Supreme Court dismisses bullying claim against school, noting procedural flaws but refusing repayment of stay payment.

SUPREME COURT

Appeal No: 2016/24

Denham C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O’Malley J.

Between/

Úna Ruffley

Appellant

AND

The Board of Management of St. Anne’s School

Respondent

Judgment of O’Donnell J. delivered the 26th of May 2017

1 This case has already been the subject of a detailed High Court judgment (Ó’Néill J.), [2014] I.E.H.C. 235, and three considered

judgments of the Court of Appeal, [2015] I.E.C.A. 287. Normally in such circumstances, it would not be necessary to repeat the facts

in particular detail. However, this is an unusual case, and since there has been considerable disagreement as to how to characterise

the facts in this case, it is necessary to give some account of the background to this complex case.

2 By the time of the events in 2009 and 2010 which are the subject matter of these proceedings, the plaintiff, Úna Ruffley, had been

employed as a Special Needs Assistant (“SNA”) in St. Anne’s School at the Curragh, County Kildare for more than ten years, without

notable incident. That school, although treated as a national school, catered exclusively for children with intellectual disabilities and

indeed took children from the age of 4 up to 18 years of age. The school had been founded by KARE, an organisation of parents of

children with physical and intellectual disabilities. St. Anne’s was under the patronage of KARE, and the Chief Executive of that body,

Mr. Christy Lynch, was also the Chairman of the Board of Management of St. Anne’s.

3 St. Anne’s is a small institution catering for between 70 and 75 children, and in 2009 employed 14 teachers and 26 SNAs. The

school also had available to it external services such as occupational therapy. It was not in dispute that until the events here

described, she had performed her work satisfactorily, and enjoyed good relations with the teachers, others SNAs and the principal,

Ms. Dempsey, who figures significantly in the account of this case.

4 For about five years prior to September 2009, the school had a sensory room used to develop the sensory perception of pupils by

exposing them to a variety of experiences such as music, vibration, movement, light and colour. The room had previously been used

as a store room for computer equipment. It could be locked from the outside with a key, although the evidence was that was never

used. It could also be closed from the inside by simply turning a lock to either open or close the door in a fashion which it was said

was similar to that in use on a standard toilet door. That lock gave rise to a dispute which has meant that Ms. Ruffley has not worked

in St. Anne’s or anywhere else for more than 6 years now, and has led, through an eleven day hearing in the High Court, and a two

day appeal to the Court of Appeal, to this Court.

5 The Events

(i) 14th September 2009

On this day Ms. Ruffley was in the room working with a young pupil. Unusually, as he was normally an extremely active child who

suffered from ADHD, he fell fast asleep. Ms. Ruffley went out and phoned the teacher Ms. Rachel Bramhall, to ask for instructions. She

was told to leave the child asleep, and if he had not awoken within 20 minutes to bring him back to the class. The teacher however

being concerned contacted the headmistress in turn. Ms. Dempsey went to the room where she discovered that the door had been

locked from the inside, and only gained entry on her third attempt. However, the issue of the door being locked was not raised then.

(ii) 15th September 2009

The following day Ms. Ruffley attended work and was asked by Ms. Dempsey to come to her office. Once there, Ms. Dempsey

informed her that she was handling the incident as a disciplinary matter. Ms. Ruffley initially thought that this was because the child

had been asleep, but Ms. Dempsey explained it was because the door had been locked. It appears from Ms. Dempsey’s note referred

to in the judgment of the High Court that Ms. Ruffley said at this point that she hoped the principal would deal with the other SNAs

that did this. The principal’s response was apparently that this was another issue for another day. Ms. Ruffley was requested to

return to the office at 2.30pm and informed that someone could attend with her, if she wished.

(iii) 15th September 2009: 2.30pm

Ms. Ruffley returned to the principal’s office accompanied by Ms. Louise Webb, a fellow SNA. The principal had also arranged for Ms.

Bramhall, the teacher involved, to be there also. Ms. Ruffley accepted that she had locked the door and said it had been her practice

to do so for a number of years both to prevent other pupils entering and disrupting the session and to prevent children, some of

whom were very active, from running out of the room. Such children were often described as “runners” and as it happened the child

involved here was known to be a “runner”. Ms. Ruffley also claimed that the door had been locked on other occasions including one in

April 2009, when she alleged the principal had brought visitors to the room. Ms. Dempsey responded apparently that she had never

been aware that the room had been locked and if so would have raised the issue. There was some further discussion of the care of

the child in question. It is not suggested that any specific disciplinary action was discussed or suggested at this meeting.

(iv) 18th September 2009

There was a further meeting between Ms. Ruffley, the principal, and Ms. Bramhall. This meeting discussed the care to be given to the

child, and it was agreed that over a four week period the plaintiff would complete a weekly form indicating the manner in which the

therapy for the child had progressed.

Letter of the 18th September 2009 ( ?)

It is important to note at the outset, that this letter is disputed. The principal gave evidence however that she had handed a letter

to Ms. Ruffley dated the 18th September, 2009. That letter recorded that as Ms. Ruffley did not appear clear as to the protocol

surrounding the use of the room “we are not going to take disciplinary action”. The letter also recorded however that Ms. Ruffley’s

care of the child in question would be reviewed over a three month period. It continued “if the required improvement is not made or if

there is any such breach of discipline in any aspect of your work performance, this may result in disciplinary action”. The plaintiff

emphatically denied ever having received the letter and the trial judge accepted she had not been given that letter then or since.

(v) Four weeks later (October 2009)

In the review, Ms. Bramhall observed that Ms Ruffley had ticked a box on the forms indicating that she had succeeded in getting the

child to lie on the swing, which was an item of equipment in the room, and one recognised measurement of progress. This was queried

by Ms. Bramhall, and the plaintiff immediately confirmed that she was wrong and asked to correct the form. The teacher refused to do

so and recorded this matter on the form as a “miscommunication”.

(vi) 19th October 2009

A further meeting took place between the plaintiff and the principal Ms. Dempsey. The plaintiff contended that the events of this

meeting took place on the 12th November, 2009, but the trial judge considered that she was wrong in this regard at least. At the

meeting, the principal challenged the plaintiff in relation to the completion of the form, in part erroneously because she thought the

child was not supposed to use the swing. She considered that the incorrect completion of the form amounted to falsification and a

further disciplinary issue which justified her in bringing the matter to the Board. The trial judge found that the plaintiff made it clear at

this meeting that she considered she was being treated unfairly. The trial judge considered that the form and the plaintiff’s error in

that regard had been used by the principal “as a trap for the plaintiff”. (para.35 of the High Court judgment).

(vii) 12th November 2009

There was a further meeting between the plaintiff and the principal as a result of which the plaintiff was moved to another teacher’s

classroom. According to the principal, this was necessitated because Ms. Bramhall with whom the plaintiff had been working was

leaving the school. It was not suggested that there was anything sinister in this move, and the new teacher confirmed that the

plaintiff had worked satisfactorily in the classroom thereafter.

(viii) 23rd November 2009: Board Meeting

The principal considered that she should bring the matter of the plaintiff’s performance to the attention of the board meeting which

was held on this date. She spoke to the chairman, Mr. Lynch, in advance, who readily agreed to the matter being raised as he

considered that the locking of the door was wholly unacceptable because of the child protection implications involved. The plaintiff

was told in advance of the meeting that the matter was going to be raised, but not given any further details. In the discussions with

the Board, the plaintiff was not identified. The minutes of the Board meeting recorded that the principal outlined “issues” she had with

an individual SNA. She wanted the support of the Board to issue a verbal or written warning and the Board agreed. Evidence was

given in relation to this meeting by both the principal Ms. Dempsey, and the chairman Mr Lynch. It appears that the other four

members of the Board, who it was suggested were parents of children attending the school, wanted the plaintiff to be instantly

dismissed and it took some persuasion from Ms. Dempsey and the chairman to dissuade them.

The Paragraph 48 Findings

At paragraph 48 of his judgment, the trial judge made important findings about this meeting:

“The evidence of Ms. Dempsey was that she outlined the full history of the matter to the Board. The extreme, if not,

downright intemperate, reaction of the Board to whatever they were told, suggests as a matter of probability, the

account given by Ms. Dempsey to the Board of the history of the matter was almost certainly untrue, highly biased,

coloured, and grossly and unfairly damnified the plaintiff. Whilst I would readily accept that the members of the Board

would be hyper-vigilant on all issues relating to child protection, and rightly so, as a group of probably fair-minded people,

I do not think they would have reached conclusion so adverse to the plaintiff, unless grossly misled as to the true

circumstances prevailing.”

There is no doubt that the plaintiff was not informed of the detail of what was said, was not invited to the meeting, or allowed to be

represented or given any opportunity of having her views conveyed to the Board. The trial judge concluded at paragraph 50:

“To say that the conduct of Ms. Dempsey in relation to the lead up to this Board meeting and what happened at it was a

departure from all the norms of natural justice is a feeble understatement.”

(ix) 21st December 2009

Nothing, however, was said to the plaintiff in the immediate aftermath of the meeting. It appears that the principal was to obtain

advice and liaise with Human Resources in KARE. On the 21st December, 2009, just before the Christmas holidays, she informed the

plaintiff that she was to get a Final Stage part four warning and would be given a formal notification in the New Year. When asked

how long the warning would remain in place, Ms. Dempsey told the plaintiff that it would be on her file for six months.

(x) 18th January 2010

Whilst on yard duty, the plaintiff was asked to come to a meeting in the principal’s office with the principal and Mr. Lynch. The

plaintiff was accompanied by a fellow SNA. She was told by Mr. Lynch that she would receive a Final Stage part four warning which

would be on her record for 18 months. This period was specified because it appeared that this was provided for in the disciplinary

policy and the reference to six months given before Christmas was a mistake. The trial judge found that the plaintiff indicated

dissatisfaction and said she had been in touch with her union IMPACT and she wanted to appeal the decision.

(xi) 20th January 2010

The plaintiff called to the principal’s office and was handed a copy of the letter from the Board of Management signed by Mr. Lynch.

While the letter informed the plaintiff of the sanction, and the period of 18 months during which it would remain on her file, it

contained the following statement:

“This warning is being issued as a result of the investigation which was carried out at the request of the Board of

management in to an incident that occurred on the 14th of September 2009, whereby you locked yourself and a child into

the Sensory Room.”

The trial judge pointed out in his judgment that no investigation had been held into the matter whether at the request of the board or

otherwise.

(xii) 27th January 2010

The plaintiff was asked to come to a meeting with Ms. Dempsey which it was said was to get “closure” on the matter. There was a

total conflict of evidence as to what transpired. The trial judge accepted the plaintiff’s evidence that she was subjected to a variety

of denigration which “belittled, humiliated and reduced her to tears”. (para.64)

(xiii) 29th January 2010

The plaintiff’s union representative, Mr. Phillip Mullen of IMPACT, wrote to Mr. Lynch referring to the final warning issued and stating

that they wished to appeal on the following grounds:

“(1) Process: we believe that the process applied to the investigation did not accord Ms. Ruffley the right to adequately

defend herself.

(2) The procedures in place in St. Anne’s had not made it clear that locking the safety room was a health and safety

breach. That is not to say it was acceptable, but rather, that the practice was known and had not been objected to

previously.

(3) Sanction: We believe that given the circumstances a final written warning is too severe a sanction in this case.

I would very much welcome an opportunity to elaborate on these points at your convenience and would appreciate if you

would let me have copies of the relevant documentation (disciplinary procedure, original complaint, minutes of meetings,

etc.).

I would also appreciate if you could confirm of any other disciplinary matters relating to Ms. Ruffley are outstanding.

I look forward to your early response.”

(xiv) 23rd March 2010

A meeting was arranged between Mr. Lynch, Ms. Dempsey, the plaintiff and Mr. Mullen. As a result of the meeting Mr Lynch asked the

principal to ascertain whether or not there was a practice of locking the door. Ms. Dempsey said she had asked approximately 70% of

SNAs, none of whom admitted to locking the door. Immediately after this meeting the plaintiff devised a rudimentary questionnaire

which she distributed to her colleagues. It only contained two questions: “Have you ever locked the sensory room door?” and “Have

you ever been asked by Pauline Dempsey ‘have you ever locked the Sensory Room Door?’”. Four colleagues answered, all of whom

answered the first question “yes”. One of the colleagues answered the second question “no”.

(xv) 22nd April 2010

Mr. Mullen wrote to Mr. Lynch attaching a copy of the questionnaire and asking that it be taken into account and asking to be

informed of the Board’s decision.

(xvi) 26th April 2010

There was a Board meeting which discussed the letter.

(xvii) 20th May 2010

Mr. Lynch wrote to Mr. Mullen responding that the Board stood over its original decision.

(xviii) 8th June 2010

There was a further Board meeting which referred to the correspondence and appears to have endorsed the decision to stand over

the original sanction. The trial judge was satisfied that the Board did not give any meaningful consideration to the contention that

there was a common practice of locking the room.

(xix) 27th May 2010 or 22nd June 2010

A letter was sent to the school by the plaintiff’s solicitors. There is confusion as to the date on the letter, but none as to the

contents. The letter required the Board to acknowledge that they had received confirmation from other staff that it was “common

practice that the sensory room was locked” and demanded an apology to Ms Ruffley. It appears that it was contended in this letter

that the plaintiff had been bullied and harassed.

(xx) 24th September 2010

The Board sent a lengthy reply to the plaintiff’s solicitors. On the question of any practice of locking the door, it said:

“Whilst it may very well may be that from time to time it would appear that certain members of staff have, on very rare

occasions, seen fit to lock the door of the Sensory Room at St. Anne’s School, this is not the policy of the school and it is

strongly advised that members of staff not do this, for reasons as we are sure you will understand, that include the

safety and wellbeing, not only of the children, but also the staff member concerned.”

The letter concluded:

“You are correct in saying that IMPACT represented your client at various points in the course of correspondence about

this matter. It was indicated to your client at that time that so long as everything ran smoothly, there should be no

reason to revisit these matters. The fact that they are now being revisited is a matter entirely for your client who failed

to see what, if anything is to be gained at this stage in continuing with this correspondence.”

The trial judge considered that this paragraph of the letter was a “further rebuff” by the defendant of the plaintiff’s primary assertion

namely that the locking of the sensory door was a common practice among SNAs; a practice, which the earlier paragraph appeared to

implicitly, if not expressly, acknowledge to have existed.

(xxi) 24th September 2010

The principal appears to have informed staff on this occasion that the door of the sensory room should not be locked. Thereafter

there was further correspondence between the solicitors and the school. The trial judge concluded that the plaintiff had done her

utmost to pursue her grievance through the internal procedure of the defendant.

6 The matters set out above appear to be the matters upon which the trial judge made his findings of liability. However, he also

recorded a further event of the 27th September, 2010, when a further incident occurred within the school. The plaintiff contended

that she had arrived on time but had moved her car because there was car park line painting going on. When she went back into the

school, she was reprimanded by the principal for being late. As the trial judge observed this would normally be a trivial incident and of

little consequence, but for the plaintiff it was the last straw and she left work on that occasion and, regrettably has not returned to

the school, or, it appears, worked anywhere else.

Observations on the Facts

7 I have set out the events in this case comprehensively because much of the difference of opinion in this case depends on the

assessment of the cumulative impact of the individual events, many of them unremarkable in themselves. It is I think useful to analyse

these matters in a little more detail. Although the entire process complained of occupied a year between September 2009 and

September 2010, all the incidents of direct engagement with the plaintiff occurred between September 2009 and March 2010 (with

the exception of the events just recorded which occurred in September 2010 leading to the plaintiff taking sick leave). Indeed, the

meetings between Ms. Ruffley, Ms. Dempsey and others, occurred between September and January 2010. Some of these meetings

cannot reasonably be the subject of any complaint such as the meeting on the 18th September, 2009, agreeing that the plaintiff’s

care of the child would be monitored or the meeting of the 12th November, 2009, to rearrange the plaintiff’s work with a new teacher.

Other matters recorded such as the communication of an incorrect period of time for the duration of the warning, do not appear

significant. The trial judge’s most trenchant criticisms were directed towards the procedure. This analysis suggests that the plaintiff’s

essential complaint was what was done (i.e. the procedures adopted or the lack of them) rather than the manner in which it was

done (personal remarks, or offensive behaviour etc). Indeed the object of most criticism is a meeting (23rd November, 2009) at which

the plaintiff was not present and, was not identified by name to the members of the Board and whose identity was not known to

anyone other than the principal and the chairman. What is alleged therefore is that the disciplinary process should not have been

contemplated, or continued once she raised the question of other SNAs locking the door, the treatment of the incorrect completion of

the form as a serious matter justifying the reactivation of the disciplinary issues, the fact that she was not represented at the Board

meeting which decided to issue the warning to her, the excessive nature of that sanction, and the fact that the Board considered an

appeal against its own decision. The Court of Appeal was correct in my view therefore to identify the core issue as whether a claim

for unfair procedures leading to an unfair result could itself amount to bullying.

Fair Procedures

8 One difficulty of this case however is that although it was framed with a heavy emphasis on fairness of procedures, (and indeed it

was conceded that the procedures were flawed, even botched), the claim was not directed to a declaration of invalidity of a process

or any sanction. There was therefore no close analysis of the precise manner in which a requirement for fair procedures was not

adhered to. This was a small school. The core incident itself was not in dispute. The principal was the witness to the fact that the

door was locked, and that was not disputed as a matter of fact. Nor indeed does it appear to be disputed that it was inappropriate

and improper to lock the door. It is said, and I agree, that once the plaintiff maintained that this was a common practice among

SNAs, that that question should have been addressed at least having regard to the sanction to be imposed, and on the judge’s view,

in order to consider whether the disciplinary process should be pursued at all. There is also no doubt that at a minimum, Ms. Ruffley

ought to have been able to have been able to put her side of the story to the Board, and put forward any evidence in support of her

position. I do not think that any elaborate hearing was required, but in any event none was provided. Perhaps one of the difficulties

of this case is paradoxically if there had been a stark conflict of evidence, it might have been more apparent that a hearing was

necessary. However, no hearing of any sort was held. Furthermore, it was probably undesirable that Ms. Dempsey should take any

part in the decision (even though it appears that she argued for a lesser sanction). Although her account was not being contested in

relation to the question of whether the door was locked or not, and no allegation had yet been made against her, nevertheless she

was a participant in the matter. For all these reasons, and perhaps more, the procedure was clearly defective and liable to be so

declared by any court. For my part however, I do not see anything malicious in the way in which this was carried out, and more

importantly there was no such finding by the judge. It is not unusual that in small institutions which do not have extensive human

resources expertise, (and sometimes even in businesses with such expertise) that errors can be made, particularly in cases which

appear obvious, and where the sanction does not involve suspension or dismissal.

9 It is also said that the fact that the Board considered Ms. Ruffley’s appeal was itself a further egregious breach of fair procedures.

Certainly, if this was considered to be an appeal it would be plainly wrong that the same body would hear an appeal against itself.

However, Mr. Mullen of IMPACT who made the “appeal” appears to have directed it to the Board, and did not raise any issue as to the

composition of the Board hearing the matter. It is not suggested there is a provision for appeal in the disciplinary procedures which

applied, nor is an appeal a necessary component of a fair procedure. In the nature of this school, there could be no prospect of an

internal appeal to another body. However, if this process was simply considered to be a review, or a reconsideration of a decision,

then it is not so obviously flawed as a procedure. I do not think that too much should be read into the use of the word “appeal” by

Mr. Mullen, unless it was specifically contended that this disciplinary code required such an appeal and was being invoked. If the

Board had reconsidered the entire matter and removed the sanction, I do not think it would be said that the procedure was itself

flawed simply because the Board had reconsidered the issue, even under the rubric of “appeal”.

10 In my view, the reconsideration by the Board of this matter did not cure the defects of the original Board meeting decision of the

23rd November, 2009, but in my view at least, it did not itself constitute a separate heading of unfair procedures. 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.

11 The plaintiff had experienced two earlier incidents of depression, one post-partum, and one in reaction to bereavements. During

the period of the events set out above, she suffered from headaches, insomnia, diarrhoea and anxiety which her GP put down to

stress-related bullying. Evidence was given by a psychiatrist, Dr. Byrne, that her past periods of depression meant that she was

predisposed to further depressive illness. The trial judge was satisfied that she suffered from an Anxiety and Depressive Disorder

resulting in a high state of anxiety, loss of confidence and inability to cope with life. On review in 2014, she was found to be suffering

from a severe anxiety state and severe depression although the judge thought it probable that at this stage the impending litigation

was worsening her symptoms. He also concluded that it was probable that “when this litigation is concluded, there is likely to be

significant improvement in her anxiety and depressive state”.

12 The trial judge concluded that the matters set out above constituted bullying. He accepted the definition of bullying found in the

2002 Code of Practice Detailing Procedures for Addressing Bullying in the Work Place, (Declaration) Order 2002 (S.I. No. 17/2002) 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.”

This has been accepted as an appropriate working definition for the purposes of the claim.

13 At paragraph 63, the trial judge concluded that the treatment throughout the process of the plaintiff by the principal was entirely

“inappropriate” within the meaning of the definition. At paragraph 88, he concluded:

“Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants

was not merely an isolated incident but was persistent over a period of in excess one year. There can be no doubt but

that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”

Accordingly he concluded that she was entitled to damages calculated as follows:

Psychiatric injury to date €75,000.

Future psychiatric injury €40,000.

Loss of earnings up to 6th March 2014 €93,276.39

Future loss of earnings €47,000

Total: €255,276.39

Proceedings on Appeal

Court of Appeal

14 The Court of Appeal by a majority (Ryan P., Irvine J.; Finlay Geoghegan J. dissenting) allowed the defendant’s appeal. It appears

to have been accepted however that there was no evidence supporting the claim to future loss of earnings and that amount should

be deducted leaving the award in issue at €208,276. Ryan P. reviewed the evidence carefully and in some detail. His conclusions on

the matter were set out succinctly at paragraph 74 of his judgment.

“This was not a case of bullying because:-

(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 interests 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 was 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 interests 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 the 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.”

15 For her part, Irvine J., having conducted a careful review of the evidence and the law, agreed with the conclusions of the Ryan P.

She focused on the requirement that the conduct be repeated, inappropriate and undermines dignity. She considered in particular

that to constitute repetition, the events relied on had to be reasonably proximate to each other otherwise there might be no more

than individualised stated events. She gave the example where three events occurring within a month of each other might amount to

bullying, whereas the same three events occurring over a three year period would not. She did not consider that the conduct of a

body acting outside its jurisdiction should be considered to be “inappropriate” in the sense intended by the definition of bullying. She

accepted however that a right to dignity at work entitled a person to be treated with reasonable fairness. She also considered that

while in most cases of bullying there would be a public element to the undermining of the dignity of the individual, it was not essential

that the conduct occur in public. Irvine J. concluded however that the matters alleged here did not amount to bullying. She was

critical of the inferences drawn by the trial judge. Two in particular are illustrative. First, she addressed the conclusion that it could

be inferred from what the High Court concluded was the ‘“downright intemperate” sanction imposed” that the Board at its meeting of

the 23rd November, 2009, had been given an “almost certainly untrue, highly biased, coloured” account by Ms. Dempsey of the

plaintiff’s conduct which “grossly and unfairly damnified the plaintiff”. Of this Irvine J. said at paragraph 74:

“Once again, I regret to say I am not satisfied that this inference, can objectively be sustained by reference to the

evidence. First, there was Mr. Lynch’s unchallenged evidence that Ms. Dempsey favoured the imposition of a grade 2 or

grade 3 warning and was against a more severe sanction. Secondly, even when it could be stated with absolute certainty

that the board was fully aware of the plaintiff’s case, namely that other SNAs locked the door and that she had not been

instructed not to do this, it was unwilling to withdraw the sanction which it had considered appropriate to impose. Thirdly,

it was never suggested to Mr. Lynch, the chairman of the board, in the course of cross-examination that Ms. Dempsey

had presented the case to the board in the manner so found by the trial judge.”

16 Irvine J. was also not prepared to accept the inference that no proper consideration was given to the facts of the plaintiff’s case

before the Board rejected her appeal. At paragraph 82-84 of her judgment she said:

“82. As to the inference drawn by the trial judge that no proper consideration was given to the facts of the plaintiff’s

case before the board rejected her appeal, I have to say that this is an inference about which I have grave reservations

particularly in circumstances where Mr. Lynch, the chairman of the board, was never challenged on the matter.

83. Leaving that fact aside, I ask myself what could be the matters to which the trial judge considered the board did not

give consideration? It had received in writing the case made by IMPACT in its letter of the 29th January, 2010. That letter

referred to the fact that Ms. Ruffley was making the case that it had not been made clear to her that it was a health and

safety breach to lock the sensory room door and that the practice had not previously been objected to. The board also

had the second letter from IMPACT enclosing the result of Ms. Ruffley’s questionnaire of the 22nd April, 2010, to

demonstrate that other SNAs had also engaged in the same practice. It also had the details of the submissions made by

Mr. Mullen on Ms. Ruffley’s behalf at the meeting set up following the receipt of the appeal.

84. It seems to me that the trial judge’s inference that the plaintiff's case was not properly considered can only be

ascribed to his subjective view that such was the strength of the plaintiff’s case that the board would have reversed its

decision if it had properly applied its mind to the full facts.

17 The conclusion to which Irvine J. came was set out at paragraphs 94 and 95 of her judgment:

“94. All of these factors afforded the plaintiff substantial grounds upon which she might have instituted plenary

proceedings seeking a declaration as to the invalidity of both the original decision of the board and the decision which it

made on the appeal. For whatever reason, she chose to eschew such an approach in favour of an action for damages for

breach of duty on the part of her employer in respect of bullying in the workplace.

95. However, the fact that the board may have conducted the investigative and disciplinary process in the hopelessly

flawed manner last described does not bring its conduct anywhere close to meeting the definition of bullying as set out in

Quigley. On the facts of this particular case, objectively ascertained, the defendant could not be considered guilty of the

type of repetitive inappropriate conduct which undermined the plaintiff's right to dignity in the workplace for a period of

over a year as was found by the trial judge.”

18 Finlay Geoghegan J. dissented. Her judgment is particularly relied on by the appellant in this appeal. She observed that while the

claim was often referred to colloquially as a claim for bullying, it had been said that there was no separate tort of bullying or

harassment. See: Kelly v. Bon Secours Heath System Limited [2012] I.E.H.C. 21, and Nyhan v. Commissioner of An Garda Síochána &

anor [2012] I.E.H.C. 229. The claim was a species of a claim for breach of the general duty owed by an employer to an employee.

She considered that the necessary “proofs on the part of the plaintiff may differ” depending on whether the alleged perpetrator was a

fellow employee or whether the conduct alleged to constitute bullying was carried out by the employer or management. She cited

with approval an extract from a leading work, McMahon & Binchy, Law of Torts, 4th Ed., (Dublin: Bloomsbury, 2013), at para. 18.80:

“There is no distinctive tort of bullying or harassment. The question is to be resolved in the context of employers’ liability,

by asking whether the employers took reasonable care not to expose the plaintiff to the risk of injury from such conduct.

The answer will depend in large part on what facts ought to have been known to the employer. Naturally, matters are

different where the plaintiff’s claim is that he or she is the victim of ‘corporate bullying’, where the allegation is that the

management of the enterprise is implicated in the bullying activity. Such claims have succeeded in some recent cases,

and failed in others.”

19 In a careful judgment, the learned judge addressed this definition. She concluded that “repeated” behaviour was to be contrasted

with the “isolated incident” or the “once-off” incident also referred to in the code of practice. While the consideration of what

behaviour would constitute “repeated” for the purposes of the test “must depend on an assessment of all the facts”, a disciplinary

process which continued over a number of months with several interactions between the plaintiff, the principal, and the chairman,

could not “be considered to be either an isolated incident or a once-off incident.” (para 20).

20 Finlay Geoghegan J. also considered that it was also difficult and probably dangerous to try and define at a level of principle what

would be the threshold for “inappropriate” behaviour. In a workplace context that had to depend on the relationship and relative

positions of the individual and the “full factual context”. She was satisfied however that the behaviour here was indeed inappropriate.

21 Finally, Finlay Geoghegan J. addressed the question of conduct undermining the right to dignity at work. In this case she found

that satisfied by the breach of fair procedures in this case:

“Where as on the facts of this case the Court is considering the right of the plaintiff as [an] employee to dignity at work

in a context of her treatment by the Principal of the school and the board of management in relation to a disciplinary

process such right to dignity must include, it appears to me, a right to be treated with respect, fairly and not less

favourably than other colleagues in a similar position. It must include a right not to be singled out for disciplinary

treatment in relation to a practice which whilst not acceptable was engaged in by other similar colleagues. It is obvious

that an employee must expect, in a situation where it is contended that his or her performance has been less than what

is expected or required that she may be subjected to a disciplinary process. However, it appears to me that her right to

dignity at work includes a right to be treated with respect and fairly in the above sense and not singled out unfairly from

colleagues in a similar position in such [a] disciplinary process.” (para.22)

22 At paragraph 43 of her judgment, Finlay Geoghegan J. made it clear that she was not relying on the inferences drawn by the trial

judge at paragraph 48 which had been challenged by the defendant. However, she considered that the remaining evidence justified a

finding of bullying, and accordingly upheld the award of damages subject only to the deduction of the award in future loss of earnings.

Supreme Court

23 In its determination [2016] I.E.S.C.DET. 52, the Supreme Court granted the appellant leave to appeal on two questions:

1) 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.

2) Whether behaviour not witnessed by other persons in the workplace is capable of undermining the dignity of an

employee.

During the hearing of the appeal, it became apparent that to address only these issues might not result in a complete resolution of

the case, since even if both questions were answered positively that would not necessarily lead to the overturning of the decision of

the Court of Appeal. Accordingly the Court invited the parties to address the question more comprehensively and to consider if the

finding of bullying by the High Court was sustainable, because if that were the case, it would follow that the decision of the Court of

Appeal should be reversed. However, this meant that the Court did not perhaps have the range of materials and depth of submissions

as might have been provided if the broader issue had been addressed from the outset, and so my conclusions as to the law must be

subject to some qualification and the possibility of refinement in future cases.

24 It should be noted that prior to the granting of leave in this case, there had already been some brief discussion in this Court about

what constitutes bullying in the workplace in Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 I.R. 349. In that case the plaintiff

had worked in a business for 21 years and had become the 4th most senior employee. The business changed hands on a number of

occasions before being acquired by the defendant, and later closed down. Evidence was given by the plaintiff and others of the

“terrible domineering demeanour” of the new plant manager towards the plaintiff. A shop steward described “the animosity of the

plant manager” towards the plaintiff. Other evidence was given of humiliating behaviour by the plant manager and the new managing

director when discussing a voluntary redundancy package, and of humiliating and demeaning references to the plaintiff being made to

other employees about the plaintiff. The manager often stood on a box only eight feet behind the plaintiff’s work station “with the

effect of intimidating the plaintiff”. Other remarks were made suggesting the plaintiff was not capable of performing even basic

functions, and needed “some broom training”. Neither the plant manager nor the former managing director were called in evidence so

the detailed evidence of victimisation was not challenged.

At page 371, Fennelly J. accepted counsel for the defendant’s submission that:

“bullying must be:-

• repeated;

• inappropriate;

• undermining of the dignity of the employee at work.”

Fennelly J. elaborated further on the issue of bullying in the context of causation, observing at page 372 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 employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an

identifiable psychiatric injury.

25 The trial judge in this case referred to the above dicta of Fennelly J. in Quigley. Although Fennelly J. recognised the “comparative

novelty of the cause of action” in Quigley, he observed that the Court “[had] not been asked to decide any principles of law” because

“the parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.” (pp.

368-369). In any event, the appeal was allowed on a question of causation. It is the case that Fennelly J. stated that the conduct

there amply met the criteria of being repeated, inappropriate and undermining of the dignity of the plaintiff at work. It will be useful to

compare the facts of Quigley to the current proceedings, but it remains the case that this case presents the first opportunity for the

Supreme Court to give extended consideration to the law of bullying in the workplace.

Discussion

26 This case raises a number of issues. First, as counsel for the appellant observed at the outset of the appeal, the case may appear

to be a storm in a teacup. The core issue whether a door should have been locked, or perhaps more precisely what the school

(principal, chairperson and Board) should have done once it became aware of the fact and that Ms. Ruffley was contending that this

was a common practice, seems a relatively minor and routine matter that ought to have been capable of being addressed in a small

school where personal relationships were important and where the plaintiff had worked for 10 years. Hindsight is easy, but it is difficult

to think that it would not have been better for all sides if this had been sorted out with more sensitivity and goodwill at any of the

number of points on which it may have been possible to resolve it without litigation, and perhaps most obviously when the plaintiff’s

union became involved. That would have avoided the stress and considerable expense of a High Court action extending over 11 days

trawling through the minutiae of personal relationships.

27 I think it is clear that the case is not one that fits squarely into the core understanding of bullying at work. Although questions of

unfair dismissal and bullying can overlap (such as in Quigley and Eastwood v. Magnox Electric [2004] U.K.H.L. 35 referred to therein),

I am not aware of any case which presents the issue raised in this case of unfair procedures being alleged, without more, to

constitute bullying or where a bullying claim relied on similar matters. Although there is an oblique reference at paragraph 61 of the

High Court judgment that the behaviour of the principal was hard to understand without an element of bad faith, it is not alleged or

found that there was any individual personal animosity traceable to any incident or event. The behaviour was considered to be

‘strange’, ‘odd’ and ‘difficult to understand’ but not malicious. Indeed the Board was unaware of the identity of the plaintiff when they

made the initial decision, so there can be no inference of personal animus on the part of the other Board members. Yet they were the

members pressing for the most severe sanction. 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. It is not suggested that there was ridicule, personal antagonism, or exclusion from a group. Nor was

there shouting in public, or the making of disparaging remarks in public or private about work, appearance, gender or sexuality, status

or racial origin. There is no allegation of intimidation or the circulation of damaging gossip, or the use of aggressive and obscene

language or repeated requests to do tasks which were either menial or impossible to perform in the time required. 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.

28 It is apparent that the plaintiff is a sensitive person. There is no suggestion however that the employer here was aware of the

earlier episodes of depression, or that the case should be approached in that light i.e. that the school should have known plaintiff had

a predisposition to such matters. It is also disturbing that the remedy (in this case protracted litigation) if not worse, then certainly

resembles the wrong in its impact on the individual concerned. It is apparent that by the time the case came on in the High Court,

that the plaintiff’s experience of stress, anxiety and depression were bound up with the stress necessarily involved in court

proceedings so that the judge considered that the symptoms recounted on examination were attributable to the litigation as much as

the original complaints about the school. Furthermore, the trial judge was confident once the case was resolved, it would be possible

for her to return to work within six months even though she had at that point been absent for almost four years. It may be said that

this is an unavoidable consequence of any claim that goes to court, but it is certainly the case that court proceedings, with all the

pressures involved, are a less than ideal method of dealing with complaints of workplace stress. It should also be recognised that such

cases impose their own stresses on other people involved because necessarily their own characters and reputation will come under

scrutiny in a more personal way than in an ordinary personal injuries claim.

29 A further feature which is not unconnected to the stresses involved are the considerable costs involved of a hearing of this nature

which has now extended over 14 days in three courts. If the High Court judgment is upheld then the award of damages and costs and

the defendant’s own costs, will on any view be very substantial indeed. On the other hand, if the Court of Appeal decision is upheld,

and if it followed that costs were awarded against the plaintiff, then that could easily be ruinous for her. Even if only required to bear

her own costs, and her lawyers, as lawyers acting for individuals in unsuccessful cases often do, were willing to reduce their fees, the

financial impact would still be very substantial indeed.

30 In my view, these features of the case mean that this case, difficult in itself as a factual controversy, must be looked at more

broadly. At some level this novel case will set a benchmark for all bullying claims. The purpose of the law of tort, and in particular the

identification of new claims or areas of liability, is not merely to adjust matters fairly between the individual parties (difficult though as

that may be in a particular case) but by doing so to enable other cases to be settled without proceeding to a hearing, and many more

to be avoided entirely. As Dean Calabresi memorably observed that if a person is held liable for the damage and loss they caused to

others, this person will eventually refrain from carrying out the harmful activity— Calabresi, “Some Thoughts on Risk Distribution and

the Law of Torts” (1961) 70 Yale Law Journal 499. One justification therefore for the law of torts and the stresses and costs it

entails, is that it provides a potent incentive to alter general behaviour. It is necessary therefore to have regard to the impact well

beyond this case, of any finding or rejection of liability.

31 Normally in such circumstances it will become particularly important to pay close attention to the facts of the case. However, this

case illustrates two truths which may not be immediately apparent to the law student encountering the common law through the

medium of reported decisions. First, cases do not come pre-packaged under the headings in the text books. It is not simply a case of

concluding which side has acted well, and who has been injured and who should pay. It is an important issue to consider how the

case should be analysed as a matter of law. Here for example, as Irvine J. observed, there is little doubt that the disciplinary process

engaged in by the school here was flawed, and that a court if asked to do so would have declared the disciplinary sanction invalid. It

is not necessary to speculate on the range or type of proceedings or the extent of remedies involved. However, it does not follow

from the fact that the plaintiff was wronged by the defendant in some sense, that therefore the plaintiff should recover in excess of

€200,000 damages. That is so, even if it is accepted that the plaintiff’s depression, anxiety and stress were caused in whole or in part

by the treatment she received. To take just one obvious example, in the field of administrative law where judicial review on the

grounds of fair procedures is common place, invalid administrative action does not given rise itself to a claim for damages.

32 It is also important to keep in mind the role of fair procedures in this case. They clearly loom large in the High Court judge’s

assessment of the case, and were relied on to a significant extent in the dissenting judgment of Finlay Geoghegan J. in the Court of

Appeal. However, 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.

33 Furthermore, when appellate courts refer to the facts, and when the facts of a case, if reported, are presented in a compressed

format in a headnote, it is easy to think that these are fixed and immutable points. On this approach, fact-finding may be difficult, but

once found, facts are hard-edged and clear. But this case illustrates something the fact-sceptic branch of legal realism identified

some time ago: facts are more malleable and the line between fact, inference, supposition and speculation are more blurred than the

confident finding of fact and pinning down of conclusions in a judgment might suggest. It seems clear that the two judges who would

have upheld the plaintiff’s claim in this case, viewed, and more importantly characterised, the events in this case, quite differently

from the two judges in the Court of Appeal who rejected the plaintiff’s claim. One side sees the plaintiff as unfairly subjected to a

disciplinary process which itself was unfair. The sanction produced was so severe and a refusal to reduce it so incomprehensible that

the whole process can only be explicable as bullying. On the other hand, the majority of the Court of Appeal viewed the evidence as

portraying a bungled, perhaps seriously bungled, disciplinary process but carried out in relation to an incident the school was entitled

to consider serious, and by people including the Board, whose integrity there was no reason to impugn.

34 This difference of approach makes it difficult to review the facts, and indeed to apply the traditional tools of appellate review. In

this case, much of the findings of the trial judge are bound up in and difficult to distinguish from inferences he drew. It is very clear

that the trial judge took a very strong view of the facts in favour of the plaintiff, and against the defendant.

35 In fact little if anything turns on this appeal on the finding of contested primary facts in this case which is the area in which an

appellate court will most readily defer to the trial court. It appears to me that there are perhaps only three areas in which there were

contested issues of fact resolved by the trial judge: two in favour of the plaintiff, and one in favour of the defendant, but that none

of these conclusions appear to have had a significant impact on the outcome of the case. The trial judge accepted the plaintiff’s

evidence that Ms. Dempsey had not handed to her a letter dated the 18th September, 2009, at the meeting on that date, or indeed

at all. In another case this might be significant. However the terms of the letter are not themselves particularly important to the

resolution of this case. Of course, if the trial judge had found that the letter had been deliberately fabricated after the event, to in

some way cover or bolster the defendant’s position, that might be significant, and indeed have an impact on the assessment of the

credibility of witnesses if that had been an issue. However, no such finding was made, and the case is not dependent on the

credibility of witnesses. Instead it is largely dependent on the assessment of facts which themselves not in contest. In fairness to all

parties, I should also observe that there was a degree of confusion on both sides as to the exchange of correspondence and the

sequence of events.

36 The second issue is when the plaintiff and Ms. Dempsey met to consider the teacher’s review of the plaintiff conducted by Ms.

Bramhall and recorded on an SNA staff assessment form. The plaintiff described the events as occurring at a meeting on the 12th

November, 2009, but the judge was satisfied that the meeting occurred on the 19th October, 2009. Again, in other circumstances

this might be significant, but nothing appears to turn on it at least for the purposes of the trial judge’s conclusions. Finally, there was

a total conflict of evidence between the plaintiff and Ms. Dempsey as to what occurred at a meeting on the 27th January, 2010. In

that regard the trial judge accepted the plaintiff’s evidence that she was subjected to a “considerable variety of denigration which

belittled, humiliated and reduced her to tears”. It would certainly be helpful for the purposes of appellate review if in addition to the

conclusion of denigration, belittling, and humiliation, the specific matters alleged to have been said were set out, but this is clearly a

matter in respect of which the judge was entitled to make a finding as between the conflicting accounts. However while denigration,

belittling, humiliation and reducing a person to tears even in a private meeting, is clearly potentially relevant to any claim of bullying,

it does not appear to have loomed large in the trial judge’s conclusion because before recounting his findings in respect of that

meeting, the trial judge had in the immediately preceding paragraph already concluded 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.

Nevertheless, I accept that the finding at paragraph 64 in favour of the plaintiff in respect of the meeting of the 27th January, 2010,

is something within the province of the trial judge: there was conflicting evidence and he accepted entirely one version. I also accept

for the purposes of this judgment that such a finding of conduct, even occurring at a private meeting between only two individuals is

capable of constituting conduct which is inappropriate, and capable of undermining the plaintiff’s dignity at work, and therefore if

repeated, capable of constituting bullying. To that extent this is a finding of primary fact, and therefore important, although not

central to the conclusion of the trial judge.

37 I accept this finding with some reluctance however, because cogent criticisms have been directed towards the analysis of the

facts in the High Court and in particular the finding at paragraph 48 of the judgment that at the meeting of the 23rd November, 2009,

Ms. Dempsey outlined the history of the matter to the Board, which was “almost certainly untrue, highly biased, coloured, and grossly

and unfairly damnified the plaintiff”. As already noted, Ms. Justice Finlay Geoghegan who otherwise upheld the conclusions of the High

Court judge, did not rely on the finding at paragraph 48 because it was challenged by the defendant. It is necessary to explain in a

little more detail why that is so, and why in my view Ms. Justice Finlay Geoghegan was certainly correct, at a minimum, to avoid

relying on that finding.

38 This finding cannot really be characterised as an inference, but rather as speculation alleged to follow ineluctably from certain

facts. The finding here is alleged to follow from the fact that a group of reasonable people could not possibly have come to the

“downright intemperate” conclusion which they did, namely if not a recommendation for the decision to dismiss the plaintiff then at

least the issuance of a Final Stage part four warning, unless the account they had been given was almost certainly untrue, highly

biased, coloured, and grossly and unfairly damnifying of the plaintiff. There are however a number of difficulties with this conclusion.

First, the only evidence given of the events at the meeting of the 23rd November, 2009, was that given by Ms. Dempsey and Mr.

Lynch. Neither gave any evidence that would allow the judge to conclude that what Ms. Dempsey said to the Board was untrue and

highly biased. This is a conclusion derived entirely therefore from the judge’s view of what he describes as the extreme reaction of

the Board. This conclusion is dubious as a matter of logic, (there could be other reasons, whether good or bad for the Board’s

reaction other than an unfair account by Ms Dempsey, such as that, rightly or wrongly, they took a more serious view of the matter

than the judge did) but, as the majority of the Court of Appeal pointed out, it is in any event difficult to square with other

uncontested facts: first, that Ms. Dempsey and Mr. Lynch did not encourage the Board in its conclusion, but sought a lesser sanction

and sought to dissuade the Board from recommending dismissal; second, that the plaintiff was not identified by name and there could

be therefore no question of any personal animus at least on the part of the other members of the Board; and finally, that when the

Board was apprised of the case being made on behalf of Ms. Ruffley, namely that the sanction was too severe in and of itself, and in

the circumstances where other SNAs had engaged in the practice, the Board nevertheless reaffirmed its decision. But there is perhaps

an even more fundamental objection, which must have particular weight in a case such as this concerned at its heart with fair

procedures: this assertion was not put to either Ms. Dempsey or Mr. Lynch in cross-examination on behalf of the plaintiff or indeed by

the judge, even though the conclusion arrived at in the judgment, of an untruthful, biased, and grossly unfair account, is one

necessarily damaging to Ms. Dempsey’s reputation, and also and inescapably meant that Mr. Lynch’s account of the meeting must

have been, at a minimum, both partial and inaccurate in a very material respect.

39 I cannot accept therefore the finding at paragraph 48 as a finding of fact. Furthermore, I consider that an erroneous conclusion

arrived at by an experienced trial judge who had so clearly and obviously engaged carefully with the facts of this case, is its own

warning against any over simplification of the facts in this case. It is apparent however, that Ms. Justice Finlay Geoghegan in the

Court of Appeal was able to uphold the trial judge’s finding without relying on the finding at paragraph 48. I have some reservations

about this course because it is not clear to me that a court can apply the normal test of deference towards the findings and

assessments of the trial judge if it has concluded that in some important and material respect findings have been made which cannot

be supported. This must apply particularly in a case such as this which is dependent upon there being a number of incidents and a

pattern of behaviour which can satisfy the legal requirement of repeated inappropriate behaviour undermining dignity at work. If one

or more incidents relied on by the trial judge is properly rejected by an appellate court, can the overall conclusion of the trial court

that there had been repeated conduct sufficient to establish bullying, be one to which the appellate court must continue to defer? It

is apparent, that something similar occurred in relation to the inference drawn by the trial judge at paragraph 75 that he was satisfied

that the Board did not give any meaningful consideration to the case being made by the plaintiff. As is pointed out by Irvine J., this

was not put to Mr. Lynch in cross-examination either. I am not convinced therefore that it is appropriate to merely subtract these

findings and then consider whether the balance of matters can justify a finding of liability when we do not and cannot know if the trial

judge would himself or herself have so considered. However, given the importance of this case both to the individuals, and more

widely, I think it is desirable to proceed to consider the other issues in the appeal on the assumption that it is possible to excise

paragraph 48, and consider if the remaining matters can support a finding of bullying.

40 I regret to say, that it appears to me also that despite the welter of evidence of the day-to-day interactions, and the

communications and correspondence between the parties, there is nevertheless an absence of evidence on an issue which I consider

to be important, if not central. An important component of the High Court finding of bullying was that the original incident – the

locking of the sensory room door – was a relatively trivial matter which ought to have been resolved simply, and did not itself merit

being brought to the board. In this regard the trial judge takes a contrary view to the principal, Ms. Dempsey, and the chairman, Mr.

Lynch, who both considered it should be brought to the Board’s attention, and by definition, the other members of the Board who

treated the matter so seriously. This accordingly involves the trial judge substituting his judgment for that of the decision-makers. It

is rare for courts to do this, when asked to review the decision of a decision-maker, otherwise than by way of direct appeal. The

guarantee of fair procedures is based on the theory that if fair procedures are followed, a fair result will ensue, but there is inevitably

a range of decisions which a reasonable decision-maker may take even if a judge on the same material would not make the same

decision. A court exercising judicial review is not a court of appeal on the merits. A similar test is applied when reviewing the fairness

of dismissals from employment. If procedural fairness is to be a component of the tort claim, a similar approach should apply.

41 Here it is very clear that the trial judge considered that the decision of the Board was not only reached after an unfair and flawed

procedure, but was a decision which was wrong in the sense that it was a decision that he himself would not have come to. It may

be inferred that he would also have considered that it was a decision to which no reasonable Board could properly have come. But

that is a conclusion on an issue which, at a minimum, would have been greatly assisted by evidence from experienced care

professionals as to whether the practice of locking the door from the inside was a breach of proper procedures and perhaps critically,

if it was, how serious a matter it was.

42 The manner in which the High Court dealt with the first component of this issue is worthy of some note. Initially the judgment

simply records the plaintiff’s surprise at being reprimanded because it was said no instruction had been given either to lock or not lock

the room. These and further references seem to suggest that the appropriateness of the conduct was a matter of some reasonable

debate. However, at paragraph 42 the trial judge accepted, readily, that it was reasonable of the defendant both for health and

safety reasons and more probably for reasons of child protection to insist on a prohibition of locking the door. Later, “with the benefit

of due consideration and hindsight”, it was acknowledged that it “could easily be said that the necessity of observing child protection

standards meant, unequivocally, that … this door should never be locked”. Later again however it is stated that the locking of the

door was something “the defendants were entitled to regard as unacceptable”. Given the importance of this issue, it could have

benefitted from independent evidence which might have established the seriousness or appropriateness of the conduct, beyond

dispute. There seems little doubt however, that the locking of the door in this way was not acceptable conduct. Indeed, that is

precisely what the Mr. Mullen plaintiff’s union representative acknowledged when he argued merely that the punishment was too

severe. If there is any doubt it is worth considering for a moment what analysis might have been offered in court if in an individual

case a child had sought to leave the room and had become agitated and distressed or suffered an injury because of the fact that the

door was locked. Again, it is worth considering what the position would be if it had been alleged that a child had been abused in some

way while restrained in the room. It is easy in either case to imagine that the practice of locking of the door would have been the

subject of very severe criticism, and the fact that it was not in accordance with KARE practice would have been emphasised, and the

absence of a specific prohibition in a code of conduct treated as irrelevant.

43 The judgment ultimately does seem to proceed on the basis that the practice was unacceptable, although in my view it would

have been desirable that such a conclusion had the support of independent evidence. However there was no evidence whatsoever on

what is perhaps a critical question at the heart of much of the division of opinion in this case: how serious a default was this as a

matter of best practice? That question was central to this case because the trial judge found that the disciplinary process should not

have taken place at all (para. 62) and that the Board’s response in treating the issue as serious was “extreme, if not, downright

intemperate”. (para.48). At a minimum, these conclusions would have been more soundly grounded if there had been evidence as to

the seriousness with which such an incident should or could be viewed by a reasonable employer of SNAs caring for children with

intellectual disabilities. On the other hand, if there was evidence in addition to that offered by Mr. Lynch, that the practice was

regarded as a serious default which should have been known by any conscientious SNA, then the case could be viewed in a very

different light.

44 I accept that a specific component of the trial judge’s conclusion that the process should not have taken place was his view that

there was a common practice among SNAs of locking the door and that accordingly the plaintiff had been “singled out” for punishment

unfairly. Again the evidence however is less than clear-cut. There were 26 SNAs employed in the school. (para. 5). The plaintiff

devised a rudimentary questionnaire containing two questions the first of which was “Have you ever locked the sensory room door?”.

The questionnaire was answered by only four SNAs who all answered, yes. The evidence of the plaintiff and the SNAs who gave

evidence was to the effect that more SNAs would have answered affirmatively if they had been able to do so anonymously. Later in

the judgment this limited evidence becomes a finding that “there was a common practice of doing this” (para. 62), and indeed that

the Board was “aware that several other SNAs also occasionally locked the Sensory Room door” (para. 87). At paragraph 41, there is

a finding that “there was a general practice among many of the SNAs, probably a majority, of locking the Sensory Room door” (my

emphasis in each case). Again, in my view, the evidence recounted in the judgment is a less than secure basis for the conclusion that

there was a general practice among the majority of SNAs of locking the sensory room door, even though that was fundamental to the

finding that the process “should not have been commenced”, and that the plaintiff was “singled out”. Even on the plaintiff’s case this

was not the type of clear-cut singling out or targeting for a punishment that is sometimes discussed in an employment context, and

which can give rise to a finding of unfair dismissal. A classic case is where it is known as a matter of fact, that a certain practice is

widespread, but in that knowledge, only one person is selected for punishment, in circumstances which give rise to the reasonable

inference that the objective is not to put an end to conduct, but to victimise the individual. In the field of unfair dismissal,

consistency in applying procedures may be a component of unfairness. If an employer has previously tended to interpret a disciplinary

rule lightly, a sudden decision to dismiss employees for breaking the rule may be unfair. (See: Redmond, Dismissal Law In Ireland

(Dublin: Butterworth, 1999), para 13.40). Here however, even on the plaintiff’s case, it is not suggested that Ms. Dempsey, still less

the Board, was aware when the disciplinary process was initiated, of the general practice found by the trial judge based on the limited

evidence set out above, and therefore, at least in its initiation, the disciplinary process cannot be treated as a singling out of the

plaintiff. What happened was something rather more complex: the plaintiff having been found to have been engaging in a practice

which it appears to have been accepted even if grudgingly, was inappropriate and unacceptable, and when informed that the matter

was being treated as a disciplinary matter, raised the contention that other (unspecified) people had done this on other occasions

(also unspecified). The trial judge found that this allegation should have been investigated and that of course goes to the fairness of

the procedures followed, but, as Irvine J. suggested in the Court of Appeal, it is certainly a less clear-cut example of being singled out

for punishment. Once again it may ground a finding of imperfect and flawed procedures, but it falls short in my view of the type of

conduct captured by a bullying claim.

45 One further observation is necessary. One issue left unresolved by the decision of the High Court is any plausible explanation for

the conduct criticised. Most cases of workplace bullying involve bullying by an individual, or a group excluding and victimising a

person, and which in either case the employer fails to prevent or remedy. There may also be so called ʻcorporate bullying’ involving a

superior, or indeed management more generally in the treatment of the individual. Where more than one person is involved as where

the individual is ostracised, or subjected to ridicule, it will usually involve some obvious concerted action. However, here, it is not

clear what is being alleged or indeed found in this regard. It is not for example alleged merely that Ms. Dempsey bullied the plaintiff,

and the school failed to prevent or remedy it. It is clear that Mr. Lynch is also criticised and found culpable although it is not

suggested he was involved from the outset. Nor is it suggested that the remaining members of the Board were misled by Ms.

Dempsey, alone or together with Mr. Lynch, but instead it appears the members of the Board were criticised as somehow being

participants themselves in the bullying. It seems, although it is not clear, that the teacher Ms. Bramhall, may also have been

considered a party to the bullying insomuch as she was not prepared to allow Ms. Ruffley correct the weekly forms.

46 If this case was merely about unfair procedures, then the fact that there were a number of disparate actors would not pose a

difficulty, and indeed and at some level might enhance the claim: the school would be responsible for the procedures followed, and

the cumulative impact of them, and any lack of cohesion and organisation might only give weight to the plaintiff’s case. However, it is

I think rather different where it is alleged that reprehensible conduct at a personal level such as bullying is involved. It is not clear if

the individuals (Ms. Dempsey, Mr. Lynch, Ms. Bramhall, and the other 4 members of the Board) are alleged to have separately

engaged in bullying, or in some form of collective action, or that there was some hidden arrangement or agreement between them

arising perhaps out of some pre-existing animus. The absence of any explanation why these different people became parties to a

pattern of what was considered to be wholly inappropriate behaviour undermining the dignity of the plaintiff as a person, makes it

difficult to defer too readily to the conclusions of the trial judge. Accordingly, I think it is difficult to address this merely at the level

of the facts found and inferences drawn, although there is considerable force in my view, in the analysis of those findings in the

judgments of the majority in the Court of Appeal. This appeal can be best approached and resolved on a question of law: do the facts

found, or not in contest in the High Court, amount to bullying at law?

47 In this regard the trial judge’s approach was to record the facts as found by him, and his strong view of them, and then conclude

that this amounted to bullying, without any extended consideration of the law. Thus at paragraph 63, he determined that the

treatment of the plaintiff was “inappropriate”. Later at paragraph 88, having stated that the Board persisted in its unfair and

inappropriate treatment of the plaintiff, he concluded:

“Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants

was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but

that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”

48 On this approach the only analysis of the question of undermining of dignity at work, is that it is treated as a necessary

consequence of the finding of any inappropriate conduct which was itself persistent. While I recognise that this is a developing area

of law, and the facts and evidence in this case were perhaps unusually difficult, I do not think it is sufficient to resolve the legal issue

in this way. The requirement of undermining of dignity is an important part of the definition. The matter is dealt with in greater detail

in the analysis of the dissenting judgment in the Court of Appeal of Finlay Geoghegan J. and it will be necessary to turn to that in due

course. Before doing so, it will I hope be useful to look at the question of liability for bullying in a somewhat broader perspective.

A detour: is there a separate tort of bullying or harassment?

49 While it does not arise directly on this appeal, I consider that the statement of law, accepted without question in this case, that

no separate tort of bullying is or can exist, that bullying is in a sense a subspecies only of an employer’s duty of care, but that there

can be nevertheless a concept of ‘corporate bullying’ for which the employer is directly responsible, more than a little puzzling and

worthy of some consideration. I discuss these matters however, not to raise further uncertainties as to the law, but rather because

these matters and the questions they raise cast a helpful light, in my view, on the issues to be determined in this case.

50 There is no doubt that in addition to specific duties imposed by statute, an employer owes extensive duties of care to an

employee at common law. Those duties include the duty to provide a safe place of work, a safe system of work, to ensure fellow

employees are competent, and that equipment used in the workplace is safe. That duty can clearly extend beyond the direct actions

of the employer, and to the actions of other individuals which are or ought to be foreseeable, including the actions of other

employees, or indeed third parties. Thus for example, employers have been held responsible for a failure to foresee and take steps to

prevent criminal assaults suffered by an employee: Walsh v. Securicor Ireland Ltd [1993] 2 I.R. 507. Another example might be the

employee horseplay cases. If the employer knows or ought to have known of the practice, and did not take effective steps to

prevent or stop such practices, then an employer may be liable to the injured employee. In addition, an employer may also be

vicariously liable for the acts of an employee and without proof of fault in the employer’s part if the actions of the other employee are

so closely connected with the employment as to justify the imposition of vicarious liability. But in either case, at least in theory, the

fellow employee is also a tortfeasor, either negligent in respect of the safety of another, or in some cases the perpetrator of a

deliberate wrong in the nature of an assault for which the employer is vicariously liable. It is not necessary here to discuss the

mechanism by which the law as devised to avoid perhaps the full logical consequences of this so that an employer, cannot normally

seek contribution and indemnity for the acts of an employee tortfeasor, but the theory that the co-employee is guilty of a tort

remains an important component of the basis upon which liability, vicarious liability or in negligence, is imposed upon an employer. It is

I think difficult to conceive of circumstances under which an employer may be held liable for the conduct of another person where

that person’s conduct is not in itself, at least in theory, itself a tort.

51 However, if bullying conduct is not itself wrongful (or at least actionable), and is only a subspecies of the employer’s duty of care

to an employee, certain surprising consequences follow. First, it would mean that actions for bullying could only occur in the

employment context. Yet it is plain that there are other areas in which bullying can be encountered. Second, if we take for this

purpose a clear-cut example of an extreme case of individual vindictive bullying by one person of another, and where one employee

cruelly and mercilessly torments another, with perhaps serious psychiatric consequences for the victim— the bully would nevertheless

have no liability to the victim even if the bully was also sufficiently wealthy to pay compensation, and even if, on this hypothesis, the

employer was not. Furthermore, under this scenario an employer could escape liability by demonstrating that it had taken all

reasonable steps to prevent the bullying. In such a case, a victim of concealed bullying would have no remedy even if the bullying

was closely connected to the employment and even if in similar circumstances an employer would be vicariously liable for physical

rather than psychiatric injury caused to a victim. Finally, there is a difficulty in reconciling the contention that bullying is only

actionable as a subclass of the employer’s duty of care with the statement that the employer can nevertheless be liable for

something labelled as ‘corporate bullying’. In such circumstances, it appears that an employer (who can be a single individual) may be

made liable for conduct which is voluntary, deliberate and direct. This is not negligence or a breach of a duty of care, any more than

deliberate assault is a breach of some separate duty of care. It is instead a separate intentional tort. It appears rather anomalous

therefore that an employer can be liable for direct and deliberate conduct, in this case bullying, when in any other circumstance a

bully is not.

52 It is clear therefore, that the law as stated in this developing field is somewhat anomalous. This is not by any means a fatal

objection however, as it is now well recognised, that the lifeblood of the law has not been logic but rather felt experience. The fact

that the law has not pursued the logic of a proposition to a remorseless conclusion may often be an indicator, not of lack of principle,

but rather of some important felt constraint upon more widespread liability. Disturbances in the pattern of the common law are often

instructive instances, meriting investigation rather than merely anomalies to be removed.

53 It seems likely that these developments in the law in Ireland reflect forces and considerations which may be detected in

developments in the jurisprudence of other common law countries. It is useful therefore at this point to briefly survey some relevant

developments in other jurisdictions which may cast a light upon the issues to be decided in this case.

International Comparisons

54 The question of liability for intentional or negligent infliction of mental distress has been a difficult topic for the law of torts since

at least the decision in Wilkinson v. Downton [1897] 2 Q.B. 57. By the 1990s some consideration had been given to the development

of a separate tort of harassment in cases such as Khorasandijan v. Bush [1993] Q.B. 727. In the United Kingdom those developments

were overtaken by statute, and the enactment of the Protection from Harassment Act 1997, which created both criminal and civil

liability for harassment. Subsequently, it was confirmed that there was no scope for the further development of the common law. The

statute itself did not define harassment but it included “causing the person distress”. It has been held that the conduct “must be

grave” and that in any event “in life one has to put up with a certain amount of annoyance: things have got to be fairly severe,

before the law, civil or criminal, will intervene”: Ferguson v. British Gas Trading Ltd [2009] E.W.C.A. Civ. 46. Later again, Lord

Hoffman observed in Wainwright v. Home Office [2004] A.C. 406 at p.426:

“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 the right way

to deal with it is always by litigation”.

In Dowson v. Chief Constable of Northumbria [2010] E.W.H.C. 2612 (Q.B.), Simon J. offered a summary of the necessary features of

a claim under the legislation:

“(1) There must be conduct which occurs on at least two occasions,

(2) which is targeted at the claimant,

(3) which is calculated in an objective sense to cause alarm or distress, and

(4) which is objectively judged to be oppressive and unacceptable.

(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.

(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been

described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.”

55 In Sutherland v. Hatton [2002] 2 All E.R. 1, which concerned the field of workplace stress claims, Hale L.J. (as she then was)

offered a further detailed list of factors to be considered before any claim for damages for workplace stress. This is undoubtedly an

aspect of the employer’s duty of care to an employee. Such workplace stress encompasses bullying, but clearly includes other

factors. These matters are helpfully considered in Cox, Corbett and Ryan, Employment Law in Ireland, Chapter 16, “Legal Obligations

for the Employer in Respect of Workplace Stress and Bullying” (Dublin: Clarus Press, 2009), pp. 565-615. In Sutherland v. Hatton at

pages 19-20, Hale L.J. set out 16 propositions which can I think be understood as permitting claims for stress or bullying, but also

seeking to limit and control such claims. It is for example noteworthy that one principle was that identified at subparagraph 11 that an

employer who offered a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be

found in breach of duty.

56 The law has developed differently in other common law jurisdictions. In the United States of America, the early development of the

law in the early 20th century was influenced by the legal realists and their acceptance of contemporaneous developments in

psychiatry. Accordingly, US law in a number of states was willing to accept the possibility at least of claims for intentional or

negligent infliction of an emotional injury. Dean Prosser was a key influence in this development. The most striking thing for present

purposes however, is that notwithstanding a willingness to contemplate recovery for emotional distress and psychiatric injury, the law

still sought significant limiting devices such as Prosser’s concept of “extreme outrage”. Thus, Prosser and Keeton, Law of Torts 5th

Ed., (St Paul, Minnesota: West Publishing Co: 1984) at pages 60-61, expressed the general principle in striking terms:

“In special situations of extreme misconduct recovery is allowed. . . So far as it is possible to generalise from the cases,

the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by

decent society, of a nature which is especially calculated to cause, and does cause mental distress of a very serious

kind. The requirements of the rule are rigorous, and difficult to satisfy.”

57 This approach is reflected in § 46 American Restatement of Torts (Second) (1977) which provides:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is

subject to liability for such emotional distress, and if bodily harm results from it, for such bodily harm.”

The conduct in question must be “conduct which in the eyes of decent men and women in a civilised community is

considered outrageous and intolerable”.

58 It is not necessary to engage in a further survey of these difficult issues and the development of the law of tort to which so much

learning has been devoted in common law countries. It is sufficient for present purposes to observe, that in dealing with claims than

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. It is not surprising that this should be so.

Returning to the observations made at the outset of this judgment, litigation is extremely costly and demanding both in financial

terms, and in the resources which must be applied to it. In addition to this there is the broader cost of claims which must be settled

because a plausible claim can be made, and the further social cost that the possibility of such litigation will inevitability lead to the

adjustment of behaviour as parties seek to avoid the risk of exposure to costly claims. Where this results in the improvement of

workplace practice and behaviours, and the protection of individuals from intolerable behaviour, it is a proper and valuable function of

the law of tort. If however, the test adopted leads schools or employers to avoid pressing disciplinary matters so as to avoid the risk

of exposure to liability, then the cost is negative. 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 direct 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.

59 Turning to the legal issue which arises in this case, it is I think significant that the claim relates to a disciplinary process, and

circumstances which are not encompassed by the classic conceptions of workplace bullying. It is undoubtedly a case at the margins

at best, and as a result may help define the limits of actionable claims. Here the Court of Appeal set itself the question “could a

flawed disciplinary procedure which goes on over a number of months and takes a number of steps ever be considered to be

“repeated inappropriate behaviour” for the purpose of the definition?” With the addition that the conduct must also capable of

undermining the person’s right to dignity at work is, I consider, the correct question as a matter of law.

60 I agree with Finlay Geoghegan J. in particular that this issue involves a careful focus on at least three terms used in the 2002

Order:

(i) Repeated behaviour;

(ii) Inappropriate behaviour; and

(iii) Behaviour reasonably capable of undermining dignity at work.

I also 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?

61 I sympathise with the cautious approach which Finlay Geoghegan J. adopted and which led her to suggest that the consideration

of whether conduct was both inappropriate and repeated must depend on the relationship and the relative decisions of the individuals

and the “full factual context” (para.18), and on an “assessment of all the facts.” (para.20). Many difficult cases force courts to make

qualifications such as this, but unless an appellate court can offer some more precise definition, it offers little guidance not merely to

lower courts, but as importantly, to litigants and potential litigants. If everything depends upon the facts (and necessarily the view

courts take of them), then it will not be possible to determine whether bullying has occurred in any case, until the final court of

appeal has made its determination. It will also not be possible to advise plaintiffs whether or not to pursue claims, or defendants

whether or not to defend them, with any confidence. As a result, the number of claims which will be advanced, and settled at some

level, will necessarily proliferate. It is therefore necessary to look carefully at the concepts involved.

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.

63 In her judgment, Finlay Geoghegan J. contrasted the phrase “repeated” with the last sentence in the definition which required that

the conduct be something other than an “isolated incident of the behaviour”. “[It] may be an affront to dignity at work, but, as a

once-off incident, is not to be considered to be bullying.” The judge continued: “it therefore appears to me that “repeated” in the

definition is being used for the purpose of connoting behaviour which is more than either an “isolated incident” or a “once off

incident””(para. 20). 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’. Again, this can best be understood by considering a classic case of bullying. There may be individual and

occasional incidents of a superior speaking aggressively, losing his or her temper, or making jokes or comments which are hurtful or

offensive. This in itself does not give rise to a claim of bullying. It is when a pattern of behaviour emerges that it can be said that the

behaviour is repeated for the purposes of a definition. What must be repeated is the behaviour which is inappropriate and which

undermines personal dignity. 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. However, I do

not consider this to be the most important aspect of the case because to some extent it is dependent upon the question as to

whether a defective and flawed disciplinary process can be ‘inappropriate behaviour’ for the purposes of the definition.

Inappropriate behaviour

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. That in turn is consistent with the concept of human dignity being

protected. I agree that the judge’s finding that Ms. Dempsey humiliated Ms. Ruffley and reduced her to tears at the meeting of the

27th January, 2010, is a finding of behaviour that is inappropriate in this sense. By contrast, the fact that the Board proceeded to

make a decision to impose a disciplinary sanction on Ms. Ruffley without informing her of that possibility the matters relied on or giving

her an opportunity to present her case, was unfair, flawed and liable to be quashed or declared invalid and unlawful. However, it

cannot in my view be said, without more, to be inappropriate in the sense in which that word is used in the definition.

Dignity at Work

65 Perhaps the most important aspect of the definition is the question of undermining dignity at work because it relates closely to the

value which is sought to be protected by the law. As I understand it, that is the idea that there is dignity in and at work. The fact

that a person may be employed by another and may be required to accept instructions, discipline and control during the working day,

does not mean that they are to be treated either by the employer, or fellow workers, in a way which undermines their essential

dignity as a human person. This is, in my view, a central feature of the test. It is noteworthy therefore, that both the High Court

judge and the dissenting judge in the Court of Appeal do not appear to approach this limb of the definition as providing any separate

or additional test. Thus, Finlay Geoghegan J. considered that: “in relation to a disciplinary process such right to dignity must include,

it appears to me, a right to be treated with respect, fairly and not less favourably than other colleagues in a similar position”. She

concluded: “However, it appears to me that her right to dignity at work includes a right to be treated with respect and fairly in the

above sense and not singled out unfairly from colleagues in a similar position in such disciplinary process.” (para. 22). The plaintiff

argues therefore that the fact that the disciplinary process was unfair is enough to satisfy this component of the definition.

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. This is illustrated by paragraph 88 of the trial judge’s

conclusion:

“There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the

plaintiff’s 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 preamble of the 1937 Constitution was it

appears the first time the word was used in the context of a fundamental rights guarantee. It has now become to be seen as a vital

component in the protection of human rights in the post-war world. It is for example no coincidence that dignity is afforded a

preeminent status in the post-war constitutions of both Germany and Israel. In the Irish context, it has been invoked in the context

of marital privacy (McGee v. The Attorney General [1974] I.R. 284), the criminalisation of male homosexuality (Norris v. The Attorney

General [1984] I.R. 36 (Henchy J. dissenting)), the withdrawal of treatment from a patient in a permanent vegetative state (In re a

Ward (No.2) [1996] 2 I.R. 79), and the prohibition on assisted suicide (Fleming v. Ireland [2013] 2 I.R. 417). Walsh J. said in Quinn's

Supermarket v. Attorney General [1972] I.R. 1 at pp. 13 and 14, that the guarantee of equality under Article 40.1 was not a:

“guarantee of absolute equality for all citizens and all circumstances but it is a guarantee of equality as human persons

(and as the Irish text in the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a

guarantee against any inequalities grounded on assumption, or indeed a belief, that some individual or individuals or

classes of individuals, by reason of their human attributes whether ethnic or racial, social or religious background, are to

be treated as the inferior or superior of other individuals in the community”.

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 am aware that Ms. Justice Finlay Geoghegan lays stress on the fact that she considered the plaintiff had been treated unfairly by

reference to other SNAs. She considered that a right to dignity at work included a right to be treated “with respect and fairly and not

less favourably than other colleagues in a similar position”, and not to be “singled out unfairly from colleagues in a similar position in

such disciplinary process”. (para.22). 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. While I have some concerns about the manner in which the limited evidence in this

case becomes converted into a finding of general practice, it is not suggested that Ms. Dempsey, still less the Board, were aware of

any such practice limited or general at the time the disciplinary process was initiated against the plaintiff. In Ms. Dempsey’s case, she

went to the sensory room, could not gain access, and therefore had immediate first hand evidence of what the plaintiff had done. In

relation to both Mr. Lynch and the Board, it is not suggested that they were aware of any practice. On the contrary, it is suggested

that they should have been told by Ms. Dempsey of the point raised by Ms. Ruffley that other SNAs had done this. But that in my

view cannot constitute targeting or singling out of the plaintiff. It is suggested that once aware of this fact, Ms. Dempsey, Mr. Lynch

and the Board ought to have conducted a more thorough examination of the extent to which there was a practice among other SNAs.

Somewhat surprisingly, the trial judge goes so far as to conclude that this meant that the disciplinary process against Ms. Ruffley

should not have proceeded at all. But any such investigation was only relevant to the extent of the sanction to be imposed on Ms.

Ruffley: as was submitted on her behalf by her union, the Part Four final warning was alleged to be “too severe”. Of its nature, any

such inquiry would not have yielded evidence as clear-cut and direct as emerged when Ms. Dempsey sought access to the sensory

room on the 14th September, 2009. It is of course suggested in retrospect that the sanction imposed on Ms. Ruffley was

disproportionate having regard to the evidence that was available or potentially available in relation to the practices of other SNAs.

This, if comprehensively established, might well sustain a challenge to the sanction imposed. In my view however it would significantly

expand the concept of bullying if this type of analysis were sufficient to establish that charge.

70 It may be, that lurking in the plaintiff’s case, and the acceptance of it by the trial judge, and the dissenting judgment in the Court

of Appeal, is indeed a belief that Ms. Dempsey, Mr. Lynch and the rest of the Board were not bona fide in their pursuit of the

disciplinary process which was in fact targeted at and intended to victimise the plaintiff. If this suggestion is to be made by the

plaintiff, it should be made explicitly, put to all the relevant parties, and then be the subject of an express finding by the trial judge

setting out the evidence leading to such a conclusion to allow appellate review. The judgment in the High Court, while forceful in

favour of the plaintiff, stops well short of such a conclusion. At their height, the facts found in the High Court judgment which are

capable of being upheld on appeal judgment do not constitute bullying. Accordingly, the appeal must be dismissed.

71 It may also be appropriate here to address the two questions upon which leave to appeal was granted. It is the case for example

that in jurisdictions where there is a separate tort then as set out in the Restatement on Torts (2nd), it is necessary to show some

intent to injure and cause distress or recklessness at least. That is necessary under the rule in Wilkinson v. Downton. In the cases

where the conduct does meet the high threshold required, this may not indeed be a particularly onerous requirement, given the

presumption that a person intends the natural and probable consequences of his or her actions. 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. This

was illustrated by Quigley where it was recorded that the manager said he would “sort out the granddads”. 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. 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.

Resolution of this Case

72 The difficulties in this case are not however limited to the findings of fact or the legal definition of bullying. The plaintiff succeeded

in this case at first instance. The High Court refused any stay on its award. The Supreme Court (to which appeal then lay) imposed a

partial stay on the judgment on terms that the defendant was obliged to pay the plaintiff the sum of €100,000. That occurred over

two and a half years ago. The plaintiff has not been in employment since she left this school in 2010. There is furthermore the

conclusion upon which all judges who have heard this matter are agreed, that the disciplinary procedures followed by the school were

inadequate and impermissible, and could and would have been declared invalid in proceedings brought for that purpose. The entire

process including the seven years of litigation have been extremely stressful to the plaintiff who it seems likely is particularly

vulnerable to such stresses. While in my view the matters alleged here do not give rise to a successful claim for bullying, I readily

acknowledge that the degree of judicial disagreement demonstrates that this is by no means clear-cut. In those circumstances, it

may be necessary to hear argument as to any consequential orders but I should indicate a provisional view that I would be very slow

to order the plaintiff to repay to the defendant the sum of money paid as a condition of obtaining the partial stay, or pay costs. It

may indeed be necessary to reflect the fact that the plaintiff would have been justified in coming to court to have it determined that

the procedures applied to her were flawed. It would be desirable that the parties could reach their own agreement on these matters

but in the event that there is no such agreement, I would be prepared to hear argument and make a final decision in that regard.