A&L Goodbody LLP
May 28, 2014 - Ireland
Bullying - Recent Bullying And Harassment Cases Before the High Court
by A&L Goodbody
The High Court recently issued 2 important judgments on the topic of bullying in the workplace. In the first case the plaintiff was successful and in the second case the plaintiff's claim failed.
In the case of Una Ruffley v. the Board of Management of St. Anne's School (May 2014) a special needs assistant was awarded the sum of €255,276 in compensation and loss of earnings as a result of bullying which she suffered in the work place.
The bullying allegation arose out of an incident whereby the plaintiff was allegedly accused of locking the door to a "sensory room" in which she was working with a pupil. On foot of this a disciplinary process was commenced in relation to this incident and culminated in a final written warning some six months later. The Court found that the information supplied to the Board of Management tainted their view of events, finding that they were grossly misled. The Court was highly critical of the disciplinary process instigated by the school which it found to be grossly unfair and "utterly denied her the benefit to her constitutional right to natural justice and fair procedures".
In relation to the bullying aspect, O Neill J applied the reasoning used in the case of Quigley v Complex Tooling and Moulding Ltd  1 IR 349 where it was held by the Supreme Court that for conduct to amount to bullying it must be "repeated, inappropriate and undermining of the dignity of the employee". The plaintiff also cannot succeed unless he/she can show that he/she suffered damage amounting to personal injury as a result of the employer's breach. When such damage is not of a direct physical kind it must amount to an identifiable psychiatric injury. The plaintiff here suffered from an anxiety and depressive disorder and as such it was held that it fitted within the identifiable psychiatric injury test set down in the Quigley case. While no new law is established in the case, the size of the award is of concern to employers and shows the importance of personnel adhering to bullying policies precisely and remaining objective and impartial in investigating such claims.
In the second case (Glynn v Minister for Justice  IEHC 133), the High Court rejected a claim by a civil servant employed on clerical duties at a Garda station that she suffered stress as a result of being bullied and harassed. The case provides a useful set of guidelines in distinguishing between 3 key terms that are commonly and sometimes incorrectly interchanged in the context of workplace bullying, namely occupational stress, workplace stress and bullying.
Kearns J confirmed that occupational stress is not actionable. It is something which every employed person may experience at some stage of their working life and can occur for a variety of reasons many of which are unrelated to bullying. Workplace stress can be actionable if certain legal criteria are satisfied. It can however also be the result of behaviour which falls short of bullying. The differentiating factor is that it lacks the degree of deliberateness which is the hallmark of bullying. Bullying itself is more deliberate and is one "of the more obnoxious traits" in human behaviour. It involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct intended to reduce that person's self-worth. The High Court adopted the principles set out in Quigley v Complex Tooling and Moulding (referred to above) where the Supreme Court accepted the definition of bullying set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration Order) 2002 (SI No 17 of 2002) as "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 the definition may be an affront to dignity at work but as a once off incident, it is not considered to be bullying. This case also reiterates that bullying must involve an "objective" element and not comprise solely of a subjective test. He said that for reasons of common sense the test must be an objective one otherwise most employers would be vulnerable to allegations of bullying based purely on subjective perceptions of employees.
The takeaways from the above cases are the need to have a detailed bullying policy in place, so that if and when an incident arises an employer knows how to deal with it. The test to be applied in determining whether or not behaviour could be regarded as undermining the individual's right to dignity at work is an objective one and a once off action does not amount to bullying.
Please note that our speakers will be looking at the issue of workplace stress in more detail at our seminar on Tuesday 10th June.
For further information please contact a member of our Employment Team.