1 | ARTHUR COX
Group Briefing
April 2016
KEY CONTACTS
For further information, please contact:
SEAMUS GIVEN
HEAD OF EMPLOYMENT GROUP
+353 1 618 0565
[email protected]
LOUISE O’BYRNE
ASSOCIATE
+353 1 618 0526
[email protected]
EMPLOYMENT
Defining workplace
bullying - landmark
judgment clarifies key
principles
A landmark court decision has provided
essential practical guidance to employers
seeking clarity on what constitutes
bullying under Irish law. In a split
decision, the Court of Appeal in Ruffley
v Board of Management of St Anne’s
School overturned the highest ever
award of damages to an employee for
workplace bullying on the grounds that
the defendant’s actions did not constitute
workplace bullying.
Workplace bullying is defined under Irish
law as “repeated inappropriate behaviour…
which could reasonably be regarded as
undermining the individual’s right to dignity
at work.” As it can be difficult to determine
when this threshold has been met in
practice, the Court’s detailed consideration
of the definition of workplace bullying is
an important development for employers.
The conclusions of the Court and the
key lessons for employers following the
decision are outlined below.
BACKGROUND TO THE APPEAL
RACHEL BARRY
TRAINEE
+353 1 618 0685
[email protected]
This document contains a general summary of
developments and is not a complete or definitive
statement of the law. Specific legal advice should be
obtained where appropriate.
The High Court had awarded the
plaintiff €255,276 for personal injuries
caused by alleged bullying in the course
of her employment as a special needs
assistant (SNA) in the defendant’s
school. The allegations of bullying arose
from the implementation of a flawed
disciplinary process by her employer
over the course of a year.
In 2009, the plaintiff became concerned
and sought help when a child she was
working with fell asleep in a room used
for individual therapy (the Sensory
Room). During this incident, the Principal
discovered that the plaintiff had locked
the Sensory Room door from the inside.
Despite the plaintiff’s claims that other
SNAs had locked the Sensory Room door,
a four week monitoring process was put
in place to review the pupil’s progress
under the plaintiff’s guidance.
Towards the end of the monitoring period,
the class teacher noted that the plaintiff
had ticked a box on the monitoring
form which indicated that the pupil had
completed a goal when in fact he had not
done so. The plaintiff was not allowed
to correct this entry, and the disciplinary
process was reactivated. The board decided
that the plaintiff should be given a final
written warning, a sanction just below
dismissal. After a short delay, the plaintiff
was informed of the sanction and sought
to appeal the result, but was ultimately
unsuccessful. The plaintiff continued
working until September 2010, when,
after an exchange over alleged lateness for
work, she went on sick leave due to work
related stress. She subsequently sued her
employer, claiming that its actions over
the course of the disciplinary process
had caused her psychiatric injuries, and
her personal injury claim was successful
before the High Court.
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EMPLOYMENT
DEFINING WORKPLACE BULLYING LANDMARK JUDGMENT CLARIFIES KEY
PRINCIPLES
The school appealed the award on a
number of grounds, including that it
did not cause the mental health injuries
suffered by the plaintiff and that its
conduct did not constitute ‘bullying’.
The Court found that the trial judge
was entitled to accept medical evidence
that the mental health injuries of the
plaintiff were caused by the actions of the
school. The key question was, therefore,
whether the school’s conduct amounted
to bullying.
to bullying. Irvine J went further,
suggesting that a gap of several
years between incidents might not
amount to ‘repetitive behaviour’ in
some circumstances. The timing of
any alleged incidents of bullying will
therefore be relevant in determining
whether bullying has taken place.
iii. Repetitive conduct may not necessarily
be equivalent in character:
Bullying can take many forms, from
abusive emails to allegations of
‘freezing out’. In practice, allegations
of bullying are likely to consist of a
number of incidents that might be
quite different in character, making
it difficult to determine whether an
incident has been ‘repeated’.
The Court was split on this point.
Irvine J noted that ‘different types
of behaviour when directed at one
person may constitute bullying’, whilst
Ryan P understood ‘repeated’ to mean
that it is ‘the same behaviour or class
of behaviour that is offensive and
amounts to bullying’.
WHAT IS BULLYING?
The Court confirmed the statutory
definition of workplace bullying is
“repeated inappropriate behaviour…which
could reasonably be regarded as undermining
the individual’s right to dignity at work.” Each
judge then examined the key elements of
this definition: the meanings of ‘repeated’
and ‘inappropriate’ behaviour and the
concept of ‘undermining the individual’s
right to dignity at work’.
“Repeated” behaviour
A ‘once-off’ incident cannot amount to
bullying – conduct must be ‘repeated’. The
Court in Ruffley was satisfied the conduct
of the school did not amount to a onceoff incident, and made the following key
observations in coming to this conclusion:
i. Courts will take a holistic view of a
complaint:
The school argued that the
disciplinary process could not be
considered ‘repeated’ behaviour
because it was one continuous
process. However, the Court focused
on substance over semantics in
rejecting the school’s assertion, noting
that there were several meetings and
events over a year long period.
ii. Repetitive conduct should be
proximate in time:
A split arose on the issue of the timing
of incidents of alleged bullying,
with Finlay Geoghegan J stating
that the requirement for conduct to
be ‘repetitive’ simply meant that a
‘once off’ incident could not amount
Employers should therefore be aware
that where an employee complains
of different types of incidents, the fact
that the incidents are of a different
character may not prevent the conduct
from being repetitive.
“Inappropriate” behaviour
If the behaviour is not inappropriate,
it cannot be considered bullying. A
key argument of the school in this
case was that the implementation of
a disciplinary process could not be
described as inappropriate. However,
the Court did not accept this argument.
The following remarks of the Court are
important indicators of when behaviour
may be defined as inappropriate:
i. A disciplinary process may be
‘inappropriate’ in certain circumstances:
Employers should be aware that
“behaviour that can objectively be viewed
as bullying enjoys no safe haven merely
by reason of the fact that it may have
taken place in the context of a disciplinary
process.” (Irvine J)
ii. The test is objective; motivation is
irrelevant:
A majority of the Court agreed that
determining whether behaviour is
inappropriate cannot depend on the
subjective perceptions of either the
victim or the perpetrator.
Ryan P’s suggestion that the
motive of the school (protection of
children with special needs) was
relevant in determining whether
bullying had occurred blurs this
principle. However, in light of other
recent cases, employers should
proceed on the basis that even good
intentions will not prevent a Court
from objectively determining that
bullying has occurred.
“Undermining the individual’s right to
dignity at work”
A key factor in the decision to overturn
the award of the High Court was the
Court’s conclusion that the plaintiff
had failed to demonstrate that the
behaviour of the school undermined her
right to dignity at work. The following
observations of the Court to this provide
guidance in interpreting this element of
the definition of bullying.
i. Employees must demonstrate that
their dignity has been undermined:
Ryan P noted that, whilst the conduct
of the school may have undermined
the plaintiff’s work, or even her right to
work, it could not properly be regarded
as undermining her dignity. The proper
test for workplace bullying therefore
centres on the dignity of the employee,
rather than the performance of an
employee’s duties.
ii. Disciplining for conduct which is
‘common practice’ does not necessarily
undermine an employee’s dignity :
The plaintiff argued that disciplining
her alone for locking the door of a
room amounted to bullying, as this
was in fact common practice among
special needs assistants at the school.
The majority of the Court disagreed
with this argument, noting that the
fact that others engaged in the same
EMPLOYMENT
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DEFINING WORKPLACE BULLYING LANDMARK JUDGMENT CLARIFIES KEY
PRINCIPLES
practice and had not been caught
did not mean that the investigation
of the school into a single incident
where the plaintiff had been
discovered was inappropriate or
vindictive, especially in the context
of child protection concerns.
Finlay Geoghegan J, in her dissenting
judgment, found that the right to
‘dignity at work’ included the right
not to be singled out for disciplinary
treatment in relation to a practice.
Ultimately, the comments of the Court
suggest that a prudent employer,
when it becomes aware of a common
practice, should be slow to initiate
a disciplinary process against only
one individual before conducting
a wider investigation. In the face of
competing duties (in this case, to
vulnerable children) this is not always
possible. However, an employer should
be cognisant of the requirement to
ultimately justify its actions.
LEARNING FROM RUFFLEY: KEY TAKEAWAYS FOR
EMPLOYERS
»» The Courts will engage in a
detailed examination of the factual
background of any bullying
complaints, regardless of the context
in which the complaints occur – it is
possible for behaviours occurring in
the context of a disciplinary process
to amount to bullying.
»» Finlay Geoghegan J noted that the
plaintiff’s claim was based on an
allegation of ‘corporate bullying’,
defined as allegation “that the
management of the enterprise is
implicated in the bullying activity.” The
Ruffley judgement is the first instance
in which the Court of Appeal has
considered this type of claim, and in
this regard the suggestion from Finlay
Geoghegan J that corporate bullying
arthurcox.com
and other cases of bullying activity
may be treated differently by the
courts in terms of the cause of action
and necessary proofs on the part of a
plaintiff is instructive for employers
dealing with these types of cases.
»» Whilst the Ruffley decision may
discourage employees from pursuing
personal injuries actions, employers
still need to take the time to ensure
that their procedures are robust and
fair to avoid exposing themselves to
large monetary awards.
»» The Court was divided in determining
whether the conduct of the school was
‘inappropriate’ and on the question of
what ‘could reasonably be regarded
as undermining the plaintiff’s right
to dignity at work’. It is therefore
important that employers understand
the meaning of these elements of the
definition of workplace bullying.
»» Employers should, when making
disciplinary decisions, ensure they are
in a position to justify their actions
based on objective criteria. An example
of a relevant consideration in this
case was the competing obligations
faced by the school to employees and
vulnerable service users.
A complete review of this case can be
found in the Arthur Cox Employment Law
Yearbook 2015 (Chapter 6), with further
commentary on the original High Court
decision available in the Arthur Cox
Employment Law Yearbook 2014.
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