciplinary matters relating to Ms. Ruffley are outstanding.
I look forward to your early response.”
(xiv) 23rd March 2010
A meeting was arranged between Mr. Lynch, Ms. Dempsey, the plaintiff and Mr. Mullen. As a result of the meeting Mr Lynch asked the principal to ascertain whether or not there was a practice of locking the door. Ms. Dempsey said she had asked approximately 70% of SNAs, none of whom admitted to locking the door. Immediately after this meeting the plaintiff devised a rudimentary questionnaire which she distributed to her colleagues. It only contained two questions: “Have you ever locked the sensory room door?” and “Have you ever been asked by Pauline Dempsey ‘have you ever locked the Sensory Room Door?’”. Four colleagues answered, all of whom answered the first question “yes”. One of the colleagues answered the second question “no”.
(xv) 22nd April 2010
Mr. Mullen wrote to Mr. Lynch attaching a copy of the questionnaire and asking that it be taken into account and asking to be informed of the Board’s decision.
(xvi) 26th April 2010
There was a Board meeting which discussed the letter.
(xvii) 20th May 2010
Mr. Lynch wrote to Mr. Mullen responding that the Board stood over its original decision.
(xviii) 8th June 2010
There was a further Board meeting which referred to the correspondence and appears to have endorsed the decision to stand over the original sanction. The trial judge was satisfied that the Board did not give any meaningful consideration to the contention that there was a common practice of locking the room.
(xix) 27th May 2010 or 22nd June 2010
A letter was sent to the school by the plaintiff’s solicitors. There is confusion as to the date on the letter, but none as to the contents. The letter required the Board to acknowledge that they had received confirmation from other staff that it was “common practice that the sensory room was locked” and demanded an apology to Ms Ruffley. It appears that it was contended in this letter that the plaintiff had been bullied and harassed.
(xx) 24th September 2010
The Board sent a lengthy reply to the plaintiff’s solicitors. On the question of any practice of locking the door, it said:
“Whilst it may very well may 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 is 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.”
The letter concluded:
“You are correct in saying that IMPACT represented your client at various points in the course of correspondence about this matter. It was indicated to your client at that time that so long as everything ran smoothly, there should be no reason to revisit these matters. The fact that they are now being revisited is a matter entirely for your client who failed to see what, if anything is to be gained at this stage in continuing with this correspondence.”
The trial judge considered that this paragraph of the letter was a “further rebuff” by the defendant of the plaintiff’s primary assertion namely that the locking of the sensory door was a common practice among SNAs; a practice, which the earlier paragraph appeared to implicitly, if not expressly, acknowledge to have existed.
(xxi) 24th September 2010
The principal appears to have informed staff on this occasion that the door of the sensory room should not be locked. Thereafter there was further correspondence between the solicitors and the school. The trial judge concluded that the plaintiff had done her utmost to pursue her grievance through the internal procedure of the defendant.
6 The matters set out above appear to be the matters upon which the trial judge made his findings of liability. However, he also recorded a further event of the 27th September, 2010, when a further incident occurred within the school. The plaintiff contended that she had arrived on time but had moved her car because there was car park line painting going on. When she went back into the school, she was reprimanded by the principal for being late. As the trial judge observed this would normally be a trivial incident and of little consequence, but for the plaintiff it was the last straw and she left work on that occasion and, regrettably has not returned to the school, or, it appears, worked anywhere else.
Observations on the Facts
7 I have set out the events in this case comprehensively because much of the difference of opinion in this case depends on the assessment of the cumulative impact of the individual events, many of them unremarkable in themselves. It is I think useful to analyse these matters in a little more detail. Although the entire process complained of occupied a year between September 2009 and September 2010, all the incidents of direct engagement with the plaintiff occurred between September 2009 and March 2010 (with the exception of the events just recorded which occurred in September 2010 leading to the plaintiff taking sick leave). Indeed, the meetings between Ms. Ruffley, Ms. Dempsey and others, occurred between September and January 2010. Some of these meetings cannot reasonably be the subject of any complaint such as the meeting on the 18th September, 2009, agreeing that the plaintiff’s care of the child would be monitored or the meeting of the 12th November, 2009, to rearrange the plaintiff’s work with a new teacher. Other matters recorded such as the communication of an incorrect period of time for the duration of the warning, do not appear significant. The trial judge’s most trenchant criticisms were directed towards the procedure. This analysis suggests that the plaintiff’s essential complaint was what was done (i.e. the procedures adopted or the lack of them) rather than the manner in which it was done (personal remarks, or offensive behaviour etc). Indeed the object of most criticism is a meeting (23rd November, 2009) at which the plaintiff was not present and, was not identified by name to the members of the Board and whose identity was not known to anyone other than the principal and the chairman. What is alleged therefore is that the disciplinary process should not have been contemplated, or continued once she raised the question of other SNAs locking the door, the treatment of the incorrect completion of the form as a serious matter justifying the reactivation of the disciplinary issues, the fact that she was not represented at the Board meeting which decided to issue the warning to her, the excessive nature of that sanction, and the fact that the Board considered an appeal against its own decision. The Court of Appeal was correct in my view therefore to identify the core issue as whether a claim for unfair procedures leading to an unfair result could itself amount to bullying.
Fair Procedures
8 One difficulty of this case however is that although it was framed with a heavy emphasis on fairness of procedures, (and indeed it was conceded that the procedures were flawed, even botched), the claim was not directed to a declaration of invalidity of a process or any sanction. There was therefore no close analysis of the precise manner in which a requirement for fair procedures was not adhered to. This was a small school. The core incident itself was not in dispute. The principal was the witness to the fact that the door was locked, and that was not disputed as a matter of fact. Nor indeed does it appear to be disputed that it was inappropriate and improper to lock the door. It is said, and I agree, that once the plaintiff maintained that this was a common practice among SNAs, that that question should have been addressed at least having regard to the sanction to be imposed, and on the judge’s view, in order to consider whether the disciplinary process should be pursued at all. There is also no doubt that at a minimum, Ms. Ruffley ought to have been able to have been able to put her side of the story to the Board, and put forward any evidence in support of her position. I do not think that any elaborate hearing was required, but in any event none was provided. Perhaps one of the difficulties of this case is paradoxically if there had been a stark conflict of evidence, it might have been more apparent that a hearing was necessary. However, no hearing of any sort was held. Furthermore, it was probably undesirable that Ms. Dempsey should take any part in the decision (even though it appears that she argued for a lesser sanction). Although her account was not being contested in relation to the question of whether the door was locked or not, and no allegation had yet been made against her, nevertheless she was a participant in the matter. For all these reasons, and perhaps more, the procedure was clearly defective and liable to be so declared by any court. For my part however, I do not see anything malicious in the way in which this was carried out, and more importantly there was no such finding by the judge. It is not unusual that in small institutions which do not have extensive human resources expertise, (and sometimes even in businesses with such expertise) that errors can be made, particularly in cases which appear obvious, and where the sanction does not involve suspension or dismissal.
9 It is also said that the fact that the Board considered Ms. Ruffley’s appeal was itself a further egregious breach of fair procedures. Certainly, if this was considered to be an appeal it would be plainly wrong that the same body would hear an appeal against itself. However, Mr. Mullen of IMPACT who made the “appeal” appears to have directed it to the Board, and did not raise any issue as to the composition of the Board hearing the matter. It is not suggested there is a provision for appeal in the disciplinary procedures which applied, nor is an appeal a necessary component of a fair procedure. In the nature of this school, there could be no prospect of an internal appeal to another body. However, if this process was simply considered to be a review, or a reconsideration of a decision, then it is not so obviously flawed as a procedure. I do not think that too much should be read into the use of the word “appeal” by Mr. Mullen, unless it was specifically contended that this disciplinary code required such an appeal and was being invoked. If the Board had reconsidered the entire matter and removed the sanction, I do not think it would be said that the procedure was itself flawed simply because the Board had reconsidered the issue, even under the rubric of “appeal”.
10 In my view, the reconsideration by the Board of this matter did not cure the defects of the original Board meeting decision of the 23rd November, 2009, but in my view at least, it did not itself constitute a separate heading of unfair procedures. Overall, what occurred here, in my view at least, is an unfortunately not unusual instance of a flawed procedure. Many similar examples are regularly encountered in courts. Many defective and flawed procedures are carried out and where appropriate the courts will declare them invalid or quash them pursuant to judicial review. Here however the plaintiff claims that these matters have had a serious impact on her mental health and sought to recover substantial damages as a result.
11 The plaintiff had experienced two earlier incidents of depression, one post-partum, and one in reaction to bereavements. During the period of the events set out above, she suffered from headaches, insomnia, diarrhoea and anxiety which her GP put down to stress-related bullying. Evidence was given by a psychiatrist, Dr. Byrne, that her past periods of depression meant that she was predisposed to further depressive illness. The trial judge was satisfied that she suffered from an Anxiety and Depressive Disorder resulting in a high state of anxiety, loss of confidence and inability to cope with life. On review in 2014, she was found to be suffering from a severe anxiety state and severe depression although the judge thought it probable that at this stage the impending litigation was worsening her symptoms. He also concluded that it was probable that “when this litigation is concluded, there is likely to be significant improvement in her anxiety and depressive state”.
12 The trial judge concluded that the matters set out above constituted bullying. He accepted the definition of bullying found in the 2002 Code of Practice Detailing Procedures for Addressing Bullying in the Work Place, (Declaration) Order 2002 (S.I. No. 17/2002) 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.”
This has been accepted as an appropriate working definition for the purposes of the claim.
13 At paragraph 63, the trial judge concluded that the treatment throughout the process of the plaintiff by the principal was entirely “inappropriate” within the meaning of the definition. At paragraph 88, he concluded:
“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 one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”
Accordingly he concluded that she was entitled to damages calculated as follows:
Psychiatric injury to date €75,000.
Future psychiatric injury €40,000.
Loss of earnings up to 6th March 2014 €93,276.39
Future loss of earnings €47,000
Total: €255,276.39
Proceedings on Appeal
Court of Appeal
14 The Court of Appeal by a majority (Ryan P., Irvine J.; Finlay Geoghegan J. dissenting) allowed the defendant’s appeal. It appears to have been accepted however that there was no evidence supporting the claim to future loss of earnings and that amount should be deducted leaving the award in issue at €208,276. Ryan P. reviewed the evidence carefully and in some detail. His conclusions on the matter were set out succinctly at paragraph 74 of his judgment.
“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 interests 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 was 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 interests 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 the 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.”
15 For her part, Irvine J., having conducted a careful review of the evidence and the law, agreed with the conclusions of the Ryan P. She focused on the requirement that the conduct be repeated, inappropriate and undermines dignity. She considered in particular that to constitute repetition, the events relied on had to be reasonably proximate to each other otherwise there might be no more than individualised stated events. She gave the example where three events occurring within a month of each other might amount to bullying, whereas the same three events occurring over a three year period would not. She did not consider that the conduct of a body acting outside its jurisdiction should be considered to be “inappropriate” in the sense intended by the definition of bullying. She accepted however that a right to dignity at work entitled a person to be treated with reasonable fairness. She also considered that while in most cases of bullying there would be a public element to the undermining of the dignity of the individual, it was not essential that the conduct occur in public. Irvine J. concluded however that the matters alleged here did not amount to bullying. She was critical of the inferences drawn by the trial judge. Two in particular are illustrative. First, she addressed the conclusion that it could be inferred from what the High Court concluded was the ‘“downright intemperate” sanction imposed” that the Board at its meeting of the 23rd November, 2009, had been given an “almost certainly untrue, highly biased, coloured” account by Ms. Dempsey of the plaintiff’s conduct which “grossly and unfairly damnified the plaintiff”. Of this Irvine J. said at paragraph 74:
“Once again, I regret to say I am not satisfied that this inference, can objectively be sustained by reference to the evidence. First, there was Mr. Lynch’s unchallenged evidence that Ms. Dempsey favoured the imposition of a grade 2 or grade 3 warning and was against a more severe sanction. Secondly, even when it could be stated with absolute certainty that the board was fully aware of the plaintiff’s case, namely that other SNAs locked the door and that she had not been instructed not to do this, it was unwilling to withdraw the sanction which it had considered appropriate to impose. Thirdly, it was never suggested to Mr. Lynch, the chairman of the board, in the course of cross-examination that Ms. Dempsey had presented the case to the board in the manner so found by the trial judge.”
16 Irvine J. was also not prepared to accept the inference that no proper consideration was given to the facts of the plaintiff’s case before the Board rejected her appeal. At paragraph 82-84 of her judgment she said:
“82. As to the inference drawn by the trial judge that no proper consideration was given to the facts of the plaintiff’s case before the board rejected her appeal, I have to say that this is an inference about which I have grave reservations particularly in circumstances where Mr. Lynch, the chairman of the board, was never challenged on the matter.
83. Leaving that fact aside, I ask myself what could be the matters to which the trial judge considered the board did not give consideration? It had received in writing the case made by IMPACT in its letter of the 29th January, 2010. That letter referred to the fact that Ms. Ruffley was making the case that it had not been made clear to her that it was a health and safety breach to lock the sensory room door and that the practice had not previously been objected to. The board also had the second letter from IMPACT enclosing the result of Ms. Ruffley’s questionnaire of the 22nd April, 2010, to demonstrate that other SNAs had also engaged in the same practice. It also had the details of the submissions made by Mr. Mullen on Ms. Ruffley’s behalf at the meeting set up following the receipt of the appeal.
84. It seems to me that the trial judge’s inference that the plaintiff's case was not properly considered can only be ascribed to his subjective view that such was the strength of the plaintiff’s case that the board would have reversed its decision if it had properly applied its mind to the full facts.
17 The conclusion to which Irvine J. came was set out at paragraphs 94 and 95 of her judgment:
“94. All of these factors afforded the plaintiff substantial grounds upon which she might have instituted plenary proceedings seeking a declaration as to the invalidity of both the original decision of the board and the decision which it made on the appeal. For whatever reason, she chose to eschew such an approach in favour of an action for damages for breach of duty on the part of her employer in respect of bullying in the workplace.
95. However, the fact that the board may have conducted the investigative and disciplinary process in the hopelessly flawed manner last described does not bring its conduct anywhere close to meeting the definition of bullying as set out in Quigley. On the facts of this particular case, objectively ascertained, the defendant could not be considered guilty of the type of repetitive inappropriate conduct which undermined the plaintiff's right to dignity in the workplace for a period of over a year as was found by the trial judge.”
18 Finlay Geoghegan J. dissented. Her judgment is particularly relied on by the appellant in this appeal. She observed that while the claim was often referred to colloquially as a claim for bullying, it had been said that there was no separate tort of bullying or harassment. See: Kelly v. Bon Secours Heath System Limited [2012] IEHC 21, and Nyhan v. Commissioner of An Garda Síochána & anor [2012] IEHC 229. The claim was a species of a claim for breach of the general duty owed by an employer to an employee. She considered that the necessary “proofs on the part of the plaintiff may differ” depending on whether the alleged perpetrator was a fellow employee or whether the conduct alleged to constitute bullying was carried out by the employer or management. She cited with approval an extract from a leading work, McMahon & Binchy, Law of Torts, 4th Ed., (Dublin: Bloomsbury, 2013), at para. 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.”
19 In a careful judgment, the learned judge addressed this definition. She concluded that “repeated” behaviour was to be contrasted with the “isolated incident” or the “once-off” incident also referred to in the code of practice. While the consideration of what behaviour would constitute “repeated” for the purposes of the test “must depend on an assessment of all the facts”, a disciplinary process which continued over a number of months with several interactions between the plaintiff, the principal, and the chairman, could not “be considered to be either an isolated incident or a once-off incident.” (para 20).
20 Finlay Geoghegan J. also considered that it was also difficult and probably dangerous to try and define at a level of principle what would be the threshold for “inappropriate” behaviour. In a workplace context that had to depend on the relationship and relative positions of the individual and the “full factual context”. She was satisfied however that the behaviour here was indeed inappropriate.
21 Finally, Finlay Geoghegan J. addressed the question of conduct undermining the right to dignity at work. In this case she found that satisfied by the breach of fair procedures in this case:
“Where as on the facts of this case the Court is considering the right of the plaintiff as [an] 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 [a] disciplinary process.” (para.22)
22 At paragraph 43 of her judgment, Finlay Geoghegan J. made it clear that she was not relying on the inferences drawn by the trial judge at paragraph 48 which had been challenged by the defendant. However, she considered that the remaining evidence justified a finding of bullying, and accordingly upheld the award of damages subject only to the deduction of the award in future loss of earnings.
Supreme Court
23 In its determination [2016] I.E.S.C.DET. 52, the Supreme Court granted the appellant leave to appeal on two questions:
During the hearing of the appeal, it became apparent that to address only these issues might not result in a complete resolution of the case, since even if both questions were answered positively that would not necessarily lead to the overturning of the decision of the Court of Appeal. Accordingly the Court invited the parties to address the question more comprehensively and to consider if the finding of bullying by the High Court was sustainable, because if that were the case, it would follow that the decision of the Court of Appeal should be reversed. However, this meant that the Court did not perhaps have the range of materials and depth of submissions as might have been provided if the broader issue had been addressed from the outset, and so my conclusions as to the law must be subject to some qualification and the possibility of refinement in future cases.
24 It should be noted that prior to the granting of leave in this case, there had already been some brief discussion in this Court about what constitutes bullying in the workplace in Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 IR 349. In that case the plaintiff had worked in a business for 21 years and had become the 4th most senior employee. The business changed hands on a number of occasions before being acquired by the defendant, and later closed down. Evidence was given by the plaintiff and others of the “terrible domineering demeanour” of the new plant manager towards the plaintiff. A shop steward described “the animosity of the plant manager” towards the plaintiff. Other evidence was given of humiliating behaviour by the plant manager and the new managing director when discussing a voluntary redundancy package, and of humiliating and demeaning references to the plaintiff being made to other employees about the plaintiff. The manager often stood on a box only eight feet behind the plaintiff’s work station “with the effect of intimidating the plaintiff”. Other remarks were made suggesting the plaintiff was not capable of performing even basic functions, and needed “some broom training”. Neither the plant manager nor the former managing director were called in evidence so the detailed evidence of victimisation was not challenged.
At page 371, Fennelly J. accepted counsel for the defendant’s submission that:
Fennelly J. elaborated further on the issue of bullying in the context of causation, observing at page 372 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 employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.
25 The trial judge in this case referred to the above dicta of Fennelly J. in Quigley. Although Fennelly J. recognised the “comparative novelty of the cause of action” in Quigley, he observed that the Court “[had] not been asked to decide any principles of law” because “the parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.” (pp. 368-369). In any event, the appeal was allowed on a question of causation. It is the case that Fennelly J. stated that the conduct there amply met the criteria of being repeated, inappropriate and undermining of the dignity of the plaintiff at work. It will be useful to compare the facts of Quigley to the current proceedings, but it remains the case that this case presents the first opportunity for the Supreme Court to give extended consideration to the law of bullying in the workplace.
Discussion
26 This case raises a number of issues. First, as counsel for the appellant observed at the outset of the appeal, the case may appear to be a storm in a teacup. The core issue whether a door should have been locked, or perhaps more precisely what the school (principal, chairperson and Board) should have done once it became aware of the fact and that Ms. Ruffley was contending that this was a common practice, seems a relatively minor and routine matter that ought to have been capable of being addressed in a small school where personal relationships were important and where the plaintiff had worked for 10 years. Hindsight is easy, but it is difficult to think that it would not have been better for all sides if this had been sorted out with more sensitivity and goodwill at any of the number of points on which it may have been possible to resolve it without litigation, and perhaps most obviously when the plaintiff’s union became involved. That would have avoided the stress and considerable expense of a High Court action extending over 11 days trawling through the minutiae of personal relationships.
27 I think it is clear that the case is not one that fits squarely into the core understanding of bullying at work. Although questions of unfair dismissal and bullying can overlap (such as in Quigley and Eastwood v. Magnox Electric [2004] UKHL 35 referred to therein), I am not aware of any case which presents the issue raised in this case of unfair procedures being alleged, without more, to constitute bullying or where a bullying claim relied on similar matters. Although there is an oblique reference at paragraph 61 of the High Court judgment that the behaviour of the principal was hard to understand without an element of bad faith, it is not alleged or found that there was any individual personal animosity traceable to any incident or event. The behaviour was considered to be ‘strange’, ‘odd’ and ‘difficult to understand’ but not malicious. Indeed the Board was unaware of the identity of the plaintiff when they made the initial decision, so there can be no inference of personal animus on the part of the other Board members. Yet they were the members pressing for the most severe sanction. With the exception of the incident on the 27th January, 2010, when the plaintiff was reduced to tears, and to which the High Court judge does not appear to have attributed critical significance, there is no suggestion of personally offensive behaviour. It is not suggested that there was ridicule, personal antagonism, or exclusion from a group. Nor was there shouting in public, or the making of disparaging remarks in public or private about work, appearance, gender or sexuality, status or racial origin. There is no allegation of intimidation or the circulation of damaging gossip, or the use of aggressive and obscene language or repeated requests to do tasks which were either menial or impossible to perform in the time required. Here the complaint relates to unfair procedures in a disciplinary process including what was alleged to be the unfair singling out of the plaintiff for punishment for conduct which others had admitted to, and which the trial judge considered a common practice and perhaps in any event, not unduly serious. This is not to say that such matters cannot constitute bullying, but rather that it compounds the difficulty of this case, that it involves conduct which on any view is at the margins of conduct alleged to be bullying.
28 It is apparent that the plaintiff is a sensitive person. There is no suggestion however that the employer here was aware of the earlier episodes of depression, or that the case should be approached in that light i.e. that the school should have known plaintiff had a predisposition to such matters. It is also disturbing that the remedy (in this case protracted litigation) if not worse, then certainly resembles the wrong in its impact on the individual concerned. It is apparent that by the time the case came on in the High Court, that the plaintiff’s experience of stress, anxiety and depression were bound up with the stress necessarily involved in court proceedings so that the judge considered that the symptoms recounted on examination were attributable to the litigation as much as the original complaints about the school. Furthermore, the trial judge was confident once the case was resolved, it would be possible for her to return to work within six months even though she had at that point been absent for almost four years. It may be said that this is an unavoidable consequence of any claim that goes to court, but it is certainly the case that court proceedings, with all the pressures involved, are a less than ideal method of dealing with complaints of workplace stress. It should also be recognised that such cases impose their own stresses on other people involved because necessarily their own characters and reputation will come under scrutiny in a more personal way than in an ordinary personal injuries claim.
29 A further feature which is not unconnected to the stresses involved are the considerable costs involved of a hearing of this nature which has now extended over 14 days in three courts. If the High Court judgment is upheld then the award of damages and costs and the defendant’s own costs, will on any view be very substantial indeed. On the other hand, if the Court of Appeal decision is upheld, and if it followed that costs were awarded against the plaintiff, then that could easily be ruinous for her. Even if only required to bear her own costs, and her lawyers, as lawyers acting for individuals in unsuccessful cases often do, were willing to reduce their fees, the financial impact would still be very substantial indeed.
30 In my view, these features of the case mean that this case, difficult in itself as a factual controversy, must be looked at more broadly. At some level this novel case will set a benchmark for all bullying claims. The purpose of the law of tort, and in particular the identification of new claims or areas of liability, is not merely to adjust matters fairly between the individual parties (difficult though as that may be in a particular case) but by doing so to enable other cases to be settled without proceeding to a hearing, and many more to be avoided entirely. As Dean Calabresi memorably observed that if a person is held liable for the damage and loss they caused to others, this person will eventually refrain from carrying out the harmful activity— Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts” (1961) 70 Yale Law Journal 499. One justification therefore for the law of torts and the stresses and costs it entails, is that it provides a potent incentive to alter general behaviour. It is necessary therefore to have regard to the impact well beyond this case, of any finding or rejection of liability.
31 Normally in such circumstances it will become particularly important to pay close attention to the facts of the case. However, this case illustrates two truths which may not be immediately apparent to the law student encountering the common law through the medium of reported decisions. First, cases do not come pre-packaged under the headings in the text books. It is not simply a case of concluding which side has acted well, and who has been injured and who should pay. It is an important issue to consider how the case should be analysed as a matter of law. Here for example, as Irvine J. observed, there is little doubt that the disciplinary process engaged in by the school here was flawed, and that a court if asked to do so would have declared the disciplinary sanction invalid. It is not necessary to speculate on the range or type of proceedings or the extent of remedies involved. However, it does not follow from the fact that the plaintiff was wronged by the defendant in some sense, that therefore the plaintiff should recover in excess of €200,000 damages. That is so, even if it is accepted that the plaintiff’s depression, anxiety and stress were caused in whole or in part by the treatment she received. To take just one obvious example, in the field of administrative law where judicial review on the grounds of fair procedures is common place, invalid administrative action does not given rise itself to a claim for damages.
32 It is also important to keep in mind the role of fair procedures in this case. They clearly loom large in the High Court judge’s assessment of the case, and were relied on to a significant extent in the dissenting judgment of Finlay Geoghegan J. in the Court of Appeal. However, it is not necessary to establish a breach of fair procedures to succeed in a bullying claim, and conversely, the presence of unfair procedures does not establish bullying. Bullying often involves a question as to how something was done rather than what was done. In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual. It is important therefore not to blur the distinction between these two different claims by assuming that there is any logical connection between a breach of procedures, and a claim of bullying entitling a party to substantial damages.
33 Furthermore, when appellate courts refer to the facts, and when the facts of a case, if reported, are presented in a compressed format in a headnote, it is easy to think that these are fixed and immutable points. On this approach, fact-finding may be difficult, but once found, facts are hard-edged and clear. But this case illustrates something the fact-sceptic branch of legal realism identified some time ago: facts are more malleable and the line between fact, inference, supposition and speculation are more blurred than the confident finding of fact and pinning down of conclusions in a judgment might suggest. It seems clear that the two judges who would have upheld the plaintiff’s claim in this case, viewed, and more importantly characterised, the events in this case, quite differently from the two judges in the Court of Appeal who rejected the plaintiff’s claim. One side sees the plaintiff as unfairly subjected to a disciplinary process which itself was unfair. The sanction produced was so severe and a refusal to reduce it so incomprehensible that the whole process can only be explicable as bullying. On the other hand, the majority of the Court of Appeal viewed the evidence as portraying a bungled, perhaps seriously bungled, disciplinary process but carried out in relation to an incident the school was entitled to consider serious, and by people including the Board, whose integrity there was no reason to impugn.
34 This difference of approach makes it difficult to review the facts, and indeed to apply the traditional tools of appellate review. In this case, much of the findings of the trial judge are bound up in and difficult to distinguish from inferences he drew. It is very clear that the trial judge took a very strong view of the facts in favour of the plaintiff, and against the defendant.
35 In fact little if anything turns on this appeal on the finding of contested primary facts in this case which is the area in which an appellate court will most readily defer to the trial court. It appears to me that there are perhaps only three areas in which there were contested issues of fact resolved by the trial judge: two in favour of the plaintiff, and one in favour of the defendant, but that none of these conclusions appear to have had a significant impact on the outcome of the case. The trial judge accepted the plaintiff’s evidence that Ms. Dempsey had not handed to her a letter dated the 18th September, 2009, at the meeting on that date, or indeed at all. In another case this might be significant. However the terms of the letter are not themselves particularly important to the resolution of this case. Of course, if the trial judge had found that the letter had been deliberately fabricated after the event, to in some way cover or bolster the defendant’s position, that might be significant, and indeed have an impact on the assessment of the credibility of witnesses if that had been an issue. However, no such finding was made, and the case is not dependent on the credibility of witnesses. Instead it is largely dependent on the assessment of facts which themselves not in contest. In fairness to all parties, I should also observe that there was a degree of confusion on both sides as to the exchange of correspondence and the sequence of events.
36 The second issue is when the plaintiff and Ms. Dempsey met to consider the teacher’s review of the plaintiff conducted by Ms. Bramhall and recorded on an SNA staff assessment form. The plaintiff described the events as occurring at a meeting on the 12th November, 2009, but the judge was satisfied that the meeting occurred on the 19th October, 2009. Again, in other circumstances this might be significant, but nothing appears to turn on it at least for the purposes of the trial judge’s conclusions. Finally, there was a total conflict of evidence between the plaintiff and Ms. Dempsey as to what occurred at a meeting on the 27th January, 2010. In that regard the trial judge accepted the plaintiff’s evidence that she was subjected to a “considerable variety of denigration which belittled, humiliated and reduced her to tears”. It would certainly be helpful for the purposes of appellate review if in addition to the conclusion of denigration, belittling, and humiliation, the specific matters alleged to have been said were set out, but this is clearly a matter in respect of which the judge was entitled to make a finding as between the conflicting accounts. However while denigration, belittling, humiliation and reducing a person to tears even in a private meeting, is clearly potentially relevant to any claim of bullying, it does not appear to have loomed large in the trial judge’s conclusion because before recounting his findings in respect of that meeting, the trial judge had in the immediately preceding paragraph already concluded 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. Nevertheless, I accept that the finding at paragraph 64 in favour of the plaintiff in respect of the meeting of the 27th January, 2010, is something within the province of the trial judge: there was conflicting evidence and he accepted entirely one version. I also accept for the purposes of this judgment that such a finding of conduct, even occurring at a private meeting between only two individuals is capable of constituting conduct which is inappropriate, and capable of undermining the plaintiff’s dignity at work, and therefore if repeated, capable of constituting bullying. To that extent this is a finding of primary fact, and therefore important, although not central to the conclusion of the trial judge.
37 I accept this finding with some reluctance however, because cogent criticisms have been directed towards the analysis of the facts in the High Court and in particular the finding at paragraph 48 of the judgment that at the meeting of the 23rd November, 2009, Ms. Dempsey outlined the history of the matter to the Board, which was “almost certainly untrue, highly biased, coloured, and grossly and unfairly damnified the plaintiff”. As already noted, Ms. Justice Finlay Geoghegan who otherwise upheld the conclusions of the High Court judge, did not rely on the finding at paragraph 48 because it was challenged by the defendant. It is necessary to explain in a little more detail why that is so, and why in my view Ms. Justice Finlay Geoghegan was certainly correct, at a minimum, to avoid relying on that finding.
38 This finding cannot really be characterised as an inference, but rather as speculation alleged to follow ineluctably from certain facts. The finding here is alleged to follow from the fact that a group of reasonable people could not possibly have come to the “downright intemperate” conclusion which they did, namely if not a recommendation for the decision to dismiss the plaintiff then at least the issuance of a Final Stage part four warning, unless the account they had been given was almost certainly untrue, highly biased, coloured, and grossly and unfairly damnifying of the plaintiff. There are however a number of difficulties with this conclusion. First, the only evidence given of the events at the meeting of the 23rd November, 2009, was that given by Ms. Dempsey and Mr. Lynch. Neither gave any evidence that would allow the judge to conclude that what Ms. Dempsey said to the Board was untrue and highly biased. This is a conclusion derived entirely therefore from the judge’s view of what he describes as the extreme reaction of the Board. This conclusion is dubious as a matter of logic, (there could be other reasons, whether good or bad for the Board’s reaction other than an unfair account by Ms Dempsey, such as that, rightly or wrongly, they took a more serious view of the matter than the judge did) but, as the majority of the Court of Appeal pointed out, it is in any event difficult to square with other uncontested facts: first, that Ms. Dempsey and Mr. Lynch did not encourage the Board in its conclusion, but sought a lesser sanction and sought to dissuade the Board from recommending dismissal; second, that the plaintiff was not identified by name and there could be therefore no question of any personal animus at least on the part of the other members of the Board; and finally, that when the Board was apprised of the case being made on behalf of Ms. Ruffley, namely that the sanction was too severe in and of itself, and in the circumstances where other SNAs had engaged in the practice, the Board nevertheless reaffirmed its decision. But there is perhaps an even more fundamental objection, which must have particular weight in a case such as this concerned at its heart with fair procedures: this assertion was not put to either Ms. Dempsey or Mr. Lynch in cross-examination on behalf of the plaintiff or indeed by the judge, even though the conclusion arrived at in the judgment, of an untruthful, biased, and grossly unfair account, is one necessarily damaging to Ms. Dempsey’s reputation, and also and inescapably meant that Mr. Lynch’s account of the meeting must have been, at a minimum, both partial and inaccurate in a very material respect.
39 I cannot accept therefore the finding at paragraph 48 as a finding of fact. Furthermore, I consider that an erroneous conclusion arrived at by an experienced trial judge who had so clearly and obviously engaged carefully with the facts of this case, is its own warning against any over simplification of the facts in this case. It is apparent however, that Ms. Justice Finlay Geoghegan in the Court of Appeal was able to uphold the trial judge’s finding without relying on the finding at paragraph 48. I have some reservations about this course because it is not clear to me that a court can apply the normal test of deference towards the findings and assessments of the trial judge if it has concluded that in some important and material respect findings have been made which cannot be supported. This must apply particularly in a case such as this which is dependent upon there being a number of incidents and a pattern of behaviour which can satisfy the legal requirement of repeated inappropriate behaviour undermining dignity at work. If one or more incidents relied on by the trial judge is properly rejected by an appellate court, can the overall conclusion of the trial court that there had been repeated conduct sufficient to establish bullying, be one to which the appellate court must continue to defer? It is apparent, that something similar occurred in relation to the inference drawn by the trial judge at paragraph 75 that he was satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff. As is pointed out by Irvine J., this was not put to Mr. Lynch in cross-examination either. I am not convinced therefore that it is appropriate to merely subtract these findings and then consider whether the balance of matters can justify a finding of liability when we do not and cannot know if the trial judge would himself or herself have so considered. However, given the importance of this case both to the individuals, and more widely, I think it is desirable to proceed to consider the other issues in the appeal on the assumption that it is possible to excise paragraph 48, and consider if the remaining matters can support a finding of bullying.
40 I regret to say, that it appears to me also that despite the welter of evidence of the day-to-day interactions, and the communications and correspondence between the parties, there is nevertheless an absence of evidence on an issue which I consider to be important, if not central. An important component of the High Court finding of bullying was that the original incident - the locking of the sensory room door - was a relatively trivial matter which ought to have been resolved simply, and did not itself merit being brought to the board. In this regard the trial judge takes a contrary view to the principal, Ms. Dempsey, and the chairman, Mr. Lynch, who both considered it should be brought to the Board’s attention, and by definition, the other members of the Board who treated the matter so seriously. This accordingly involves the trial judge substituting his judgment for that of the decision-makers. It is rare for courts to do this, when asked to review the decision of a decision-maker, otherwise than by way of direct appeal. The guarantee of fair procedures is based on the theory that if fair procedures are followed, a fair result will ensue, but there is inevitably a range of decisions which a reasonable decision-maker may take even if a judge on the same material would not make the same decision. A court exercising judicial review is not a court of appeal on the merits. A similar test is applied when reviewing the fairness of dismissals from employment. If procedural fairness is to be a component of the tort claim, a similar approach should apply.
41 Here it is very clear that the trial judge considered that the decision of the Board was not only reached after an unfair and flawed procedure, but was a decision which was wrong in the sense that it was a decision that he himself would not have come to. It may be inferred that he would also have considered that it was a decision to which no reasonable Board could properly have come. But that is a conclusion on an issue which, at a minimum, would have been greatly assisted by evidence from experienced care professionals as to whether the practice of locking the door from the inside was a breach of proper procedures and perhaps critically, if it was, how serious a matter it was.
42 The manner in which the High Court dealt with the first component of this issue is worthy of some note. Initially the judgment simply records the plaintiff’s surprise at being reprimanded because it was said no instruction had been given either to lock or not lock the room. These and further references seem to suggest that the appropriateness of the conduct was a matter of some reasonable debate. However, at paragraph 42 the trial judge accepted, readily, that it was reasonable of the defendant both for health and safety reasons and more probably for reasons of child protection to insist on a prohibition of locking the door. Later, “with the benefit of due consideration and hindsight”, it was acknowledged that it “could easily be said that the necessity of observing child protection standards meant, unequivocally, that … this door should never be locked”. Later again however it is stated that the locking of the door was something “the defendants were entitled to regard as unacceptable”. Given the importance of this issue, it could have benefitted from independent evidence which might have established the seriousness or appropriateness of the conduct, beyond dispute. There seems little doubt however, that the locking of the door in this way was not acceptable conduct. Indeed, that is precisely what the Mr. Mullen plaintiff’s union representative acknowledged when he argued merely that the punishment was too severe. If there is any doubt it is worth considering for a moment what analysis might have been offered in court if in an individual case a child had sought to leave the room and had become agitated and distressed or suffered an injury because of the fact that the door was locked. Again, it is worth considering what the position would be if it had been alleged that a child had been abused in some way while restrained in the room. It is easy in either case to imagine that the practice of locking of the door would have been the subject of very severe criticism, and the fact that it was not in accordance with KARE practice would have been emphasised, and the absence of a specific prohibition in a code of conduct treated as irrelevant.
43 The judgment ultimately does seem to proceed on the basis that the practice was unacceptable, although in my view it would have been desirable that such a conclusion had the support of independent evidence. However there was no evidence whatsoever on what is perhaps a critical question at the heart of much of the division of opinion in this case: how serious a default was this as a matter of best practice? That question was central to this case because the trial judge found that the disciplinary process should not have taken place at all (para. 62) and that the Board’s response in treating the issue as serious was “extreme, if not, downright intemperate”. (para.48). At a minimum, these conclusions would have been more soundly grounded if there had been evidence as to the seriousness with which such an incident should or could be viewed by a reasonable employer of SNAs caring for children with intellectual disabilities. On the other hand, if there was evidence in addition to that offered by Mr. Lynch, that the practice was regarded as a serious default which should have been known by any conscientious SNA, then the case could be viewed in a very different light.
44 I accept that a specific component of the trial judge’s conclusion that the process should not have taken place was his view that there was a common practice among SNAs of locking the door and that accordingly the plaintiff had been “singled out” for punishment unfairly. Again the evidence however is less than clear-cut. There were 26 SNAs employed in the school. (para. 5). The plaintiff devised a rudimentary questionnaire containing two questions the first of which was “Have you ever locked the sensory room door?”. The questionnaire was answered by only four SNAs who all answered, yes. The evidence of the plaintiff and the SNAs who gave evidence was to the effect that more SNAs would have answered affirmatively if they had been able to do so anonymously. Later in the judgment this limited evidence becomes a finding that “there was a common practice of doing this” (para. 62), and indeed that the Board was “aware that several other SNAs also occasionally locked the Sensory Room door” (para. 87). At paragraph 41, there is a finding that “there was a general practice among many of the SNAs, probably a majority, of locking the Sensory Room door” (my emphasis in each case). Again, in my view, the evidence recounted in the judgment is a less than secure basis for the conclusion that there was a general practice among the majority of SNAs of locking the sensory room door, even though that was fundamental to the finding that the process “should not have been commenced”, and that the plaintiff was “singled out”. Even on the plaintiff’s case this was not the type of clear-cut singling out or targeting for a punishment that is sometimes discussed in an employment context, and which can give rise to a finding of unfair dismissal. A classic case is where it is known as a matter of fact, that a certain practice is widespread, but in that knowledge, only one person is selected for punishment, in circumstances which give rise to the reasonable inference that the objective is not to put an end to conduct, but to victimise the individual. In the field of unfair dismissal, consistency in applying procedures may be a component of unfairness. If an employer has previously tended to interpret a disciplinary rule lightly, a sudden decision to dismiss employees for breaking the rule may be unfair. (See: Redmond, Dismissal Law In Ireland (Dublin: Butterworth, 1999), para 13.40). Here however, even on the plaintiff’s case, it is not suggested that Ms. Dempsey, still less the Board, was aware when the disciplinary process was initiated, of the general practice found by the trial judge based on the limited evidence set out above, and therefore, at least in its initiation, the disciplinary process cannot be treated as a singling out of the plaintiff. What happened was something rather more complex: the plaintiff having been found to have been engaging in a practice which it appears to have been accepted even if grudgingly, was inappropriate and unacceptable, and when informed that the matter was being treated as a disciplinary matter, raised the contention that other (unspecified) people had done this on other occasions (also unspecified). The trial judge found that this allegation should have been investigated and that of course goes to the fairness of the procedures followed, but, as Irvine J. suggested in the Court of Appeal, it is certainly a less clear-cut example of being singled out for punishment. Once again it may ground a finding of imperfect and flawed procedures, but it falls short in my view of the type of conduct captured by a bullying claim.
45 One further observation is necessary. One issue left unresolved by the decision of the High Court is any plausible explanation for the conduct criticised. Most cases of workplace bullying involve bullying by an individual, or a group excluding and victimising a person, and which in either case the employer fails to prevent or remedy. There may also be so called ʻcorporate bullying’ involving a superior, or indeed management more generally in the treatment of the individual. Where more than one person is involved as where the individual is ostracised, or subjected to ridicule, it will usually involve some obvious concerted action. However, here, it is not clear what is being alleged or indeed found in this regard. It is not for example alleged merely that Ms. Dempsey bullied the plaintiff, and the school failed to prevent or remedy it. It is clear that Mr. Lynch is also criticised and found culpable although it is not suggested he was involved from the outset. Nor is it suggested that the remaining members of the Board were misled by Ms. Dempsey, alone or together with Mr. Lynch, but instead it appears the members of the Board were criticised as somehow being participants themselves in the bullying. It seems, although it is not clear, that the teacher Ms. Bramhall, may also have been considered a party to the bullying insomuch as she was not prepared to allow Ms. Ruffley correct the weekly forms.
46 If this case was merely about unfair procedures, then the fact that there were a number of disparate actors would not pose a difficulty, and indeed and at some level might enhance the claim: the school would be responsible for the procedures followed, and the cumulative impact of them, and any lack of cohesion and organisation might only give weight to the plaintiff’s case. However, it is I think rather different where it is alleged that reprehensible conduct at a personal level such as bullying is involved. It is not clear if the individuals (Ms. Dempsey, Mr. Lynch, Ms. Bramhall, and the other 4 members of the Board) are alleged to have separately engaged in bullying, or in some form of collective action, or that there was some hidden arrangement or agreement between them arising perhaps out of some pre-existing animus. The absence of any explanation why these different people became parties to a pattern of what was considered to be wholly inappropriate behaviour undermining the dignity of the plaintiff as a person, makes it difficult to defer too readily to the conclusions of the trial judge. Accordingly, I think it is difficult to address this merely at the level of the facts found and inferences drawn, although there is considerable force in my view, in the analysis of those findings in the judgments of the majority in the Court of Appeal. This appeal can be best approached and resolved on a question of law: do the facts found, or not in contest in the High Court, amount to bullying at law?
47 In this regard the trial judge’s approach was to record the facts as found by him, and his strong view of them, and then conclude that this amounted to bullying, without any extended consideration of the law. Thus at paragraph 63, he determined that the treatment of the plaintiff was “inappropriate”. Later at paragraph 88, having stated that the Board persisted in its unfair and inappropriate treatment of the plaintiff, he concluded:
“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.”
48 On this approach the only analysis of the question of undermining of dignity at work, is that it is treated as a necessary consequence of the finding of any inappropriate conduct which was itself persistent. While I recognise that this is a developing area of law, and the facts and evidence in this case were perhaps unusually difficult, I do not think it is sufficient to resolve the legal issue in this way. The requirement of undermining of dignity is an important part of the definition. The matter is dealt with in greater detail in the analysis of the dissenting judgment in the Court of Appeal of Finlay Geoghegan J. and it will be necessary to turn to that in due course. Before doing so, it will I hope be useful to look at the question of liability for bullying in a somewhat broader perspective.
A detour: is there a separate tort of bullying or harassment?
49 While it does not arise directly on this appeal, I consider that the statement of law, accepted without question in this case, that no separate tort of bullying is or can exist, that bullying is in a sense a subspecies only of an employer’s duty of care, but that there can be nevertheless a concept of ‘corporate bullying’ for which the employer is directly responsible, more than a little puzzling and worthy of some consideration. I discuss these matters however, not to raise further uncertainties as to the law, but rather because these matters and the questions they raise cast a helpful light, in my view, on the issues to be determined in this case.
50 There is no doubt that in addition to specific duties imposed by statute, an employer owes extensive duties of care to an employee at common law. Those duties include the duty to provide a safe place of work, a safe system of work, to ensure fellow employees are competent, and that equipment used in the workplace is safe. That duty can clearly extend beyond the direct actions of the employer, and to the actions of other individuals which are or ought to be foreseeable, including the actions of other employees, or indeed third parties. Thus for example, employers have been held responsible for a failure to foresee and take steps to prevent criminal assaults suffered by an employee: Walsh v. Securicor Ireland Ltd [1993] 2 I.R. 507. Another example might be the employee horseplay cases. If the employer knows or ought to have known of the practice, and did not take effective steps to prevent or stop such practices, then an employer may be liable to the injured employee. In addition, an employer may also be vicariously liable for the acts of an employee and without proof of fault in the employer’s part if the actions of the other employee are so closely connected with the employment as to justify the imposition of vicarious liability. But in either case, at least in theory, the fellow employee is also a tortfeasor, either negligent in respect of the safety of another, or in some cases the perpetrator of a deliberate wrong in the nature of an assault for which the employer is vicariously liable. It is not necessary here to discuss the mechanism by which the law as devised to avoid perhaps the full logical consequences of this so that an employer, cannot normally seek contribution and indemnity for the acts of an employee tortfeasor, but the theory that the co-employee is guilty of a tort remains an important component of the basis upon which liability, vicarious liability or in negligence, is imposed upon an employer. It is I think difficult to conceive of circumstances under which an employer may be held liable for the conduct of another person where that person’s conduct is not in itself, at least in theory, itself a tort.
51 However, if bullying conduct is not itself wrongful (or at least actionable), and is only a subspecies of the employer’s duty of care to an employee, certain surprising consequences follow. First, it would mean that actions for bullying could only occur in the employment context. Yet it is plain that there are other areas in which bullying can be encountered. Second, if we take for this purpose a clear-cut example of an extreme case of individual vindictive bullying by one person of another, and where one employee cruelly and mercilessly torments another, with perhaps serious psychiatric consequences for the victim— the bully would nevertheless have no liability to the victim even if the bully was also sufficiently wealthy to pay compensation, and even if, on this hypothesis, the employer was not. Furthermore, under this scenario an employer could escape liability by demonstrating that it had taken all reasonable steps to prevent the bullying. In such a case, a victim of concealed bullying would have no remedy even if the bullying was closely connected to the employment and even if in similar circumstances an employer would be vicariously liable for physical rather than psychiatric injury caused to a victim. Finally, there is a difficulty in reconciling the contention that bullying is only actionable as a subclass of the employer’s duty of care with the statement that the employer can nevertheless be liable for something labelled as ‘corporate bullying’. In such circumstances, it appears that an employer (who can be a single individual) may be made liable for conduct which is voluntary, deliberate and direct. This is not negligence or a breach of a duty of care, any more than deliberate assault is a breach of some separate duty of care. It is instead a separate intentional tort. It appears rather anomalous therefore that an employer can be liable for direct and deliberate conduct, in this case bullying, when in any other circumstance a bully is not.
52 It is clear therefore, that the law as stated in this developing field is somewhat anomalous. This is not by any means a fatal objection however, as it is now well recognised, that the lifeblood of the law has not been logic but rather felt experience. The fact that the law has not pursued the logic of a proposition to a remorseless conclusion may often be an indicator, not of lack of principle, but rather of some important felt constraint upon more widespread liability. Disturbances in the pattern of the common law are often instructive instances, meriting investigation rather than merely anomalies to be removed.
53 It seems likely that these developments in the law in Ireland reflect forces and considerations which may be detected in developments in the jurisprudence of other common law countries. It is useful therefore at this point to briefly survey some relevant developments in other jurisdictions which may cast a light upon the issues to be decided in this case.
International Comparisons
54 The question of liability for intentional or negligent infliction of mental distress has been a difficult topic for the law of torts since at least the decision in Wilkinson v. Downton [1897] 2 QB 57. By the 1990s some consideration had been given to the development of a separate tort of harassment in cases such as Khorasandijan v. Bush [1993] QB 727. In the United Kingdom those developments were overtaken by statute, and the enactment of the Protection from Harassment Act 1997, which created both criminal and civil liability for harassment. Subsequently, it was confirmed that there was no scope for the further development of the common law. The statute itself did not define harassment but it included “causing the person distress”. It has been held that the conduct “must be grave” and that in any event “in life one has to put up with a certain amount of annoyance: things have got to be fairly severe, before the law, civil or criminal, will intervene”: Ferguson v. British Gas Trading Ltd [2009] EWCA Civ 46. Later again, Lord Hoffman observed in Wainwright v. Home Office [2004] A.C. 406 at p.426:
“In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure the right way to deal with it is always by litigation”.
In Dowson v. Chief Constable of Northumbria [2010] EWHC 2612 (QB), Simon J. offered a summary of the necessary features of a claim under the legislation:
“(1) There must be conduct which occurs on at least two occasions,
(2) which is targeted at the claimant,
(3) which is calculated in an objective sense to cause alarm or distress, and
(4) which is objectively judged to be oppressive and unacceptable.
(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.”
55 In Sutherland v. Hatton [2002] 2 All ER 1, which concerned the field of workplace stress claims, Hale L.J. (as she then was) offered a further detailed list of factors to be considered before any claim for damages for workplace stress. This is undoubtedly an aspect of the employer’s duty of care to an employee. Such workplace stress encompasses bullying, but clearly includes other factors. These matters are helpfully considered in Cox, Corbett and Ryan, Employment Law in Ireland, Chapter 16, “Legal Obligations for the Employer in Respect of Workplace Stress and Bullying” (Dublin: Clarus Press, 2009), pp. 565-615. In Sutherland v. Hatton at pages 19-20, Hale L.J. set out 16 propositions which can I think be understood as permitting claims for stress or bullying, but also seeking to limit and control such claims. It is for example noteworthy that one principle was that identified at subparagraph 11 that an employer who offered a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
56 The law has developed differently in other common law jurisdictions. In the United States of America, the early development of the law in the early 20th century was influenced by the legal realists and their acceptance of contemporaneous developments in psychiatry. Accordingly, US law in a number of states was willing to accept the possibility at least of claims for intentional or negligent infliction of an emotional injury. Dean Prosser was a key influence in this development. The most striking thing for present purposes however, is that notwithstanding a willingness to contemplate recovery for emotional distress and psychiatric injury, the law still sought significant limiting devices such as Prosser’s concept of “extreme outrage”. Thus, Prosser and Keeton, Law of Torts 5th Ed., (St Paul, Minnesota: West Publishing Co: 1984) at pages 60-61, expressed the general principle in striking terms:
“In special situations of extreme misconduct recovery is allowed. . . So far as it is possible to generalise from the cases, the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause mental distress of a very serious kind. The requirements of the rule are rigorous, and difficult to satisfy.”
57 This approach is reflected in § 46 American Restatement of Torts (Second) (1977) which provides:
58 It is not necessary to engage in a further survey of these difficult issues and the development of the law of tort to which so much learning has been devoted in common law countries. It is sufficient for present purposes to observe, that in dealing with claims than an individual who claims to suffer a mental or psychiatric injury as a result of the wrongful act of another, the common law has proceeded cautiously. In those cases where recovery is permitted, the common law has sought to set a number of limiting devices, and in particular a requirement that the injury must be measurable and the conduct severe. It is not surprising that this should be so. Returning to the observations made at the outset of this judgment, litigation is extremely costly and demanding both in financial terms, and in the resources which must be applied to it. In addition to this there is the broader cost of claims which must be settled because a plausible claim can be made, and the further social cost that the possibility of such litigation will inevitability lead to the adjustment of behaviour as parties seek to avoid the risk of exposure to costly claims. Where this results in the improvement of workplace practice and behaviours, and the protection of individuals from intolerable behaviour, it is a proper and valuable function of the law of tort. If however, the test adopted leads schools or employers to avoid pressing disciplinary matters so as to avoid the risk of exposure to liability, then the cost is negative. Few people subjected to reprimand or discipline accept it stoically: it is human nature to be offended and indeed to experience a sense of injustice and resentment, all the more so if there is some justification. If bullying claims may be maintained in any such circumstance, and are not clearly and precisely defined, then prudent employers may opt to avoid the action which exposes them to the risk. This is not to say that bullying should be tolerated, or that victims should not be compensated nor indeed that employers should not adapt their behaviour to protect employees from bullying either direct or indirect. It does suggest however, that as Oliver Wendell Holmes observed quoting Plato’s Phaedrus, that when making a new rule, the law should seek “to carve nature at its joint”. In this case that means setting a test which achieves the objective of compensating the victim of a serious wrongdoing, deterring damaging behaviour, and encouraging prudent and sensible practices without encouraging a proliferation of claims more generally, and inhibiting workplace activity to an excessive degree.
59 Turning to the legal issue which arises in this case, it is I think significant that the claim relates to a disciplinary process, and circumstances which are not encompassed by the classic conceptions of workplace bullying. It is undoubtedly a case at the margins at best, and as a result may help define the limits of actionable claims. Here the Court of Appeal set itself the question “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 purpose of the definition?” With the addition that the conduct must also capable of undermining the person’s right to dignity at work is, I consider, the correct question as a matter of law.
60 I agree with Finlay Geoghegan J. in particular that this issue involves a careful focus on at least three terms used in the 2002 Order:
I also agree that each component can usefully be considered separately and sequentially. However I would caution against viewing these three matters as separate and self-standing issues as if in a statutory definition. To some extent these terms take their colour from each other and the concepts are incremental. It is, in my view, important for example to recognise that in considering the question of repeated conduct, it is necessary to remember that what is required to be repeated is inappropriate conduct undermining the individual’s dignity at work and not merely that the plaintiff be able to point to more than one incident of which he or she complains. Ultimately, while analysis may be facilitated by looking at the separate elements, it must be remembered that it is a single definition and a single test: was the defendant guilty of repeated inappropriate behaviour against the plaintiff which could reasonably be regarded as undermining the individual’s right to dignity at work?
61 I sympathise with the cautious approach which Finlay Geoghegan J. adopted and which led her to suggest that the consideration of whether conduct was both inappropriate and repeated must depend on the relationship and the relative decisions of the individuals and the “full factual context” (para.18), and on an “assessment of all the facts.” (para.20). Many difficult cases force courts to make qualifications such as this, but unless an appellate court can offer some more precise definition, it offers little guidance not merely to lower courts, but as importantly, to litigants and potential litigants. If everything depends upon the facts (and necessarily the view courts take of them), then it will not be possible to determine whether bullying has occurred in any case, until the final court of appeal has made its determination. It will also not be possible to advise plaintiffs whether or not to pursue claims, or defendants whether or not to defend them, with any confidence. As a result, the number of claims which will be advanced, and settled at some level, will necessarily proliferate. It is therefore necessary to look carefully at the concepts involved.
62 In my view, a telling feature of the definition used in the 2002 Order and adopted in the case law is the distinctive language used in the statutory definition. At each point the statutory drafter has chosen a term at a markedly elevated point in the register: conduct must be repeated, not merely consist of a number of incidents ; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.
63 In her judgment, Finlay Geoghegan J. contrasted the phrase “repeated” with the last sentence in the definition which required that the conduct be something other than an “isolated incident of the behaviour”. “[It] may be an affront to dignity at work, but, as a once-off incident, is not to be considered to be bullying.” The judge continued: “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””(para. 20). I agree that the concept of repeated behaviour can usefully be contrasted with an isolated or once-off incident, but I do not think it can be defined negatively, as merely something that is not ‘once-off’ or ‘isolated’. It is not enough to point to two different events. What must be repeated is inappropriate behaviour undermining the personal dignity of the individual. That is relevant in this case in two respects. First, it is noteworthy that the plaintiff relies on the conduct of a number of different individuals. Second, the core complaints relates to a flawed disciplinary process, or unfair procedures. In considering such unfair procedures as part of a claim for the invalidity of a disciplinary process, it is appropriate to take into account a number of events. But the reality of the plaintiff’s claim here is that overall the process was unfair. It is not sufficient in my view to say that because that process extended over a period of time and a number of different events that it necessarily therefore satisfied the requirement that the conduct be ‘repeated’. Again, this can best be understood by considering a classic case of bullying. There may be individual and occasional incidents of a superior speaking aggressively, losing his or her temper, or making jokes or comments which are hurtful or offensive. This in itself does not give rise to a claim of bullying. It is when a pattern of behaviour emerges that it can be said that the behaviour is repeated for the purposes of a definition. What must be repeated is the behaviour which is inappropriate and which undermines personal dignity. It is not enough that what is alleged to constitute unfair procedures is comprised of a number of different steps unless each of those steps can be said in themselves to be inappropriate and undermine human dignity. However, I do not consider this to be the most important aspect of the case because to some extent it is dependent upon the question as to whether a defective and flawed disciplinary process can be ‘inappropriate behaviour’ for the purposes of the definition.
Inappropriate behaviour
64 It is suggested that the behaviour here is inappropriate because it was in breach of fair procedures. I cannot agree. Inappropriate behaviour does not necessarily need to be unlawful, erroneous or a procedure liable to be quashed or otherwise wrong in law: it is instead behaviour which is inappropriate at a human level. The test looks to the question of propriety in human relations, rather than legality. Again, the more familiar examples of bullying illustrate this. Purposely undermining an individual, targeting them for special negative treatment, the manipulation of their reputation, social exclusion or isolation, intimidation, aggressive or obscene behaviour, jokes which are obviously offensive to one person, intrusion by pestering, spying and stalking—these examples all share the feature that they are unacceptable at the level of human interaction. That in turn is consistent with the concept of human dignity being protected. I agree that the judge’s finding that Ms. Dempsey humiliated Ms. Ruffley and reduced her to tears at the meeting of the 27th January, 2010, is a finding of behaviour that is inappropriate in this sense. By contrast, the fact that the Board proceeded to make a decision to impose a disciplinary sanction on Ms. Ruffley without informing her of that possibility the matters relied on or giving her an opportunity to present her case, was unfair, flawed and liable to be quashed or declared invalid and unlawful. However, it cannot in my view be said, without more, to be inappropriate in the sense in which that word is used in the definition.
Dignity at Work
65 Perhaps the most important aspect of the definition is the question of undermining dignity at work because it relates closely to the value which is sought to be protected by the law. As I understand it, that is the idea that there is dignity in and at work. The fact that a person may be employed by another and may be required to accept instructions, discipline and control during the working day, does not mean that they are to be treated either by the employer, or fellow workers, in a way which undermines their essential dignity as a human person. This is, in my view, a central feature of the test. It is noteworthy therefore, that both the High Court judge and the dissenting judge in the Court of Appeal do not appear to approach this limb of the definition as providing any separate or additional test. Thus, Finlay Geoghegan J. considered that: “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”. She concluded: “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.” (para. 22). The plaintiff argues therefore that the fact that the disciplinary process was unfair is enough to satisfy this component of the definition.
66 In my view, the manner in which the plaintiff’s argument approaches this limb of the test drains it of much of its meaning. The conduct is said to be repeated because more than one event is relied upon. It is inappropriate because it is in breach of fair procedures, and accordingly, it must be undermining of dignity at work. This is illustrated by paragraph 88 of the trial judge’s conclusion:
“There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”
In my view for the reasons already set out, it seems to me that the requirement of conduct undermining dignity at work is a separate, distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.
67 The word dignity, carries a considerable charge with a distinct moral component. The preamble of the 1937 Constitution was it appears the first time the word was used in the context of a fundamental rights guarantee. It has now become to be seen as a vital component in the protection of human rights in the post-war world. It is for example no coincidence that dignity is afforded a preeminent status in the post-war constitutions of both Germany and Israel. In the Irish context, it has been invoked in the context of marital privacy (McGee v. The Attorney General [1974] IR 284), the criminalisation of male homosexuality (Norris v. The Attorney General [1984] IR 36 (Henchy J. dissenting)), the withdrawal of treatment from a patient in a permanent vegetative state (In re a Ward (No.2) [1996] 2 I.R. 79), and the prohibition on assisted suicide (Fleming v. Ireland [2013] 2 IR 417). Walsh J. said in Quinn's Supermarket v. Attorney General [1972] I.R. 1 at pp. 13 and 14, that the guarantee of equality under Article 40.1 was not a:
“guarantee of absolute equality for all citizens and all circumstances but it is a guarantee of equality as human persons (and as the Irish text in the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded on assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes whether ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community”.
The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.
68 I am aware that Ms. Justice Finlay Geoghegan lays stress on the fact that she considered the plaintiff had been treated unfairly by reference to other SNAs. She considered that a right to dignity at work included a right to be treated “with respect and fairly and not less favourably than other colleagues in a similar position”, and not to be “singled out unfairly from colleagues in a similar position in such disciplinary process”. (para.22). I accept that the “singling out” or “targeting” of an individual for disciplinary purposes is capable of being a component of bullying. However, the use of the verb in these formulations is important. It is not enough in my view that after the fact it is possible to say that a person has objectively been treated differently and worse than others in a similar situation, even if that in certain circumstances may give rise to a different claim. I accept for example as set out at paragraph 43 above that in the context of dismissal proceedings, an apparent deviation from prior practice may itself be evidence of unfairness. But in many cases in which it can be said a person has been ‘targeted’ or ‘singled out’ for disciplinary sanction and which constitutes at least part of a finding of bullying, the fact of a general practice will have been known to the superior prior to the initiation of any disciplinary process, and in such circumstances may give rise to the inference that the disciplinary proceedings are not being pursued bona fide because of a concern about the practice or behaviour, but rather as a form of punishing and perhaps humiliating the individual concerned.
69 In my view that is not what occurred here. While I have some concerns about the manner in which the limited evidence in this case becomes converted into a finding of general practice, it is not suggested that Ms. Dempsey, still less the Board, were aware of any such practice limited or general at the time the disciplinary process was initiated against the plaintiff. In Ms. Dempsey’s case, she went to the sensory room, could not gain access, and therefore had immediate first hand evidence of what the plaintiff had done. In relation to both Mr. Lynch and the Board, it is not suggested that they were aware of any practice. On the contrary, it is suggested that they should have been told by Ms. Dempsey of the point raised by Ms. Ruffley that other SNAs had done this. But that in my view cannot constitute targeting or singling out of the plaintiff. It is suggested that once aware of this fact, Ms. Dempsey, Mr. Lynch and the Board ought to have conducted a more thorough examination of the extent to which there was a practice among other SNAs. Somewhat surprisingly, the trial judge goes so far as to conclude that this meant that the disciplinary process against Ms. Ruffley should not have proceeded at all. But any such investigation was only relevant to the extent of the sanction to be imposed on Ms. Ruffley: as was submitted on her behalf by her union, the Part Four final warning was alleged to be “too severe”. Of its nature, any such inquiry would not have yielded evidence as clear-cut and direct as emerged when Ms. Dempsey sought access to the sensory room on the 14th September, 2009. It is of course suggested in retrospect that the sanction imposed on Ms. Ruffley was disproportionate having regard to the evidence that was available or potentially available in relation to the practices of other SNAs. This, if comprehensively established, might well sustain a challenge to the sanction imposed. In my view however it would significantly expand the concept of bullying if this type of analysis were sufficient to establish that charge.
70 It may be, that lurking in the plaintiff’s case, and the acceptance of it by the trial judge, and the dissenting judgment in the Court of Appeal, is indeed a belief that Ms. Dempsey, Mr. Lynch and the rest of the Board were not bona fide in their pursuit of the disciplinary process which was in fact targeted at and intended to victimise the plaintiff. If this suggestion is to be made by the plaintiff, it should be made explicitly, put to all the relevant parties, and then be the subject of an express finding by the trial judge setting out the evidence leading to such a conclusion to allow appellate review. The judgment in the High Court, while forceful in favour of the plaintiff, stops well short of such a conclusion. At their height, the facts found in the High Court judgment which are capable of being upheld on appeal judgment do not constitute bullying. Accordingly, the appeal must be dismissed.
71 It may also be appropriate here to address the two questions upon which leave to appeal was granted. It is the case for example that in jurisdictions where there is a separate tort then as set out in the Restatement on Torts (2nd), it is necessary to show some intent to injure and cause distress or recklessness at least. That is necessary under the rule in Wilkinson v. Downton. In the cases where the conduct does meet the high threshold required, this may not indeed be a particularly onerous requirement, given the presumption that a person intends the natural and probable consequences of his or her actions. In most cases of bullying it will be obvious that there is malicious intent. However so long as the cause of action remains a subhead of the employer’s duty of care, it is difficult to see that intent on the part of the bully is an essential feature of the claim: the employer owes a duty of care to the employee to protect them from conduct or matters causing distress amounting to a recognisable psychiatric injury. That duty also extends to workplace stress claims which may have no individual actor involved. It is difficult to see why, if the employer’s duty is to protect an employee from conduct which is damaging, that there should be a necessity that the conduct be actuated by malicious intent. The so-called corporate liability for bullying is slightly different. The conduct must be intentional and calculated to cause distress. I would reserve the question whether malice, in the sense of intent to injure, is an essential component of such a claim. But even if not, malice is not certainly irrelevant. A claim for bullying will certainly be strengthened significantly by proof of malice. This was illustrated by Quigley where it was recorded that the manager said he would “sort out the granddads”. Consciousness on the part of the victim (and others) that they are being pursued vindictively will certainly make it easier to establish that conduct was inappropriate and undermined dignity at work. On the second question, I consider further that conduct which occurs in private can be a component of a claim for bullying. It is possible to treat someone inappropriately and undermine their dignity, without that conduct being witnessed. Again however any element of humiliation in public will certainly strengthen a claim.
Resolution of this Case
72 The difficulties in this case are not however limited to the findings of fact or the legal definition of bullying. The plaintiff succeeded in this case at first instance. The High Court refused any stay on its award. The Supreme Court (to which appeal then lay) imposed a partial stay on the judgment on terms that the defendant was obliged to pay the plaintiff the sum of €100,000. That occurred over two and a half years ago. The plaintiff has not been in employment since she left this school in 2010. There is furthermore the conclusion upon which all judges who have heard this matter are agreed, that the disciplinary procedures followed by the school were inadequate and impermissible, and could and would have been declared invalid in proceedings brought for that purpose. The entire process including the seven years of litigation have been extremely stressful to the plaintiff who it seems likely is particularly vulnerable to such stresses. While in my view the matters alleged here do not give rise to a successful claim for bullying, I readily acknowledge that the degree of judicial disagreement demonstrates that this is by no means clear-cut. In those circumstances, it may be necessary to hear argument as to any consequential orders but I should indicate a provisional view that I would be very slow to order the plaintiff to repay to the defendant the sum of money paid as a condition of obtaining the partial stay, or pay costs. It may indeed be necessary to reflect the fact that the plaintiff would have been justified in coming to court to have it determined that the procedures applied to her were flawed. It would be desirable that the parties could reach their own agreement on these matters but in the event that there is no such agreement, I would be prepared to hear argument and make a final decision in that regard.
Judgment of Mr Justice Peter Charleton, delivered on Friday 26th of May 2017
1. Of itself, bullying is not a tort. That obnoxious perversion of the ordinary human duty of give and take may, nonetheless, give rise to tortious liability. No overall theory of what constitutes a tort has yet emerged from the apparently random declaration of individualised wrongs that mark out the parameters of this area of law. Generally it is because people are expected to behave in a particular way in relation to matters under their control, or are required to organise their affairs so as to avoid harming others, or have a responsibility fixed at law towards those who act on their behalf, which mark out the individual principles upon which a series of disparate civil wrongs are based. As Professor Winfield in The Province of the Law of Tort (Cambridge, 1931) put the matter at page 32:
Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
2. Crime and tort had a common origin in the taking charge by an increasingly ordered society, through its judicial system, of private retribution for personal wrongs. In the formation of such rules defining liability, people were instructed through individual decisions as to how the rule of law would both replace individual reaction and place into the category of a wrong any attempt at repayment of one wrong by another. Historically, this began by giving civil as well as criminal remedies for wrongs to the person and this was later extended to a person’s reputation. The development of tort law has been piecemeal. Prior to the decision in Rylands v Fletcher (1868) LR 3 HL 330, issues as to the use or abuse of land were more properly an aspect of the duties and responsibilities of servient and dominant interests. Interference with contractual relations emerged out of the decision in Bowen v Hall (1881) 6 QBD 333, perhaps because in some circumstances it would be unjust to answer a claim of wrong with a no privity defence. In reaction possibly to the balance of influence as between the interests of society and the representation of employees, intimidation was recognised as a tort in Rookes v Barnard [1964] AC 1129. Whereas up to Donoghue v Stevenson [1932] AC 562, negligence was an element of tortious liability, thereafter it became a defined aspect of an overarching wrong subject only, it appears, to public policy limiting its application. So much did the tort of negligence apparently emerge as the answer to every plaintiff’s needs, pleaded as it has been as an alternative to every other defined wrong, this Court had to warn in the majority judgments in Cromane Seafoods v Minister for Agriculture, Fisheries and Food [2016] IESC 6 that this tort has not dissolved the existing definitions of other wrongs or submerged them.
Inflicting illness by manipulating emotion
3. It was with the decision in Wilkinson v Downton [1897] 2 QB 57 that a joke in very bad taste, leading to the unfortunate plaintiff almost losing her reason and suffering obvious physical effects, could give rise to liability. A practical joke is of its nature designed to cause at least momentary amazement, if not shock, but, as in that case, it can go too far: so far that the law must find a remedy. Hence, as Professor Heuston comments at pages 32-33 of the classic 17th edition of Salmond on the Law of Torts (London, 1977):
The law of torts is not a static body of rules, but is capable of alteration to meet the needs of a changing society. One word of warning should be added. It is often rather hastily assumed that any desirable alteration in the law of torts must result in the expansion of the field of liability. But social needs may require contraction as well as expansion. Thus it can hardly be doubted that the courts have been justified in refusing to introduce new heads of tortious liability to enable a witness to be sued for perjury, or conspiracy to defame. Again a tort may be invented or discovered only to have little use made of it. So for a century little has been heard for excluding the plaintiff from a public office to which he is legally entitled.
4. No overall theory has emerged as to why the courts should develop a tort. In our system, it may be because a wrong under the Constitution has been committed, but only where no existing remedy will provide redress; as in Meskill v CIÉ [1973] IR 121. Professor Fleming instances moral wrong as the foundation for liability in tort, morphing into the principle that there should be no liability without fault; C Sappideen and P Vines (editors), Fleming’s the Law of Torts, (10th edition, Sydney, 2011) at paragraphs 1.40-1.50. Professor Heuston comments that reasonable foresight has not come to be used as the overarching principle which it was once thought to be, while public policy has had a restraining influence in addition to the traditional analysis of the conduct of the defendant and the legitimacy of the interest of the plaintiff; see Salmond on the Law of Torts, cited above at page 33.
5. As O’Donnell J remarks in the principal judgment, the range of the expansion of tort liability and its extension into relationships at a distance from the conduct found to be at fault is part of the scheme of the law to order society. It is only on a careful analysis of the balance of not only where legitimate activity should be protected, but also where those who suffer in consequence of the wrongs of others should be compensated, that decisions as to redress for civil wrong develop. Hence, usual dangers such as flooding are tolerated in the tort of the escape of dangerous things; but the building of a repository for toxic gas will lead to a different decision on liability. Making a joke is socially acceptable, and bad taste is tolerated, but sending a person into immediate distress to the detriment of their long-term health is not. Commenting negatively on those who enter willingly into the discourse of public life is different to factual but inaccurate statements about those same individuals under the law of defamation. Whereas vulgar abuse is unpleasant, it is only actionable where it assumes the shape of an assertion of fact which takes away another’s character.
6. In considering, therefore, any extension of the law on negligent or intentional infliction of harm into the workplace, decisions must be informed by what has so often been said in the context of family disputes: that men and women are to be judged with the appropriate measure of appreciation for human nature and that, hence, conduct is be judged according to the standard of human beings, and not of angels.
7. There are two strands of potential liability for a plaintiff to employ against a bully. Firstly, conduct may be so egregious, deliberate and malicious as to engage the rule in Wilkinson v Downton, cited above. In so far as there may be a debate as to whether corporate bullying is a separate tort, this first strand of liability seems to provide the answer. For an employer to persistently and repeatedly engage in unnecessary and nasty conduct over an appreciable time outside the ordinarily tolerated range of correction or discipline necessary in the workplace, in such a way as to undermine the employee’s dignity, so that coming to work becomes not merely difficult but dreaded, according to the standards of robust human reaction, is to engage that tort where organic depression or other physical illness is the consequence. The standard has to be set at a level where giving advice, telling people off, temperamental reaction or emotional interaction is not allowed to disrupt the duty of managers to see that work is done, and the entitlement to healthy satisfaction that actually justifying one’s wages represents. In this context, joining in an unacceptable standard of conduct may engage an employer in the intentional infliction of harm.
8. That line of liability, however, does not seem to be one which has been analysed to a plaintiff’s success in any written decision concerned with bullying to date. Most probably that is so because the tort retains an intentional element which most often may be inferred from the evidence, if it is not otherwise admitted, perhaps in an internal workplace email, but where, as in the original case, the conduct carries obvious connotations. The analysis in the various judgments of the Supreme Court in Britain in Rhodes v OPO [2016] AC 219 also indicates a debate as to the precise elements of this tort. In that and in other English cases, there has been doubt cast on the definition provided in Salmond and Heuston on Torts (21st edition, London, 1996) at p 215, which provides that “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it”. The principle, however, must remain that an individual who, through utterly unacceptable conduct, deliberately distresses another to the point where they suffer a recognised psychiatric condition, is liable in damages.
9. In the United States of America, the application of the tort of intentional infliction of emotional distress in the employment context has confined liability. The elements of this tort are set out in Womack v Eldridge 215 Va 338, 210 SE 2d 145 (1974) at para 28:
[A] cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer's conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer's conduct and the emotional distress. Four, the emotional distress was severe.
10. In Law of Torts (4th edition, New York, 1971), Prosser comments at p 56 that so far “as it is possible to generalise from the cases”, liability will only be established on the basis of “conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” In Earl v HD Smith Wholesale Drug Co, 2009 WL 1871929 (CD III June 23, 2009), it was acknowledged at p 4 that courts will “recognise a workplace claim for intentional infliction of emotional distress only in the most extreme circumstances.”
11. The second strand of potential liability is that which protects employees from harm in the workplace. An employer is obliged to take reasonable care to protect employees from injury. That duty however is not absolute; it is not that of an insurer. The duty is to remove risks which can be removed, to train employees for the workplace tasks and to organise the workplace in such a way as injury may be avoided. Employees have a duty to take care but, generally in workplace accidents, it is usually not an absence of care or training by an employer which establishes liability, but instead carelessness imputed to the employer through vicarious liability in an action where one employee causes injury to another. Injury can be caused by bullying.
12. In New Zealand and in Australia, the law is based on the general safety of employees and the duty of employers to secure it. Necessarily, the conduct whereby a recognised psychiatric illness will attract damages, if shown to have been caused by conduct at work, has been restricted. In Attorney-General v Gilbert [2002] 2 NZLR 342, the Court of Appeal held at para 72 that general legislation providing for safety at work makes “no distinction between physical, psychiatric or psychological illness or injury.” At para 83, the court consequently held that the employer must take reasonably practicable steps to ensure that employees do not suffer from psychological harm resulting from workplace stress:
An employer does not guarantee to cocoon employees from stress and upset, nor is the employer a guarantor of the safety or health of the employee. Whether workplace stress is unreasonable is a matter of judgment on the facts. It may turn upon the nature of the job being performed as well as the workplace conditions. The employer's obligation will vary according to the particular circumstances. The contractual obligation requires reasonable steps which are proportionate to known and avoidable risks.
13. This exercise involves a court reconstructing what an employer ought to have known at the time when repeated actions by fellow employees were undermining the plaintiff’s dignity at work. That is a traditional tort exercise. In Koehler v Cerebos (Australia) Ltd [2005] HCA 15, the Australian High Court held at paragraph 35 that “the relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable”. As a result, the “central inquiry remains whether, in all the circumstances, the risk of a plaintiff ... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.” As Hayne J put it in Vairy v Wyong Shire Council [2005] HCA 62 at paragraph 126, when a plaintiff makes a claim for damages for personal injury caused by the defendant's negligence, the court becomes engaged in an inquiry into “breach of duty”, hence the court “must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered.” What this involves is an “attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred.” Conduct giving rise to liability in that jurisdiction seems to be of an extreme kind.
14. In Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618, the plaintiff was a security operative, assigned to a TV news channel, and later became the defendant’s assistant, the defendant being the news channel’s security and fire manager.. In this role, the defendant subjected the plaintiff to racist and demeaning name-calling, aggressive and threatening communications, indecent sexual acts, sexual harassment, and directed him to work unpaid hours which cut his sleep to unsustainable levels. The plaintiff was threatened on multiple occasions that he would lose his employment if he did not accede to his manager's requests. The manager also said he would kill the plaintiff and repeatedly threatened his life if he told anyone about the indecent sexual acts and other bullying behaviours. The manager also threatened him with physical violence and subjected him to racial abuse, requiring him to work on Saturdays at his property, work for which the plaintiff was not getting paid. The New South Wales Supreme Court found that the plaintiff’s employers owed him a duty of care and that the treatment of the plaintiff amounted to workplace bullying, to such an extent that Adams J found that it was “reasonably foreseeable that such illness might well result from the infliction of that conduct upon the plaintiff”. He described the behaviour of the defendant, the manager, at paragraph 17 as “so extreme” that “he well knew, or would have known had he reflected as a reasonable man should have” that the result of what the judge described as prolonged misconduct “could reasonably be expected to expose him to the real risk of such psychological injury.”
15. In this jurisdiction, the High Court has correctly emphasised in a series of decisions that what is involved in bullying as a compensatable wrong is a breach of the standard of care owed by an employer to employees; see Sweeney v Ballinteer Community School [2011] IEHC 131, Kelly v Bon Secours Health System [2012] IEHC 21, Nyhan v Commissioner of An Garda Síochána & Ors [2012] IEHC 329 and Browne v Minister for Justice, Equality and Law Reform [2012] IEHC 526.. An employer has a general duty of care towards their employees. In McMahon & Binchy's Law of Torts (3rd edition, Dublin, 2000) at paragraph 18.80, the authors state that:
An employer may be personally liable for sexual harassment or bullying of an employee, either on the basis that the employer ought to have been aware of the offending employee’s propensity to act in this way or on the basis of an unreasonable failure to provide a safe system of work.
16. In the 4th edition (Dublin, 2013), it is correctly stated at paragraph 18.80 that:
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.
17. With regard to forming the elements of a tort of wrongful conduct that embraces workplace bullying, the common law in Ireland has not developed through judicial decision according to necessity and justice but instead has been subject to an intervention in the shape of section 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (SI No 17 of 2002). This defines workplace bullying as “repeated inappropriate behaviour”, which may be “direct or indirect, whether verbal, physical or otherwise” engaged in by an individual or a group against the plaintiff at their workplace and which “could reasonably be regarded as undermining the individual’s right to dignity at work.” Whereas under the strand of tort liability derived from Wilkinson v Downton, an isolated but sufficiently grave incident from which intention to cause severe distress may suffice if psychiatric injury results, bullying is by its nature a repeated activity. A consideration of workplace codes of practice from other jurisdictions tends to reveal the same elements - behaviour completely beyond the tolerable, that undermines dignity at work, and which is repeated so that it forms a pattern which genuinely undermines a person’s ability to come to work and serve in his or her position.
18. Whether the courts were obliged, pursuant to the statutory mechanism under which this code of practice was established, to accept this definition has not been argued in this case. In the light of the relevant case law, this seems beside the point. The definition was accepted by the High Court in Quigley v Complex Tooling and Moulding Limited [2009] 1 IR 349, where the plaintiff claimed that he had been a victim of workplace bullying by his manager, which allegedly resulted in mental distress and psychiatric injury. The plaintiff was awarded damages. In the Supreme Court, the award of damages was overturned on the basis that causation of the plaintiff’s depression had not been proven to have resulted from the bullying, but was rather ascribable to him having lost his job when the factory went out of business. At paragraph 15, Fennelly J, however, accepted the code of practice definition and described what the plaintiff had been subjected to as “a unique amalgam of excessive and selective supervision and scrutiny … unfair criticism, inconsistency, lack of response to complaint and insidious silence.”
19. The test requires all of the elements to be fulfilled. It should be considered sequentially. It is objective. Not subjective. It cannot be right to formulate liability on the basis of how people see the conduct of their colleagues in the workplace, but instead only on the basis of how that conduct would be objectively viewed; see Glynn v Minister for Justice, Equality and Law Reform & Ors [2014] IEHC 133 at paragraph 54. An employer is entitled to expect ordinary robustness from its employees; Croft v Broadstairs and St Peter’s Town Council [2003] EWCA Civ 676. Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary. In Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, the Court of Appeal in England and Wales considered a disciplinary procedure which was alleged to have resulted in the plaintiff suffering from depression. Underhill LJ noted at paragraph104:-
It is a normal characteristic of the employment relationship that employees may be criticised by the employer and sometimes face disciplinary action or other such procedures. And in an imperfect world it is not uncommon for such criticism or disciplinary process to be flawed to some extent: there will be a spectrum from minor procedural flaws to gross unfairness. The message of Croft is that it is not usually foreseeable that even disciplinary action which is quite seriously unfair will lead the employee to develop a psychiatric illness unless there are signs of pre-existing vulnerability.
These facts
20. In every respect, and by ordinary human standards, the school authorities were at fault in their treatment of Úna Ruffley. She was a valued special needs assistant. By no standard could it have been expected that she would have subjected any of the children in the school to any form of ill-treatment. As there is no full transcript before the Court, it has not been possible to work out whether the door which was locked on the 14th of September 2009 incorporated a glass panel. Most school doors do but this, apparently, was a storage room called into action due to pressure for space. She was worried about the child running from the room, and the evidence was that he had that propensity, and chose a remedy which was contrary to the not very well publicised school policy; that a child and a teacher should not be behind a locked door. Had the child bolted out the door and perhaps escaped into the street, it is possible that there could have been either disquiet or injury. Then there would really be need for an inquiry. Other people, completely responsible people, had locked the door in these circumstances. Once the informal survey conducted on her behalf disclosed that her offence was not unique, and that is what the survey did, any attempt at disciplinary action against her should have come to a complete stop. It was then the responsibility of those in charge to acknowledge, and this does not require any formal process, that there was a fairly widespread practice of teachers and special needs assistants locking themselves into a room with children: and that because this could expose them to false claims or could frighten the children, this practice should immediately stop. Thereafter, but only thereafter, a breach of that policy might become serious.
21. In the age of judicial review, disciplinary procedures are necessarily subject to procedural infirmity and may fail due to the principles which are so ingrained in lawyers, being alien to those who are engaged in administration or education. It is also well to take into account the degree to which emotion on both sides may have influenced what has gone wrong here. O’Donnell J is correct to call paragraph 48 of the judgment of ÓNéill J into question. While in most circumstances, this could be regarded as coming within the principle set out in Hay v O’Grady [1992] 1 IR 210 at page 217, being that inferences of fact drawn from witnesses should be treated by appellate courts with especial respect; in reality other explanations were reasonably forthcoming for what had occurred. These include emotional reaction, worry about possible claims and genuine concern for the children. People in such circumstances do not need to have their emotions whipped up but perhaps an equal explanation is that the school board just became overwrought.
22. In all of this, instead of sensibly stepping back, the school authorities allowed the juggernaut of disciplinary action to continue in an unfair fashion and this included an incident where no closure was brought to matters and where one particular meeting was fraught with emotion of an unpleasant kind directed against Úna Ruffley.
23. What is involved here was a disciplinary process where the school authorities, for reasons best known to themselves, entrenched themselves in a dugout of justification whereby they could admit no fault. This is not bullying. The conduct was not at that extreme and repetitive level. It is, instead, a disciplinary process that has gone wrong. It must clearly be acknowledged, however, that the reason that it went wrong had nothing to do with Úna Ruffley but was entirely down to a lamentable failure to rethink by the school.
24. The consequence of this has been obvious emotional distress caused to someone who should otherwise have been valued. Her contribution to the education of those with learning difficulties should be acknowledged by the Court. The school should acknowledge that it was in the wrong and Úna Ruffley should be encouraged to return to her duties. There has been enough litigation about this matter and this part of it is not at all to the credit of the school in any way.
Costs and discretion
25. Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action. Given that the test for bullying is of necessity to be set very high, these are not circumstances which can attract damages. There are, however, circumstances under which the discretion of the court in relation to costs under Order 99 of the Rules of the Superior Courts can enable an acknowledgement that extreme circumstances have occurred. This can result in, and could reasonably be argued to mean here that, the costs of the litigation in the High Court and in the Supreme Court being awarded to the losing party. The circumstances that might justify this, in this one exceptional instance, also include that the relevant law has been clarified by the litigation in a manner which would be of benefit to existing and future cases and to insurers, none of whom can claim, in consequence, this exceptional circumstance. It is also rare for a court to come across an instance where one side is completely at fault, but fails to acknowledge any such failing even in the context where ÓNéill J was required to make particularly trenchant findings of fact.
26. The issue as to costs requires separate consideration, but by no sensible reckoning was this litigation complex. This was an ordinary tort case involving the resolution of straightforward facts: was a door locked, why was it locked, was it a breach of procedures to lock the door, was the plaintiff the only person to lock the door while inside with a child, how would school authorities ordinarily react to such a minor breach of procedures, was it necessary to invoke a formal investigation and reprimand, was a disciplinary note justified, should that have been backed away from once the facts became clear that it was not just Úna Ruffley who had made that understandable mistake, what happened at the meeting of the school board, and what happened on the various occasions when the plaintiff and the school authorities met? In terms of discovery, it is hard to see more being involved than the gathering of internal human resources management and disciplinary files together with a trawl of relevant emails. In the light of whatever submissions are made as to the principal judgment of O’Donnell J and this judgment, the costs issue and the final form of the order should then be decided.
