Workplace Bullying – The Supreme Court Settles The Law
On 26 May 2017 the Supreme Court decided Ruffley and The Board of Management of St Anne’s School and in so doing settled numerous questions which had arisen with respect to the law on workplace bullying in Ireland and in particular the circumstances in which workplace conduct on the part of colleagues, or the employer itself, which causes personal injury (invariably psychological in nature) will be actionable.
The plaintiff had been employed as a Special Needs Assistant (SNA) in St. Anne’s School and was, over a 12-month period between September 2009 and September 2010, the subject of a flawed disciplinary process conducted by the school. She instituted personal injury proceedings alleging that she was bullied through the imposition on her of the flawed process and that she had, by reason of that process, suffered personal injury in the form of a stress- related illness. In the High Court, the plaintiff’s claim was successful and she was awarded damages in the sum of €255,276. The defendant appealed.
On appeal, the Court of Appeal by majority (Ryan P and Irvine J) allowed the defendant’s appeal.
The Supreme Court granted leave to appeal on two questions, namely:
- whether an unfairly carried out disciplinary process resulting in psychiatric injury is, in itself, capable of being actionable in damages on the basis that it amounts to workplace bullying without evidence of malicious intent on the part of the employer; and
- whether behaviour not witnessed by other persons in the workplace is capable of undermining the dignity of the
In order to address the appeal fully, it became necessary for the Supreme Court to range beyond the permitted grounds of appeal.
The Supreme Court unanimously dismissed the appeal .
O’Donnell J summarised the disciplinary proceedings that were at the heart of this case in the following terms:
“10 Overall, what occurred here, in my view at least, is an unfortunately not unusual instance of a flawed procedure. Many similar examples are regularly encountered in courts. Many defective and flawed procedures are carried out and where appropriate the courts will declare them invalid or quash them pursuant to judicial review. Here however the plaintiff claims that these matters have had a serious impact on her mental health and sought to recover substantial damages as a result.
27 With the exception of the incident on the 27th January, 2010, when the plaintiff was reduced to tears, and to which the High Court judge does not appear to have attributed critical significance, there is no suggestion of personally offensive behaviour. … Here the complaint relates to unfair procedures in a disciplinary process including what was alleged to be the unfair singling out of the plaintiff for punishment for conduct which others had admitted to, and which the trial judge considered a common practice and perhaps in any event, not unduly serious.
This is not to say that such matters cannot constitute bullying, but rather that it compounds the difficulty of this case, that it involves conduct which on any view is at the margins of conduct alleged to be bullying.
32 It is also important to keep in mind the role of fair procedures in this case. …it is not necessary to establish a breach of fair procedures to succeed in a bullying claim, and conversely, the presence of unfair procedures does not establish bullying.
Bullying often involves a question as to how something was done rather than what was done. In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual. It is important therefore not to blur the distinction between these two different claims by assuming that there is any logical connection between a breach of procedures, and a claim of bullying entitling a party to substantial damages.”
Injury that is psychiatric in nature
The Supreme Court noted in particular the difficulty in approaching personal injury claims where the claimed injury is mental or psychiatric in nature.
O’Donnell J dealt with the matter as follows:
“58 It is sufficient for present purposes to observe that in dealing with claims that an individual who claims to suffer a mental or psychiatric injury as a result of the wrongful act of another, the common law has proceeded cautiously. In those cases where recovery is permitted, the common law has sought to set a number of limiting devices, and in particular a requirement that the injury must be measurable and the conduct severe. … Few people subjected to reprimand or discipline accept it stoically: it is human nature to be offended and indeed to experience a sense of injustice and resentment, all the more so if there is some justification. If bullying claims may be maintained in any such circumstance, and are not clearly and precisely defined, then prudent employers may opt to avoid the action which exposes them to the risk.
This is not to say that bullying should be tolerated, or that victims should not be compensated nor indeed that employers should not adapt their behaviour to protect employees from bullying either director or indirect. It does suggest however, that as Oliver Wendell Holmes observed quoting Plato’s Phaedrus, that when making a new rule, the law should seek “to carve nature at its joint”. In this case that means setting a test which achieves the objective of compensating the victim of a serious wrongdoing, deterring damaging behaviour, and encouraging prudent and sensible practices without encouraging a proliferation of claims more generally, and inhibiting workplace activity to an excessive degree.”
Definition of workplace bullying
In each of the High Court, the Court of Appeal and the Supreme Court the definition of workplace bullying  contained in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) Declaration Order 2002 was accepted and extensively analysed. In particular all of the judgments address the terms ‘repeated’, ‘inappropriate behaviour’ and ‘reasonably … undermining … dignity at work’, each of which terms features in the definition.
O’Donnell J elaborated on the interpretation of these terms;
“60 I … agree that each component can usefully be considered separately and sequentially. However I would caution against viewing these three matters as separate and self-standing issues as if in a statutory definition. To some extent these terms take their colour from each other and the concepts are incremental. It is, in my view, important for example to recognise that in 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.
Ultimately, while analysis may be facilitated by looking at the separate elements, it must be remembered that it is a single definition and a single test: was the defendant guilty of repeated inappropriate behaviour against the plaintiff which could reasonably be regarded as undermining the individual’s right to dignity at work?”
Further contextualising the manner in which ‘repeated’ and ‘inappropriate’ are to be considered, O’Donnell J stated:
“62 In my view, a telling feature of the definition used in the 2002 Order and adopted in the case law is the distinctive language used in the statutory definition. At each point the statutory drafter has chosen a term at a markedly elevated point in the register: conduct must be repeated, not merely consist of a number of incidents; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.”
Charleton J dealt with the question in the following terms:
“19. The test requires all of the elements to be fulfilled. It should be considered sequentially. It is objective. Not subjective. It cannot be right to formulate liability on the basis of how people see the conduct of their colleagues in the workplace, but instead only on the basis of how that conduct would be objectively viewed; … An employer is entitled to expect ordinary robustness from its employees … Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.
In addressing whether the behaviour complained of is ‘repeated’, different interpretations are taken in the judgments in the High Court, the Court of Appeal and the Supreme Court.
In the Supreme Court, O’Donnell J addressed the matter as follows:
“63 I agree that the concept of repeated behaviour can usefully be contrasted with an isolated or once-off incident, but I do not think it can be defined negatively, as merely something that is not ‘once-off ’ or ‘isolated’. It is not enough to point to two different events. What must be repeated is inappropriate behaviour undermining the personal dignity of the individual. That is relevant in this case in two respects. First, it is noteworthy that the plaintiff relies on the conduct of a number of different individuals. Second, the core complaints relates to a flawed disciplinary process, or unfair procedures. In considering such unfair procedures as part of a claim for the invalidity of a disciplinary process, it is appropriate to take into account a number of events. But the reality of the plaintiff ’s claim here is that overall the process was unfair. It is not sufficient in my view to say that because that process extended over a period of time and a number of different events that it necessarily therefore satisfied the requirement that the conduct be ‘repeated’… It is not enough that what is alleged to constitute unfair procedures is comprised of a number of different steps unless each of those steps can be said in themselves to be inappropriate and undermine human dignity.”
O’Donnell J did not consider this to be the most important aspect of the case as he considered it dependent on whether a defective and flawed disciplinary process can be ‘inappropriate behaviour’ for the purposes of the definition.
In essence, what was at issue was whether the institution by the defendant school of a disciplinary process against the plaintiff was or could have been considered to be ‘inappropriate’ and accordingly as potentially constituting bullying, assuming that the other requirements of the definition were met.
O’Donnell J considered the matter in the following terms:
“64 It is suggested that the behaviour here is inappropriate because it was in breach of fair procedures. I cannot agree. Inappropriate behaviour does not necessarily need to be unlawful, erroneous or a procedure liable to be quashed or otherwise wrong in law: it is instead behaviour which is inappropriate at a human level. The test looks to the question of propriety in human relations, rather than legality. Again, the more familiar examples of bullying illustrate this. 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…”
Dignity at work
O’Donnell J considered the issue of ‘dignity at work’ to be perhaps the most important aspect of the definition, and considered it insufficient to simply assume the undermining of the individual’s dignity as an outcome of repeated and inappropriate behaviour, as opposed to a distinct component of bullying:
“66 In my view, the manner in which the plaintiff ’s argument approaches this limb of the test drains it of much of its meaning. The conduct is said to be repeated because more than one event is relied upon. It is inappropriate because it is in breach of fair procedures, and accordingly, it must be undermining of dignity at work…In my view for the reasons already set out, it seems to me that the requirement of conduct undermining dignity at work is a separate, distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.
67 The word dignity, carries a considerable charge with a distinct moral component. …The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.
68… I accept that the “singling out” or “targeting” of an individual for disciplinary purposes is capable of being a component of bullying. However, the use of the verb in these formulations is important. It is not enough in my view that after the fact it is possible to say that a person has objectively been treated differently and worse than others in a similar situation, even if that in certain circumstances may give rise to a different claim. I accept for example as set out at paragraph 43 above that in the context of dismissal proceedings, an apparent deviation from prior practice may itself be evidence of unfairness. But in many cases in which it can be said a person has been ‘targeted’ or ‘singled out’ for disciplinary sanction and which constitutes at least part of a finding of bullying, the fact of a general practice will have been known to the superior prior to the initiation of any disciplinary process, and in such circumstances may give rise to the inference that the disciplinary proceedings are not being pursued bona fide because of a concern about the practice or behaviour, but rather as a form of punishing and perhaps humiliating the individual concerned.
69 In my view that is not what occurred here…
Improper motive and conduct not witnessed by third parties
The Supreme Court also addressed two questions on which leave to appeal was given by the Supreme Court, namely:
- the impact (if any) on each of the three components of a finding of improper motive (or intent or a lack of bona fides) on the part of the putative wrongdoer; and
- the relevance to the second and third components of publication to others by the putative wrongdoer of the actions complained of as distinct from circumstances where others are not made aware of those
In relation to the need for improper motive, O’Donnell J addressed this matter in the following terms:
“71… In most cases of bullying it will be obvious that there is malicious intent. However so long as the cause of action remains a subhead of the employer’s duty of care, it is difficult to see that intent on the part of the bully is an essential feature of the claim: the employer owes a duty of care to the employee to protect them from conduct or matters causing distress amounting to a recognisable psychiatric injury. That duty also extends to workplace stress claims which may have no individual actor involved. It is difficult to see why, if the employer’s duty is to protect an employee from conduct which is damaging, that there should be a necessity that the conduct be actuated by malicious intent. The so-called corporate liability for bullying is slightly different. The conduct must be intentional and calculated to cause distress. I would reserve the question whether malice, in the sense of intent to injure, is an essential component of such a claim. But even if not, malice is not certainly irrelevant. A claim for bullying will certainly be strengthened significantly by proof of malice. Consciousness on the part of the victim (and others) that they are being pursued vindictively will certainly make it easier to establish that conduct was inappropriate and undermined dignity at work…”
In relation to conduct not witnessed by third parties, O’Donnell J addressed the issue succinctly;
“71… On the second question, I consider further that conduct which occurs in private can be a component of a claim for bullying. It is possible to treat someone inappropriately and undermine their dignity, without that conduct being witnessed. Again however any element of humiliation in public will certainly strengthen a claim.”
Of particular interest is the manner in which the Supreme Court dealt with corporate bullying – ie conduct on the part of the employer or the employer’s management that might constitute bullying.
Charleton J dealt with the matter as follows:
“7. There are two strands of potential liability for a plaintiff to employ against a bully. Firstly, conduct may be so egregious, deliberate and malicious as to engage the rule in Wilkinson v Downton , cited above. In so far as there may be a debate as to whether corporate bullying is a separate tort, this first strand of liability seems to provide the answer. For an employer to persistently and repeatedly engage in unnecessary and nasty conduct over an appreciable time outside the ordinarily tolerated range of correction or discipline necessary in the workplace, in such a way as to undermine the employee’s dignity, so that coming to work becomes not merely difficult but dreaded, according to the standards of robust human reaction, is to engage that tort where organic depression or other physical illness is the consequence. The standard has to be set at a level where giving advice, telling people off, temperamental reaction or emotional interaction is not allowed to disrupt the duty of managers to see that work is done, and the entitlement to healthy satisfaction that actually justifying one’s wages represents. In this context, joining in an unacceptable standard of conduct may engage an employer in the intentional infliction of harm.
8. That line of liability, however, does not seem to be one which has been analysed to a plaintiff ’s success in any written decision concerned with bullying to Most probably that is so because the tort retains an intentional element which most often may be inferred from the evidence, if it is not otherwise admitted, perhaps in an internal workplace email, but where, as in the original case, the conduct carries obvious connotations. The analysis in the various judgments of the Supreme Court in Britain … also indicates a debate as to the precise elements of this tort. In that and in other English cases, there has been doubt cast on the definition provided in Salmond and Heuston on Torts (21st edition, London, 1996) at p 215, which provides that one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it”. The principle, however, must remain that an individual who, through utterly unacceptable conduct, deliberately distresses another to the point where they suffer a recognised psychiatric condition, is liable in damages.
The so-called corporate liability for bullying is slightly different. The conduct must be intentional and calculated to cause distress. I would reserve the question whether malice, in the sense of intent to injure, is an essential component of such a claim. But even if not, malice is not certainly irrelevant. A claim for bullying will certainly be strengthened significantly by proof of malice. Consciousness on the part of the victim (and others) that they are being pursued vindictively will certainly make it easier to establish that conduct was inappropriate and undermined dignity at work.”
The Supreme Court has, to a significant degree, clarified the approach to the widely accepted definition of workplace bullying and, by so doing, limited the circumstances in which an employer will be found liable in damages for personal injuries suffered as a consequence of claimed workplace bullying, whether carried out by a colleague or alleged to constitute corporate bullying.
 Separate judgments were given by O’Donnell J and Charleton J with whom other five members of the Court (Denham CJ, McKechnie J, MacMenamin J, Dunne J, O’Malley J)
 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 An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off inci- dent, is not considered to be bullying”.
 Wilkinson v Downton ( 2 QB 57) is the leading authority on the tort of intentionally inflicting emotional suffering on In this case, the defendant played a practical joke on the plaintiff, claiming that her husband had been seriously injured in an accident. This caused the plaintiff to experience a violent shock which resulted in serious injuries. Liability was imposed on the basis that the defendant had ‘wilfully done an act calculated to cause physical harm to the plaintiff’. Here, the phrase ‘calculated’ connotes an objective likelihood of a high degree, rather than requiring a specific subjective intent.
The fullest analysis of this principle in Ireland is to be found in the Circuit Court judgment of Haugh J in Cronin v Kostal Ireland ((1 December 2005) CC) where the plaintiff suffered from depression and a change of personality as a result of disciplinary proceedings due to her refusal to engage with a new workplace system to check on employee productivity. Her claim for damages for and psychological injury was unsuccessful, with Haugh J noting:
“One is not entitled to seek damages for mere bad manners or mere sensitivity, but there is however an action known to the law of tort that entitles a person to compensation when they suffer a recognised psychiatric consequences of harassment, that is inexcusable conduct intentionally or recklessly handed out. Before he can succeed in an action for the wilful or reckless inflection of emotional harm there must be a form of harassment or a form of misconduct formed on the part of the defendant that any right-thinking person would consider to be gratuitous or reprehensible. It must be done either with the intention of humiliating or embarrassing the butt of the harassment, or it must be done where there is a risk of such an adverse reaction and that risk is unjustifiably run.”
In Cronin, Haugh J noted that management was entitled to ask employees to account for their productivity and to invoke disciplinary proceedings where they failed to do so, and as such, this was not the kind of behaviour that was designed to humiliate the plaintiff. To succeed in this type of action, the plaintiff would have to show that the conduct complained of was done with the intention of causing her to suffer a psychological injury, or that such an injury should have been foreseeable to the individual meting out the behaviour, and they unjustifiably saw fit to take that risk. O’Donnell J approaches the question of corporate bullying in similar terms.