A synopsis of more recent stress at work and bullying cases
Bullying is defined in the Industrial Relations Act Code of Practice as
“Workplace Bullying is repeated inappropriate behavior, 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.”
This definition was adopted by the Court of Appeal and Supreme Court in Ruffley v. Board of Management St. Annes School.
In Sweeney v. Board of Management Ballinteer Community School (Unreported High Court (Herbert J.) 24/3/11) the plaintiff succeeded in a personal injury claim for bullying and harassment against a school. She had been home-school liaison coordinator and later a learning support teacher at the defendant school. The claimant was unsuccessful in applying for a post of responsibility and appealed that decision and argued that following that appeal the principal’s behaviour towards her was hostile and dismissive. The plaintiff made a formal complaint of bullying and harassment in October 2006 and the investigator decided that the plaintiff had not been bullied or harassed in the period to September 2006. The ruling of the court was that the court would not revisit the complaints that formed the subject matter of that investigation. The court found that the treatment by the principal of the plaintiff in the period following March 2007 amounted to bullying or harassment. The incidents of bullying upheld include inter alia the engagement by the principal, without the knowledge of the defendant’s board of management, of a private investigator to carry out covert surveillance of the plaintiff during college hours. This amounted to harassment of the plaintiff by him and was wholly inappropriate as a course of action to ensure the plaintiff was properly discharging her duties as home-school liaison co-ordination. The court found that the board of management was vicariously liable for this. The plaintiff had suffered clinical depression and was awarded damages, including aggravated damages and special damages totalling €88,625.
In Kelly v Bon Secours Health System Limited (Unreported High Court (Cross J.) 25/1/12) the plaintiff succeeded in a personal injury claim for bullying and harassment against the defendant. The court found the following incidents amounted to bullying
- In 2004 inter-personal difficulties arose in the records department between the plaintiff and a co-worker, of which the defendant was aware or ought to have been aware, but took no steps to deal with initially, as a result of which the plaintiff suffered stress
- The defendant appointed an external candidate to a permanent position, for which the plaintiff had applied, in breach of agreed procedures between management and unions relating to the selection of internal candidates. The court accepted the plaintiff’s view that the reason for the departure from the agreed procedures was because management viewed the plaintiff as “trouble” and did not want her to attain a permanent position.
- In 2005 the defendant suspended the plaintiff with pay and escorted her from the defendant’s premises following her refusal to sign a document, which the plaintiff claimed was an inaccurate record of what had occurred at an investigative meeting. The court was of the view that the plaintiff’s request that the defendant contact her union to facilitate correction to the said statement was not unreasonable conduct on the part of the plaintiff and that the plaintiff’s suspension was a breach of contract and constituted bullying and harassment by the defendant.
The court did not accept that there had been contributory negligence. The defendant had contended that the plaintiff had failed to participate in the defendant’s grievance procedure and failed to mitigate her loss and respond to the defendant’s transfer offer (the court was of the view the relationship between the parties had completely broken down at the time this offer was made). The court further rejected the defendant’s contention that the court was prevented from dealing with a number of the plaintiff’s complaints by reason of findings made by the Labour Relations Commission and an independent third party in respect of same. The court awarded the plaintiff €60,000 in general damages for the severe distress and insult suffered by the plaintiff.
In Brown v. Minister for Justice Equality And Law Reform 2013 ELR 57 the plaintiff had been a Garda for 33 years. He claimed damages for bullying and harassment procedure arising from bullying harassment. The court found there were incidents of bullying and harassment including the following:-
- The plaintiffs was refused permission to drive Garda vehicles for 8 years following an incident where the plaintiff wrongly left a vehicle outside Kilmainham Garda Station overnight and it was stolen. The court found the length of the ban was excessive.
- A member of An Garda Siochana had fraudulently put the plaintiff’s name and signature to a leaflet for a protest meeting suggesting that the plaintiff was involved in the meeting in a professional capacity.
- A criminal investigation was wrongly commenced against the plaintiff in relation to a claim for overtime on a day when the plaintiff had done overtime.
- In 2003 original statements in relation to a rape case were removed from the plaintiff’s locker. The court found on the balance of probabilities that this was done by another member of an Garda Siochana with the result of the plaintiff was subjected to a complaint by the victim of the crime for losing the evidence.
- In 2004 the plaintiff went out sick for stress for one week. As a result his superiors removed his firearm which was not returned to the plaintiff even though the only medical evidence available indicated that the plaintiff was fit to work with a firearm
- The defendant had failed to investigate the plaintiff’s complaints of bullying and harassment at various stages.
The plaintiff’s psychiatrist found that he suffered from adjustment disorder of moderate severity for 12 years and continuing. The court awarded general damages for psychiatric injury in the sum of €55,000. The court awarded loss of earnings in the sum of €5000. The court found that the incident at 2. amounted to defamation and awarded €25,000.
In Ruffley v. Board of Management of St Anne’s School (Unreported High Court 9/5/14) the court found that the plaintiff had been subjected to bullying and harassment at work in the period September 2009 to September 2010. The plaintiff was 45 years old and employed as a special needs assistant (SNA) in a school which catered for children with physical or intellectual disabilities. The plaintiff was minding a child with ADHD in a sensory room and she had locked the door from the inside. Arising from this, the plaintiff was given a final written warning lasting 18 months for breach of the health and safety. The principal had got the approval of the board of management for the final written warning but no hearing took place where the plaintiff could present her case, in particular the plaintiff had evidence from a number of other SNAs who admitted to locking the door to the sensory room from the inside and there was no clear policy against this, even if it was not good practice. Further the plaintiff complained that she was reprimanded by the principal for being late on a particular date when she was not late. The High Court found that the plaintiff suffered an anxiety and depressive disorder arising from treatment at work and had not worked since September 2010. The court awarded general damages for psychiatric injury to date of €75,000 plus general damages for psychiatric injury into the future of €40,000 plus special damages for loss of earnings of €93,276. The Court of Appeal allowed the appeal. The disciplinary process was flawed but this did not amount to bullying. Ryan P. gave twelve reasons why it did not constitute bullying. In particular he found this was “At worst… a botched disciplinary process and not a case of repeated offensive behaviour intended to destroy the plaintiff’s dignity at work”. Irvine J. held it did not amount to bullying – it was not repetitive inappropriate conduct which undermined the plaintiff’s right to dignity. The Supreme Court refused the appeal. O’Donnell J.found it had not been shown the employer acted in bad faith. A defective disciplinary process was not inappropriate behaviour for the purpose of the definition of bullying. The defective disciplinary process did not necessarily undermine the plaintiffs dignity at work. The question of whether malice by the employer was required was left open. It was not an essential requirement that the conduct be in public. Charlteton J. held it was not bullying. “The conduct was not at that extreme and repetitive level. It is, instead, a disciplinary process that has gone wrong. ”
In Lyons v. Longford Westmeath ETB 2017 IEHC 272 an external investigation held that the plaintiff, a deputy principal, had subjected a teacher to bullying. The High Court effectively quashed the decision on the basis that the plaintiff was not given the right to be legally represented and to cross-examine during the investigation.
The seminal case is now Ruffley v. Board of Management of St Anne’s School. To succeed, the set of facts must fit within the definition of bullying. In particular the conduct must be repeated and must undermine dignity. It will be easier to win if you can show malice by the persons engaging in the conduct.
Following previous cases McGrath v. Trintech Technologies Limited  4 IR 382, Maher v. Jabil Global Services Limited  ELR 233 and Berber v. Dunnes Stores Ltd.  ELR 61 where the plaintiff failed in personal injury claims for bullying and harassment at work, it might have been thought that it would be rare for a plaintiff to succeed in a personal injury claim of this nature. The more recent cases throw some doubt on this proposition. That said, in Glynn v. Minister for Justice (Unreported High Court 21/3/14 ) the plaintiff argued she was subjected to bullying and harassment in 2005, when she was asked to do finance duties for a numer of days, which resulting in a psychiatric injury. The court found for the defendant and preferred the evidence of the defendant’s witnesses. The appropriate test was that Hatton v. Sutherland. No other member of Gort Garda station offered evidence to suggest that there was a culture of workplace bullying there. The plaintiff had a history of stress and depression and the stress suffered in 2005 was attributable to life events outside of the employment.
In each case there were elements of the particulars of bullying and harassment which were upheld but also elements which were not upheld.
The cases indicate that the courts are not overly generous when it comes to psychiatric injury. In Brown v. Minister for Justice Equality And Law Reform the plaintiff was awarded €55,000 after suffering 12 years of psychiatric injury albeit the plaintiff could work during this period. As against this, Ruffley v. Board of Management of St Anne’s School saw the High Court award €115,000 general damages for psychiatric injury, even though the plaintiff had only been suffering for less than 5 years at that stage.
In Culkin v. Sligo County Council  IECA 104 the Court of Appeal determined that a claim for personal injury could proceed despite the claimant having run and lost a case before the Equality Tribunal based on similar facts. The rule in Henderson v. Henderson did not apply because the plaintiff was making claims in the court proceedings that could not be made in the EEA proceedings and vice versa. Further s.101.1 EEA 1998 had no application where a claim for breach of the equality clause was not made in the High Court proceedings. The HC trial judge might decide that elements of the claim should not succeed because they amounted to a collateral attach on the earlier Equality Tribunal decision.
The content of this article is intended to provide a general guide to the subject matter and is not intended to be a substitute for legal advice. Specialist advice should be sought about your specific circumstances.
Stephen O’Sullivan, Barrister