Appeal Court decision on €225k bullying award is timely reminder for HR
On 8 December 2015, the Court of Appeal in Ruffley v The Board of Management of St. Annes School, overturned the largest ever award made in a decision concerning bullying in the workplace. The decision is important as it serves as a useful reminder as to what constitutes bullying in the workplace writes Catherine-Ellen O’Keeffe*(i).
In Ruffley v The Board of Management , the Court of Appeal held that to allow the decision of the High Court to stand would be to widen the legal definition of bullying to all kinds of situations which it was never intended to cover.
While a “botched” disciplinary process does not necessarily constitute bullying, the Court did acknowledge that that is not to say that “behaviour that can objectively be viewed as bullying enjoys no safe haven merely by reason of the fact that it may have taken place in the context of a disciplinary process”.
By a majority of 2-1, the Court held that the conduct in this case did not amount to bullying and overturned the decision of the High Court.
High Court Decision
The plaintiff, Ms. Ruffley, had been a special needs assistant in St Anne’s National School, The Curragh, Co. Kildare (the “School”) since 1999. In 2009, she locked the door of the sensory room in the School, a measure which was not allowed by the School and which raised child protection concerns.
Shortly afterwards, a second incident arose where Ms. Ruffley marked that a goal had been achieved on a pupil’s scorecard when in fact this had not been the case. Ms. Ruffley acknowledged the error and said that it was a mistake on her part. Ms. Dempsey (the “Principal”) took a different view and was unwilling to accept Ms. Ruffley’s explanation at face value.
A disciplinary process was commenced and Ms. Ruffley received a final written warning, a sanction just short of dismissal. Ms. Ruffley appealed this sanction, but very shortly afterwards she went on sick leave due to work-related stress and remained out of work since then.
The judgment of Justice Irvine in the Court of Appeal summarised the findings and conclusions reached by the High Court which were as follows (ii):
i. That Ms. Ruffley “should not have been subjected to this disciplinary process” and her “treatment throughout that process” was inappropriate.
ii. That the “falsification” of the paperwork by Ms. Ruffley during the performance review was an irrational and conjured up basis used to justify the revival of the earlier incident involving the locked sensory door. The High Court stated that the Principal’s conclusion that the forms had been falsified was “extreme and utterly removed from what right-thinking people would consider to be a reasonable conclusion in that regard” and was indicative of bad faith on her part.
iii. That the manner in which the Principal conducted the disciplinary process was grossly unfair and was in breach of natural justice, particularly in circumstances where Ms. Ruffley was given no opportunity to defend herself.
The High Court said that the proper approach would have been for the Principal to have followed up on Ms. Ruffley’s account that other SNA’s also locked the same door. If the Principal had done so prior to 23rd November 2009, the Court took the view that the Board of Management would have been aware of the common practice of locking the door and Ms. Ruffley would have received a lesser penalty.
iv. That the sanction was particularly unfair in that Ms. Ruffley had never been instructed not to lock the door.
v. That Ms. Ruffley’s conduct in locking the door was no more than a misdemeanour and the sanction imposed an “extreme, if not, downright intemperate” response to the incident by the Board of Management.
vi. That the Board of Management’s decision must have been the consequence of an “almost certainly untrue, highly biased, coloured” account given by the Principal which “grossly and unfairly damnified the plaintiff”.
vii. That until March, 2010, it may not have been clear to the Board of Management as to the practice of other SNAs who at that stage had admitted to locking the door. The Board of Management’s failure to reverse the decision on appeal was evidence that it had not given “meaningful consideration” to Ms. Ruffley’s claim that it had been common practice to lock the sensory room door. The High Court was of the view that this was indicative of unfair and inappropriate conduct on the part of the Board of Management such that its conduct could not be considered an isolated incident having regard to its knowledge as to the adverse effect that the Board’s decision had had on Ms. Ruffley’s wellbeing.
viii. That the manner in which the appeal had been managed by the Board of Management breached the principles of natural justice in that it had been conducted by the same body that decided the disciplinary issue at first instance and this was contrary to the legal maxim “nemo iudex in causa sua”.
In finding in favour of Ms. Ruffley, the High Court held that she had been subjected to repeated inappropriate behaviour that had affected her dignity in the workplace and went on to conclude that Ms. Ruffley had suffered a definite and identifiable psychiatric injury from which she was likely to suffer for some time into the future.
Court of Appeal Decision
The central issue in this Appeal was whether the actions of the School in the context of disciplinary proceedings involving Ms. Ruffley, amounted to bullying in the workplace and if so, whether there was a causal link between that bullying and certain psychological injuries allegedly suffered by her, thus meriting the award of damages in the High Court.
The Legal Test- what is bullying?
The Court of Appeal examined the test for determining whether conduct amounts to bullying. A plaintiff must establish that the treatment which they claim has caused their injury constitutes an actionable wrong. In establishing a breach of the common law duty of care, the conduct complained of must come within the Industrial Relations Act, 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (the “Code of Practice”) definition of bullying. Workplace Bullying for the purpose of the Code of Practice is defined as follows:-
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work”.
An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
Therefore, the behaviour alleged by a plaintiff must be repeated; it must be inappropriate and it must undermine the dignity of an employee at work (iii).
In the Court of Appeal, Justice Irvine also made the following useful observations in relation to workplace bullying:
1. Bullying can only be identified retrospectively- its first incidence only amounts to bullying by virtue of its repetition (iv). Implicit in this requirement is that the incidents of inappropriate conduct must be reasonably proximate or close to each other in time.
2. Incidences of inappropriate conduct do not have to be of the same nature or character to constitute bullying. Different types of conduct when directed to one person can constitute bullying.
3. What amounts to inappropriate behaviour must be objectively determined by the court and the test does not centre upon the intention of the person or persons concerned in the alleged bullying (v). In the context of a disciplinary process, Justice Irvine drew a distinction between conduct, decisions and sanctions which might from a procedural perspective be unlawful or appear harsh and circumstances which may be considered to amount to repeated inappropriate conduct that undermines the dignity of the worker (vi).
In carrying out an examination as to whether the conduct in question amounts to bulling from an objective standpoint, as opposed to harsh or misguided treatment, a court must assess the behaviour in the context of all the relevant circumstances.
In his examination of the various alleged incidents of bullying, the President of the Court of Appeal indicated that while name-calling or humiliating comments or practical jokes could amount to bullying, it would be “stretching the meaning of the word ‘repeated’ much too far to regard a continuing process of discipline in pursuit of legitimate concerns, even if actually unfair, as repeated behaviour” (vii). He said that if the decision of the High Court was to stand, it would widen the tort of bullying to all kinds of situations that it was never intended to cover. Interestingly, the motive of the Principal in pursuing the issues of concern arising from the locked sensory door appears to have been particularly relevant to the Court’s assessment of the Principal’s treatment of Ms. Ruffley and whether such treatment could be deemed to be inappropriate and undermine the employee’s right to dignity at work:
“There was nothing in the process of investigation that constituted a sustained campaign maliciously pursued in order to intimate or humiliate or denigrate the plaintiff.”
He concluded that while this was certainly a “botched disciplinary process”, it was honestly pursued in the interest of child protection. Curiously, the judgments of Justice Irvine and the President of the Court of Appeal would appear to place different emphasis on the intention and motive of the alleged bully and its relevance to the courts overall assessment as to whether workplace bullying did, in fact, take place.
Given the number of bullying cases in recent years that have, arguably, broadened the definition of workplace bullying, it is noteworthy that the President of the Court of Appeal concludes his judgment with the following sentiment:
“The definition is carefully drafted so as to convey the particular nature of the activity that is the subject of the wrong and which is required to be addressed by an employer. It is important that the courts should respect the precision of the definition and its limitations and confine it to the proper circumstances in which it applies.”
In this way, the decision is a useful reminder that the definition of workplace bullying as set out in the Code of Practice is “an accurate statement of the common law duty of care”(viii) and the behaviour in question will be assessed objectively in the context of all the relevant circumstances.
*Catherine-Ellen O’Keeffe, Solicitor, Employment Law Department, Ronan Daly Jermyn.
i (2015) IECA 287.
ii (2015) IECA 287 at para. 28 (Irvine J.)
iii The definition of bullying in the Code of Practice was endorsed by the Supreme Court in Quigley v Complex Tooling (2009) 1 ER 349.
iv (2015) IECA 287 at para 39 (Irvine J.)
v Para 39. Glynn v The Minister for Justice, Equality and Law Reform (2014) IEHC 133 at para 52.
vi (2015) IECA 287 at para 39 (Irvine J.)
vii (2015) IECA 287 at para 67 (Ryan P.)
viii Quigley v Complex Tooling (2009) 20 ELR 61.
Also published in the Industrial Relations News Legal Feature on 4th February 2016