THE COURT OF APPEAL
Finlay Geoghegan J.
THE BOARD OF MANAGEMENT OF ST. ANNE’S SCHOOL
APPELLANT/DEFENDANT JUDGMENT of the President delivered on 8th December 2015
Summary of Factual Background
1. In the judgment of the High Court in this case, delivered on 9th May 2014, O’Neill J. awarded damages to the plaintiff, Ms. Una Ruffley, in the total sum of €255,276 and costs on foot of her claim for bullying and harassment in the course of her employment as a Special Needs Assistant in the defendant’s National School. The defendant appeals against the findings on liability and damages.
2. The school is a facility for children with physical or intellectual disabilities, and although it is a National School, it admits pupils aged between 4 and 18 years. It was founded by and is under the patronage of KARE, an organisation of parents which provides a wide range of services for children with disabilities that employs some 350 people. The Chief Executive Officer of KARE, Mr. Christy Lynch, is also the Chairman of the Board of Management of St. Anne’s School.
3. The plaintiff received a severe warning in a disciplinary process in the school because of an incident that occurred on 14th September 2009. In the course of her work on that date, she was with a pupil in a room used for individual therapy known as the Sensory Room when she became concerned and sought help because he unexpectedly fell asleep. The Principal was notified and came to the door but failed on three attempts to get into the room. The plaintiff, having returned to the room after calling for assistance, had locked the door from the inside. This became a matter of criticism first by the Principal of the school and subsequently by the Board of Management.
4. In response to the complaint, the plaintiff said that other Special Needs Assistants locked the Sensory Room door and, besides, the school authorities had not given any instruction that the door was not to be locked. There were also practical reasons for doing so: some children, including the particular pupil, had a tendency to run out of the room during therapy and sometimes other children interrupted the engagement by opening the door from outside.
5. The episode might have been forgotten had not another question arisen about the plaintiff’s conduct. The Principal had put in place a means of monitoring the particular pupil’s progress using the equipment in the Sensory Room over a 4-week period under the plaintiff’s guidance. Towards the end of the period, the class teacher to whom the plaintiff was assigned noted an entry that was wrong about the boy’s performance. The plaintiff had ticked a box on the monitoring form devised by the teacher that recorded his having achieved a goal that he had not done. The teacher was not satisfied to let the plaintiff correct the entry. The Principal thought this matter was serious and that it warranted re-activation of the original disciplinary issue. Thus, it came to the Chairman of the Board.
6. The Chairman was particularly concerned about the door locking which he considered very serious. He thought that it should have been obvious to special needs assistants because of their training that child safety demanded that such doors should be kept unlocked. He thought the matter should be referred to the Board, which happened on 23rd November 2009. That body decided that the plaintiff should be given a sanction just below dismissal in the form of a severe grade warning. There was delay in notifying the plaintiff, which was done on 21st December 2009 and confusion and mistaken information about how long it would remain on her record. At a meeting on 18th January 2010, the Principal told the plaintiff that the warning would stay for 18 months. The plaintiff said that she had been in contact with her Union and wanted to appeal the decision. On 20th January 2010, the plaintiff was given a letter signed by the Chairman confirming the sanction, in which there was reference to an investigation of the matter.
7. On 27th January 2010, there was a meeting between the Principal and the plaintiff that was intended to get closure on the matter but it gave rise to a complete conflict of evidence, with the plaintiff alleging that she was subjected to severe denigration by her superior that reduced her to tears. The Principal denied these allegations. The trial judge simply records in his judgment that he accepted the plaintiff’s evidence.
8. On 29th of January 2010, the plaintiff’s Union representative wrote to the Chairman appealing against the sanction imposed on the plaintiff on the grounds, first, that the process was unfair; secondly, that the school had not expressly prohibited locking the Sensory Room door and thirdly, that a final written warning was too severe a sanction. The writer made it clear that he was not suggesting that locking the Sensory Room was “acceptable, but rather, that the practice was known and had not been objected to previously”. There was no investigation and the response was a brief rejection.
9. The plaintiff’s solicitors wrote and the Board repudiated any allegation of wrongdoing and further correspondence debated the issues to and fro.
10. The plaintiff continued to work until September 2010, when the plaintiff experienced an otherwise minor exchange over alleged lateness for work as the last straw and went on certified sick leave due to work-related stress. She has remained out of work since then. Evidence on her behalf was that she sustained psychiatric injuries that prevented her working. Her employment has not terminated by resignation or dismissal.
11. The plaintiff claimed damages from the defendant, as her employers, for bullying and harassment occurring between the date of the Sensory Room incident on 14th September 2009, and the date when she ceased work, 27th September 2010.
12. The judge accepted the definition of Workplace Bullying in para. 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002):
13. In his judgment, the trial judge held 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.”
The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all consider the merits of the plaintiff’s case at this late stage when they were aware of the impact that there are now erroneous and unjust decision was having on the plaintiff was, in my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.”
“(a) up until March 2010, the Board might not have been aware of the merits of the plaintiff’s case about the sensory room door, notwithstanding that the principal was well aware of it;
(b) from March 2010 onwards, the Board knew what the plaintiff’s case was;
(c) from April 2010, the Board knew that other special needs assistants locked the door from time to time.
He said also that he was “quite satisfied 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
(1) that the behaviour of the school was inappropriate
(2) it was not an isolated incident but was persistent for more than a year
(3) the persistent, inappropriate behaviour “wholly undermined the plaintiff’s dignity at work.”
14. The judge held that the plaintiff suffered an anxiety and depressive disorder resulting from her reaction to what happened from September 2009 to September 2010 – that resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and inability to cope with everyday life. Those conditions, and the fear that she would not get a good reference, inhibited the plaintiff from seeking employment elsewhere so she had not worked since 27th September 2010.
15. The appeal to this Court is brought on three grounds: –
The Appellant’s Submissions
16. The Board of Management submitted that the High Court judge erred in law and in fact in determining that the plaintiff was subject to bullying and harassment, having regard to the legal definition of bullying and harassment as set out in para. (5) of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures For Addressing Bullying in the Workplace) (Declaration) Order.
1. The conduct of the school and its officers that the plaintiff complained about in this case, and which the trial judge found to have been proved, did not amount to bullying within the definition as accepted by the Supreme Court and by the High Court in previous judgments and as was accepted as the law in this case. What happened here was that there was a disciplinary process that was flawed. The defendants do not deny that the process was wholly defective but submit that that did not make it bullying.
2. There was an absence of evidence of causation in the case to connect any offensive conduct on the part of the school or its officers with the mental health issues that the plaintiff alleged had resulted from the way the school treated her.
3. This ground concerns the award of € 47,000 for loss of earnings into the future. The defendant/appellant protests that such a heading of damages was not actually claimed. It was not pleaded and neither was it provided in particulars under S.I. 391. Evidence was not given in the case as to how long it was going to take the plaintiff to get back to work.
17. The decision to issue a final written warning to the plaintiff in response to her action locking herself in a room alone with a particularly vulnerable child was a decision taken by the Board of Management and not by the Principal. The investigation in relation to the plaintiff locking herself in the Sensory Room alone with the child was appropriate and a matter which the plaintiff herself accepted should be dealt with by the school Principal. The decision to investigate this issue was not motivated by vindictiveness or an attempt to bully but rather a desire to deal appropriately with a child welfare issue.
18. The actions of the plaintiff in locking herself in a room alone with the child showed sufficient lack of professional judgement that the defendant deemed that a Stage IV warning, as per the school disciplinary procedure was an appropriate, proportionate and necessary response. It was submitted that regard should be had to the fact that certain members of the Board of Management had called for the dismissal of the plaintiff and the evidence was that Ms. Dempsey was not amongst those calling for dismissal of the plaintiff.
19. It was submitted that a failure by an employer to adopt fair or appropriate disciplinary procedures in respect of an employee does not constitute “bullying and harassment” within the definition of same approved in Quigley v. Complex Tooling & Moulding Ltd.  IESC 44, and Catherine Glynn v. Minister for Justice Equality and Law Reform, Ireland and The Attorney General  IEHC 133.
20. There had been no evidence that the defendant, its servants or agents, had been motivated “to humiliate and belittle the victim”. The defendant, its servants or agents, at all material times had been motivated by child welfare/protection issues.
21. It was submitted that in light of the child safety concerns, the action taken by the defendant was justified and did not constitute bullying. Furthermore, it is submitted that all complaints made by the plaintiff flow from the one incident i.e. the locking of the child and the plaintiff in the Sensory Room, and accordingly, there is no evidence of “repeated” behaviour.
22. The second ground advanced by the appellant is that the learned High Court judge failed to have any or any proper regard to the medical evidence adduced on behalf of the plaintiff which showed no causal connection between the allegations of bullying and harassment and the alleged personal injury sustained by the plaintiff.
23. In Quigley, the Supreme Court determined 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 employers breach of duty where the personal injury is not of a direct physical kind it must amount to an identifiable psychiatric injury.
24. Accordingly, the plaintiff assumes the onus of proof of establishing that such alleged bullying and harassment caused a discernible, identifiable psychiatric injury.
25. It was submitted that the plaintiff has failed to lead medical evidence to prove that she suffered a discernible psychiatric injury beyond what might be described as workplace or occupational stress. It was the plaintiff’s evidence that her first attendance with her General Practitioner in relation to her alleged work-related injury was on 19th August 2010, which was nearly a year after the first event giving rise to the proceedings. It is noted that this visit was towards the end of the 2010 summer holidays, a time when the plaintiff would have been absent from the work environment for a period of approximately six weeks. Furthermore, the plaintiff’s General Practitioner, Dr. McDonnell, accepted that the plaintiff did not attend with symptoms of depression on that date.
26. The third ground is that the learned High Court judge erred in law in assessing general damages in the sum of €115,000 and in assessing future loss of earnings in the sum of €47,000 and allowing the plaintiff loss of earnings to date. The plaintiff did not claim future loss of earnings. The award of damages was excessive, and in particular, the award of future loss of earnings was not appropriate in circumstances where this aspect of loss had not been pursued by the plaintiff at trial.
The Respondent’s Submissions
27. The plaintiff submitted that the actions of the appellant constituted workplace bullying. The plaintiff submitted that O’Neill J. faithfully followed the dicta of the Supreme Court in the case of Quigley v. Complex Tooling & Moulding Ltd.  I.R. 349. In relation to the acts of bullying being repeated, and inappropriate, the judgment is replete with references to incidents of bullying. It is not open to the defendant to suggest that the decision to issue the plaintiff with a final warning was not further bullying of by Ms. Dempsey, given that Ms. Dempsey had sought the support to issue a warning to the respondent.
28. The plaintiff contended that in the light of clear medical evidence adduced on behalf of Ms. Ruffley, a causal connection between the allegations of bullying and harassment and the alleged personal injuries sustained had been shown. Evidence from Dr. Alan Byrne (Consultant Psychiatrist) who diagnosed the plaintiff as having suffered a clinical depression, and Dr. Michael McDonnell (the plaintiff’s General Practitioner), who stated “I thought she was suffering from acute stress reaction, acute anxiety symptoms, she mentioned, she alleged that she was getting bullying and that her work situation was intolerable” and opined that the presenting symptoms which the plaintiff came to him with were consistent with those complaints. He went on to state that the plaintiff continued to suffer from severe anxiety symptoms and depression and that it had a fairly severe effect on the plaintiff.
39. In relation to general damages, the plaintiff’s life and career have been blighted by the bullying which is the subject of these proceedings. The medical evidence adduced on behalf of the plaintiff showed the seriousness of her complaints.
30. In relation to the future loss of earnings, it was, or should have been, obvious to the defendant that the plaintiff had an ongoing claim. The defendant is the employer of the plaintiff. After considerable difficulties, the plaintiff’s loss of earnings was agreed in the sum of €93,276.39. However, that loss of earnings was specifically only up to 6th March 2014. It was quite clear to all parties that the plaintiff (who had complained about the ongoing financial strain of being unemployed), had not worked since 27th October 2010, and that her loss of earnings was continuing. No attempt was made at any stage of the proceedings to suggest that the plaintiff (who still remains an employee of the defendant) ought to have returned to work at an earlier stage with the defendant, or could have obtained work elsewhere. The agreement of the defendant in relation to the plaintiff’s loss of earnings was subject to the defendant alleging that certain social welfare payments were to be deducted therefrom, but the defendant adduced no evidence to show any such deductible amounts.
31. S.I. No. 17/2002 contains the definition of Workplace Bullying which is set out above.
32. In Quigley v. Complex Tooling & Moulding Ltd.  1 I.R. at 349, the Supreme Court held that for conduct to amount to bullying it had to be repeated, inappropriate and undermining of the dignity of the employee at work. Furthermore, in his judgment, Fennelly J. said:
33. In Berber v Dunnes Stores Ltd.  IESC 10, the Supreme Court adopted the view expressed in Hatton and Sutherland as follows:
“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”.
34. In Maher v Gibol Global Services Ltd.  IEHC 130, the High Court considered the duty of care of an employer in relation to an employee who alleges that he suffered physical and mental health during the course of his employment. Clarke J. identified three questions which should be addressed:
“It is essential therefore, once the risk of harm from stress in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be temptation having concluded that some harm is foreseeable and that harm of that kind has taken place to go on to conclude that the employer is in breach of his duty of care in failing to prevent that harm (and that the breach of duty caused the harm) but in every case it is necessary to consider what the employer not only could but should have done”.
35. In Glynn v The Minister for Justice, Equality and Law Reform and The Attorney General  IEHC 133, the facts are stated as follows. The plaintiff had been employed as a civil servant since 1979, performing clerical and accounting duties for Gort Garda Station in County Galway. She told the Court she felt stressed owing to uncomfortable working conditions, bullying and harassment. She complained of an unfavourable working environment, indicated she was not awarded equal pay and states she had several problems working alongside Garda Callaghy. She visited her GP on several occasions and had various consultations with specialist medical advisers as she was ‘down, irritable and not coping’. She had a meeting with Superintendent Mockler in 1996 to discuss her workplace issues. He later telephoned the plaintiff at her home address, which the plaintiff alleged were harassing in nature. However, Superintendent Mockler believed the phone calls were part of the normal process in ensuring staff were helped and supported when experiencing problems in the workplace.. The plaintiff contacted Department of Justice to discuss her ongoing issues yet failed to attend the agreed meeting place on one particular occasion.
“Has the employee suffered an injury to his or her health as opposed as to what may be described as ordinary occupational stress, if so is that injury attributable to the workplace and if so was the harm suffered by the particular employee concerned reasonably foreseeable in all the circumstances”.
36. The Court held: “For an allegation of bullying to be actionable, the first question the Court must answer is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress. The legal definition of bullying was set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002. The relevant legal principles to be applied in this case were to be found in Hatton v. Sutherland  2 All ER 1. As there was ongoing construction work taking place at Gort Garda Station, compelling the plaintiff to carry out her duties in confined conditions, the judge noted that strained working relationships were not difficult to predict. The judge placed heavy reliance on the plaintiff’s failure to disclose her prior history of depression, stressing that such failure or omission was significant in terms of credibility. The judge questioned her failure to attend the arranged meeting with the Department of Justice to which no satisfactory explanation was given. In contrast, the judge found Superintendent Mockler a credible and reliable witness and rejected the allegations of harassment or bullying made against him. The judge commented that the allegations made by the plaintiff are synonymous with that of a one-off isolated incident rather than that of the repetitive conduct necessary to constitute bullying/harassment in the workplace. The judge gave weight to the fact that not one other employee of Gort Garda Station gave evidence to corroborate a culture of harassment or bullying in their place of work. The plaintiff failed to demonstrate that her stress was attributable to the matters complained of in this case”.
37. The approach to be taken by an appellate Court in regard to findings of fact made by a trial judge is well established. The trial judge's findings of fact on the evidence are not reviewable as to correctness by way of re-examination of the evidence. Inferences and deductions in a process of reasoning may be revisited. Conclusions based on examination of documentary material where this Court is in as good a position as the trial judge are of course open to reconsideration. In Hay v. O'Grady  I.L.R.M. 689, the Supreme Court declared that an appeal court is bound by findings of fact made by the trial judge which are supported by credible evidence, even if there appears to be a preponderance of testimony against them. This is because the trial judge has the advantage of hearing the evidence and observing the manner in which it is given and the demeanour of the witnesses. Where inferences of fact are derived from oral evidence the appeal court should be slow to differ. However, the appellate Tribunal is in as good a position as the trial judge in drawing inferences from circumstantial evidence.
38. It is of course important for the parties and for an appeal Court to understand the reasons why a trial judge made findings of fact. Failure to do so is inconsistent with the principles of reasoned decision making which the courts impose on administrative bodies. In a case where the judge adopts a strong view in favour of one side, it is good practice to reveal the decision maker's rationale. In this case, there are some trenchant findings on witness credibility which are justified by no more than a bald declaration of acceptance or preference.
39. The central issue in the appeal is whether the evidence established a case of bullying. That is the first and principal ground of the appeal. The other two grounds can be briefly decided. The second ground was that there was an absence of evidence of causation in the case to connect any offensive conduct on the part of the school or its officers with the mental health issues that the plaintiff alleged had resulted from the way the school treated her.
40. This point cannot succeed because there was clear medical evidence from the plaintiff’s General Practitioner and from a consultant psychiatrist which was accepted by the trial judge and which he was entitled to accept. The fact that there might be room for scepticism about the connection of the conduct complained about and the injuries alleged to have resulted does not furnish a ground of appeal. A trial judge is entitled to accept evidence that he or she has heard and it is not the function of the Court of Appeal to retry the case. This ground accordingly fails.
41. The third ground concerns the award of € 47,000 for loss of earnings into the future. The defendant/appellant protests that such a heading of damages was not actually claimed. It was not pleaded and neither was it provided in particulars under S.I. 391. Evidence was not given in the case as to how long it was going to take the plaintiff to get back to work. Since the loss of wages to date of trial was calculated at almost € 94,000, it may be that the trial judge divided the sum for past loss of earnings in half and made an award accordingly. In my view, this part of the award of damages cannot stand because there is no evidential basis for it and it was not part of the plaintiff' claim. Therefore, irrespective of the fate of ground number 1, I would reduce the damages by € 47,000.
42. Turning now to the first and fundamental ground, it is useful to begin with consideration in turn of the events involving the plaintiff during the relevant period.
43. On 15th September 2009, the plaintiff, in the course of a meeting in the Principal's office, was advised that her conduct in locking the door was being investigated in the context of a disciplinary procedure. This was not inappropriate or undermining of her dignity in the workplace.
44. The meeting with the Principal on the same afternoon, when she brought another Special Needs Assistant with her did not, on her own evidence, cause any concern. The meeting as the judge held centred on developing a programme to assess the progress of the child although there was some other discussion. Whatever about that, on the plaintiff's evidence she was not upset.
45. The meeting that took place between the Principal and the plaintiff on 18th September 2009 was not upsetting and seems to have been to decide on a date when the child's progress would be reviewed.
46. On 20th October 2009, all of the SNAs were advised not to lock the Sensory Room door. Again, no complaint can be made regarding the defendant's conduct in this regard.
47. Approximately four weeks later, the plaintiff met with Ms. Bramhall, in the course of which it was noted that the plaintiff had incorrectly filled in a form regarding the child's ability to use a swing. The plaintiff did not seem to take any exception to Ms. Bramhall's refusal to alter the former to insert the correct information.
48. The first action on the part of the defendant that might potentially be viewed as inappropriate, or as undermining of the plaintiff in the workplace, was the meeting with the Principal on 19th October 2009, in which the Principal characterised her error in relation to the completion of documentation concerning the child's ability to use the swing as some type of falsification. The plaintiff said she felt she was treated unfairly in the course of this meeting.
49. The trial judge was critical of Ms. Bramhall in implicit terms for recording the plaintiff’s entry on the form as “miscommunication”, and explicitly, of Ms Dempsey, the Principal, whose conduct in accusing the plaintiff of falsification he regarded as irrational at best, and he just stopped short of characterising it as being malicious. The evidence in the case, however, as fairly recorded by the judge, does permit a query as to the validity of such a trenchant condemnation. Another SNA had been more successful with the child on occasions when the plaintiff was on sick leave and Ms. Bramhall encouraged her to try to get him to use the equipment with her. The form only required a tick to confirm a positive achievement so it was not a complicated matter and unfamiliarity does not appear to be a convincing reason for error.
50. Accuracy in such circumstances is important. Irrespective of those considerations, the fact is that Ms. Bramhall, as the person in charge of the plaintiff, was not satisfied to accept that the wrong entry was simply a trivial error and so reported to the Principal. Ms. Dempsey challenged the plaintiff with having made a false entry, which the plaintiff denied.
51. It is difficult to see how the Principal was to be criticised for following up the information supplied by the teacher about her Special Needs Assistant. It may be that she was wrong in her inference or understanding of what Ms. Bramhall meant, but it is significant that the latter had been unwilling to overlook the matter. Even if either, or both the Principal and Ms. Bramhall was or were in error, it cannot be said that it was inappropriate because the issue was obviously relevant to their functions in the school and their responsibilities. The mere fact that a superior puts an allegation to an employee does not mean that he or she is bullying the person. In the circumstances, this encounter cannot be said to have been inappropriate.
52. Moreover, even if this was an unfair characterisation of the plaintiff’s actions in incorrectly completing the documentation, it was not an exchange which undermined her dignity at work.
53. While the plaintiff complained that a few days before 23rd November, she was told that her conduct was going to be discussed by the Board of Management, her own evidence was that she did not believe there would be any adverse outcome to that discussion, particularly as she was not furnished with any material that was being put before them. Hence, it is hard to see that this exchange between herself and the Principal could be viewed as bullying or undermining her dignity.
54. The plaintiff was not present at the Board meeting in November 2009 when the issue was brought up and the sanction was determined.
55. The next potentially relevant encounter in relation to bullying is the meeting on the 21st December 2009 when the Principal advised her that a final warning would be delivered after Christmas and that this would remain on her work record for a period of six months. This exchange was a one-off incident. The timing may have been harsh or thoughtless, but it cannot be viewed as part of repeated or inappropriate behaviour or which undermined the plaintiff's dignity in the workplace.
56. On 18th January 2010, the plaintiff met with the Principal and Mr. Lynch and was advised that she would get a formal warning that would be on record for 18 months. She was shocked and upset at this information. On the trial judge’s conclusion that she should not have been subjected to the disciplinary process, or that the process was unfair, those are not demonstrative that this meeting, the content whereof was not published to any of her work colleagues, was part of a sequence of repeated inappropriate behaviour that undermined her dignity in the workplace.
57. The promised warning letter was delivered on 20th January 2010. Perhaps the sanction was unfair, but it is hard again to see that receipt of a letter published solely to herself was one which could amount to bullying.
58. The next event that might be relevant in the context of the bullying claim is the meeting between the plaintiff and the Principal, allegedly to achieve closure, on 27th January 2010. The judge accepts that the plaintiff, in the course of that meeting, was denigrated and bullied. However, there were no witnesses to that exchange. The content of the exchange was not published to any third party. This event cannot be considered part of a pattern of repeated inappropriate behaviour that undermined the plaintiff’s dignity.
59. The correspondence, in which the Board stood over its decision, despite the points made in favour of the plaintiff, did not constitute bullying within the accepted meaning. Neither was its refusal to be moved by the results of the questionnaire completed by the plaintiff's colleagues. Its decision may have been wrong. It may have given no meaningful consideration to the fact that the plaintiff had established through her questionnaire that it was commonplace for the SNAs is to lock the door.
60. Finally, the minor incident of criticism of the plaintiff in respect of her alleged late arrival to school on 27th September 2010 cannot be considered bullying. The plaintiff may have been on time, as alleged. Perhaps the Principal was wrong or unfair, but it was not part of a repeated pattern of inappropriate and bullying behaviour.
61. Looking at the case more generally, the locked door was a proper matter of concern for the Principal and the Board. That is correctly acknowledged by the trial judge. The question of the wrong entry in the form was legitimate subject of inquiry by the Principal. Having said that, it is clear that the plaintiff was denied due process and she has real ground of complaint in that regard. The more serious the allegations, the greater the practical importance of fair procedures. In circumstances in which a person might have lost her job, the seriousness of the situation is beyond question.
62. The trial judge is right to be critical of the approach of the Board, not only to the denial of procedural fairness, but also to the severity of the punishment that was imposed. The circumstances that the plaintiff and her Union representative and solicitors put forward amounted at least to substantial mitigation, even if it was legitimate to consider that anybody working in child care should have known not to lock such a door.
63. The Union representative, Mr. Mullen, was entirely correct, in my view, in pointing out the procedural unfairness and the mitigating elements. He was also impressively realistic in his attitude to the locked door. It is noteworthy that this official, who might be considered to be very informed about issues of bullying, did not make any such allegation.
64. Essentially, the Principal and the Board overreacted and denied due process in a matter of legitimate concern without verifying the defence that the plaintiff put forward, but that is not workplace bullying.
65. Under this definition, and so far as relevant to this, case there has to be: –
Disciplinary matters are proper and appropriate for a Principal of the school and the Board of Management.
• Inappropriate behaviour
• direct or indirect
• conducted by Ms. Dempsey, with or without the addition of Mr. Lynch the Chairman and/or the Board or the other members
• which could reasonably be regarded as undermining the plaintiff’s right to dignity at work.
66. Was the behaviour repeated? My understanding of the meaning of this term is that it is the same behaviour or class of behaviour that is offensive and amounts to bullying. Name-calling or humiliating comments or practical jokes are examples. It is 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 mistaken or unfair, as repeated behaviour.
67. There is also difficulty in considering what happened as undermining the plaintiff’s right to dignity at work. It may have undermined the plaintiff’s work, or even her right to work, but it cannot properly be regarded as undermining her dignity. It is easy to see how name-calling etc. - what would be considered obvious examples of bullying - would and could be regarded as undermining the person’s dignity at work. Obviously, the fact that it may be different from other examples of bullying does not exclude this behaviour but it seems legitimate to look at how the plaintiff’s dignity was threatened.
68. In my view, if it was regarded as a serious matter for Ms. Ruffley to have behaved in the way she did in the Sensory Room on 14th September 2009, which is accepted by the judge as being a reasonable concern for the school, it was not a defence for her to point out that some of her colleagues on some occasions did the same thing, but I do think that would amount to substantial mitigation of the gravity of the offence. In those circumstances, it should have affected the punishment that was meted out, but I do not think it can be said that because or simply because others did the same thing, that necessarily meant that the disciplinary process was wholly unjustified. It was a case where this was discovered and Ms. Ruffley was the person who was responsible and there was no doubt about that, whereas there might well be an investigation and it might or might not disclose that others had done the same thing on some specific occasion, it strikes me as being a fairly doubtful proposition that any such investigation was going to yield clear evidence of the same having happened on some specific other occasion with such clarity or precision or evidence to furnish a basis of a disciplinary proceeding against somebody else.
69. The question in these circumstances is whether this chain of events constitutes bullying. It is clear that there is legitimate reason for complaint by Ms. Ruffley that she was treated harshly by the disciplinary process. It was not Ms. Dempsey’s original plan, as the evidence revealed, to institute disciplinary proceedings against here, but the Principal changed her mind when she found out about the form-filling incident as reported a month later by Ms. Bramhall. So now the situation changed. Enter the Chairman of the Board, Mr. Lynch, whose concern now became the locking of the door which he regarded at a level of seriousness above that taken by Ms. Dempsey. The Board went along with that. A severe sanction was imposed.
70. The Trade Union official’s letter was a reasonable one and should have resulted in a reconsideration of the situation and perhaps a fuller investigation or an investigation in the first place. The judge’s finding that there was not an investigation or a proper investigation at any reasonable or early enough time seems unchallengeable. The fact is that the school could have ascertained that what the plaintiff was asserting was actually correct. They could then have decided that it did not furnish a defence to the allegation, but nevertheless constituted a considerable mitigation.
71. The judge found that all this was inappropriate behaviour in the first place, a term that he took from the statutory definition of bullying. Then he decided that it was persistent because the process had continued in the way it did, and particularly in persisting beyond March 2010. This is where the question arises as to whether the trial judge’s findings can be upheld in regard to his conclusion about bullying. It seems to come down in the end to a question that this was a disciplinary process that went wrong. It was somewhat excessive and undoubtedly contrary to fair procedures in the first instance but it does seem to have been entirely genuine. The judge accepted that it was legitimate concern on the part of the school management to consider that locking the door was completely unacceptable practice. That was in the interest of child protection and also protection of the carers. So, there was a genuine and serious concern and the plaintiff had engaged in this behaviour about which there was a reasonable enough view that a person in her position should have known that this was not something that should have happened and was inappropriate, to use that term, for somebody in charge of children, particularly children with special needs which was the case here.
72. It may be that Ms. Dempsey was mistaken or that she made an exaggerated response to Ms. Bramhall’s form-filling revelation about the plaintiff. She had a situation where the plaintiff had come under adverse attention in the recent past and was now required to carry out a routine function and had not got it right and Ms. Dempsey had concluded that this was an example of falsification on the part of the plaintiff. So she decided that it was going to the Board and then perhaps Mr. Lynch was entitled to take the strong view that he did – that appears to be the implication of the learned trial judge’s comments and findings.
73. Overall, it seems to me that the required elements of a bullying case have not been established here. Accepting all the criticisms that were made by the trial judge of the process and of Ms. Dempsey and of Mr. Lynch and the Board, here was a process that was engaged in that emanated from serious concerns. It is not that they were just and reasonable in their conclusions. The judge, as I see it, was entitled to come to the conclusion that the Board was quite wrong in its views. He was also justified in coming to the conclusion that Ms. Dempsey arrived at a bizarre decision that there was fabrication. But he does not find that Ms. Dempsey contrived this whole process for the purpose of getting at the plaintiff and neither did Mr. Lynch nor was there any suggestion that he did so. So in circumstances where the Principal of the school and the Chairman of the Board were entitled to be concerned about a matter and were entitled to investigate it, but failed to investigate it, and mistakenly therefore or wrongly implicated the plaintiff, not in a matter for which she might not be criticised, but in a matter whose degree was not of the level that the Board considered it had reached. They were not entitled to consider the matter at the level that they did. So my view is that that does not amount to bullying in law and I think that is a subject that has to be examined in more detail.
74. This was not a case of bullying because:-
75. I would accordingly allow the appeal.
(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 interest 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 is 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 interest 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 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. This is not such a case.