What legally constitutes Workplace Bullying and Harassment?
A workplace bullying case: The Supreme Court recently heard the case of Ruffley Board of Management of St Anne’s School. This was an eagerly awaited decision. In fact, O’Donnell J – delivering the Supreme Court’s unanimous judgment – actually remarked that “this is a case which will set the
benchmark for bullying going forward”. In essence, the outcome of this case was the establishment of a higher threshold to be met to determine workplace bullying.
Definition of workplace bullying
As a starting point, it is worth considering prior case law in relation to workplace bullying. The seminal case on bullying in this jurisdiction prior to this case was the 2008 case
of Quigley v Complex Tooling and Moulding Ltd. In this case, the trial judge found that the plaintiff was subjected to extensive and humiliating scrutiny by the defendant’s plant manager. He also made comments about the plaintiff’s work, suggesting that the plaintiff was not capable of the most basic duties. The behaviour complained of happened numerous times and over a prolonged period. Both the plaintiff and the defendant agreed that the applicable definition of bullying was the one set down in paragraph 5 of the Industrial Relations Act 1999 (Code of Practice Detailing Procedures for Addressing Bullying in the Work Pince) (Declaration) Order 2002. This states: “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 High Court honed in on the following points: to be considered bullying, behaviour must be:
- Repeated,
- Inappropriate and
- Capable of undermining the Plaintiff’s dignity at work.
Mr Justice Fennelly, delivering the Supreme Court judgment, readily accepted that the plaintiff’s case met the above criteria for bullying. However, the Supreme Court was not satisfied that the psychiatric injury complained of by the plaintiff had been caused by this bullying, so the High Court decision was ultimately overturned.
International approach
In Ruffley, Mr Justice O’Donnell also thought it was worth considering the international approach to workplace bullying. For instance, Britain’s Protection from Harassment Act 1997 stipulated that conduct “must be grave” to be considered bullying.
In the English case of Wainwright v Home Office, Lord Hoffman observed “in institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners, but I am not sure that the right way to deal with it is always by litigation.”
Judge O’Donnell also made reference to the US approach to this situation by referencing the 1977 American Restatement of Torts (Second), which states that the conduct to cause emotional distress must be “conduct which, in the eyes of decent men and women in a civilised community, is considered outrageous and intolerable”. The principal conclusion that O’Donnell J drew from considering international common law comparators is that “the injury must be measurable and the conduct severe”.
High Court case
The plaintiff succeeded in the High Court and was awarded €225,276.39, constituted of €115,000 general and €140,276.39 loss of earnings. The decision of the High Court was overturned by the Court of Appeal. The Court of Appeal, in applying the test set out in Quigley, was not satisfied that the plaintiff had met the threshold to establish bullying. The matter was then appealed by the plaintiff to the Supreme Court.
Supreme Court
The question the Supreme Court addressed was whether the defendant’s behaviour was repeated, inappropriate, and capable of undermining dignity at work. Justice O’Donnell noted that each component can be considered separately and sequentially. However, he cautioned against viewing these three matters as separate and self-standing issues. For instance, when considering the question of repeated conduct, it is necessary to remember that what is required to be repeated is inappropriate conduct undermining the individual’s dignity at work, and not merely that the plaintiff be able to point to more than one incident of which he or she complains.
O’Donnell J noted that the plaintiff’s case was that the behaviour was inappropriate because it was a breach of fair procedures. He did not agree. Inappropriate behaviour does not need to be unlawful or erroneous, but it is instead behaviour that is inappropriate at a human level. “Purposely undermining an individual, targeting them for special negative treatment, the manipulation of their reputation, social exclusion or isolation, intimidation, aggressive or obscene behaviour, jokes which are obviously offensive to one person, intrusion by pestering, spying and stalking – these examples all share the feature that they are unacceptable at the level of human interaction.” He accepted that it was inappropriate behaviour when Ms Ruffley was caused to be reduced to tears at a meeting. The process used to discipline Ms. Ruffley was deemed unfair, flawed, and liable to be quashed or declared invalid or unlawful, but that does not make it inappropriate as envisioned by the test.
O’Donnell J felt that possibly the most important component of this definition was the question of undermining dignity at work. The Supreme Court felt that the plaintiff’s argument in approaching this limb of the test drained it of much of its meaning: the conduct was said to be repeated because more than one event was relied upon, inappropriate because it is a breach of fair procedures and, accordingly, it must have been undermining of dignity at work. He believed that the word ‘dignity’ has a distinct moral component. He noted that the question of ‘dignity’ was dealt with in a number of important Constitutional cases. He said that the denial of fair procedures is “never a trivial matter”, but he did not think it could be comfortably said to be undermining of human dignity.
This Supreme Court judgment has raised the threshold required for plaintiffs to meet in order to establish that workplace bullying has actually taken place. The judgment is careful to note the distinction between an unfair process and actual bullying. Another important component of the decision is the manner in which the court linked the three separate elements of the test and noting that each separate element must be met. For instance, just because behaviour happens more than once does not mean it is repeated for the purposes of this test. Just because behaviour is inappropriate, it does not mean that it is automatically undermining to dignity at work.
Hurley v An Póst [2018]
This case involved allegations of both vicarious liability and workplace bullying. Here, the claimant alleged that An Póst was liable for a once off act of aggression that another employee had conducted against them. Following this incident the complainant had taken a number of weeks’ sick leave. During this time, the employee who had committed the aggression against the complainant had been disciplined and subsequently dismissed from their post. Upon their return to work, the complainant suffered further prolonged bullying at the hands of other employees within the workplace in response to the incident that occurred. The complainant alleged that An Póst was also responsible for the subsequent bullying which occurred.
The high court held that An Póst was not liable for the initial act of aggression which had occurred, but that they were liable for the subsequent bullying which took place. This was due to An Póst’s knowledge of the alleged bullying and failure to address the bullying in a meaningful way. It was held that An Póst had failed to protect the complainant under s. 8 of the Safety Health and Welfare at Work Act, 2005, and that she had suffered moderate PTSD as a result. The plaintiff was awarded €161,133.00 for damages, with €50k awarded for pain and suffering.
The main lesson for employers which can be deduced from this case is that it is important to address allegations of workplace bullying from the offset rather than to take a passive stance.
NOTE: This article is for information purposes only; specific legal advice should be taken before relying on information in this article.
If you are seeking employment law advice regarding workplace bullying and harrassment, we would be delighted to assist you, call Sarah in confidence on 021-425-1843 or e-mail her at sarahhalpin@halpinsolicitors.ie.
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