Court partially allows appeal on future earnings but dismisses claim regarding workplace bullying and dignity rights.

THE COURT OF APPEAL

[2014 No. 298]

[Article 64 Transfer]

The President

Finlay Geoghegan J.

Irvine J.

BETWEEN

UNA RUFFLEY

RESPONDENT/PLAINTIFF

AND

THE BOARD OF MANAGEMENT OF ST. ANNE’S SCHOOL

APPELLANT/DEFENDANT

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 8th day of December 2015

1. This is an appeal by the defendant against the order of the High Court of 30th May 2014, awarding a sum of €255,276.39 as

damages for personal injuries by reason of the negligence of the defendant and the judgment of 9th May, 2014, of the trial judge

(O’Neill J.) pursuant to which the order was made.

2. The plaintiff was employed by the defendant as a Special Needs Assistant (SNA) in the defendant’s National School known as St.

Anne’s in County Kildare. The plaintiff’s claim was based upon facts commencing in September 2009, and ending in September 2010,

which, it was contended, constituted “workplace bullying” as defined in the Industrial Relations Act 1990 (Code of Practice Detailing

Procedures for Addressing Bullying in the Workplace)(Declaration) Order 2002 (S.I. No. 17/2002). The trial judge upheld the plaintiff’s

claim that the conduct of the defendant its servants and agents of which she complained constituted workplace bullying, as defined.

The plaintiff’s claim as pleaded was that the defendant was in breach of its duty of care as her employer to the plaintiff and

negligent. There does not appear to have been any dispute that if the conduct complained amounted to workplace bullying as defined

that the defendant was negligent. The trial judge further upheld the plaintiff’s claim that by reason of the said conduct of the

defendant, she had suffered an identifiable psychiatric injury caused by the said conduct and awarded in total the sum already

indicated.

3. The trial judge refused the defendant’s application for a stay on the order of 30th May 2014.

4. The defendant appealed the judgment and order to the Supreme Court and applied for a stay on the High Court order. By order of

4th July 2014, the Supreme Court granted a stay on the High Court order upon condition that the defendant pay to the plaintiff a sum

of €100,000 within two weeks from the date thereof and gave directions aimed at an expedited appeal, including an application to be

made to the Chief Justice for priority in October 2014.

5. On 29th October, 2014, the Chief Justice, with the concurrence of the other members of the Supreme Court, made a direction

pursuant to which this appeal was transferred to the Court of Appeal.

6. The defendants have pursued a focused appeal upon three grounds:

(i) Notwithstanding findings of fact made by the trial judge (which, it was accepted, could not be interfered with on

appeal), the conduct complained of was, in substance, a flawed disciplinary procedure and did not constitute “workplace

bullying” as defined in the 2002 Order.

(ii) Even if the conduct of the defendant did amount to “workplace bullying”, as defined, the plaintiff did not suffer a

psychiatric illness caused by the said conduct of the defendant.

(iii) The trial judge was in error in awarding a sum of €47,000 in respect of future loss of earnings when no particularised

claim for future loss of earnings had been made in the course of the proceeding before him.

Whilst the notice of appeal included a ground in respect of excessive general damages that was not seriously pursued at the hearing.

7. Much of the submission in the appeal centred on the first ground. There was relatively little disagreement between the parties as

to the applicable law. Nevertheless, there were certain aspects of the principles about which there was not agreement and in respect

of which there is not clear authority. I propose, therefore, firstly setting out my conclusions on the applicable law insofar as they

relate to the plaintiff’s claim herein prior to considering the appeal against the conclusions reached by the trial judge.

Applicable Law

8. It must be recalled that the plaintiff’s claim against her employer is a claim for damages for negligence or breach of duty. It was

also pleaded in contract but nothing turns on that. Claims of this nature, where the breach of duty alleged is a failure to prevent or

engaging in workplace bullying are often colloquially referred to as claims for bullying and harassment. However, as has been pointed

out on more than one occasion, there is no separate tort of bullying or harassment (see Kelly v. Bon Secours Health System [2012]

IEHC 21; Nyhan v. Commissioner of An Garda Síochána & Ors [2012] IEHC 329). The claim is a claim for damages for breach of the

duty of care allegedly owed by the employer to the employee. Where the substance of the claim is an allegation of what is termed

bullying or harassment, the causes of action and necessary proofs on the part of a plaintiff may differ depending upon whether the

alleged perpetrator is simply a fellow employee, or whether, as was the factual position in this claim, the conduct alleged to

constitute the bullying was by the employer, in the sense of either the employer itself or its management. McMahon & Binchy: ‘Law of

Torts’ 4th Ed. at para. [18.80], puts it thus:

“[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.”

9. On the facts herein, the conduct complained of by the plaintiff is conduct of the Principal of the school, Ms. Dempsey, and the

Board of Management (“the Board”) which is the employer and its Chairman. It is a claim based upon an allegation of corporate

bullying, as that term has been used by McMahon & Binchy in the above cited extract.

10. The complaint made by the plaintiff is that the conduct complained of amounts to “workplace bullying” as defined in para. 5 of the

Schedule to the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace)

(Declaration) Order 2002 (S.I. No. 17/2002). That Order declares that the Code of Practice set out in its Schedule shall be a Code of

Practice for the purposes of the Industrial Relations Act 1990. At para. 5, workplace bullying for the purposes of the Code of Practice

is defined as follows:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise,

conducted by one or more persons against another or others, at the place of work and/or in the course of employment,

which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the

behaviour described in this definition may be an affront to dignity at work but, as a once-off incident, is not considered to

be bullying.”

The Code, as declared in the 2002 Order, notes that this definition was recommended by the Report by the Task Force on the

Prevention of Workplace Bullying published in March 2001.

11. It is commoncase that the defendant, as employer of the plaintiff, owes her a duty of care not to engage in or permit conduct

which constitutes workplace bullying as defined. This was also the position before the Supreme Court in Quigley v. Complex Tooling &

Moulding Ltd. [2008] IESC 44, [2009] 1 I.R. 349, relied on by both parties, where the definition of workplace bullying taken from the

Code of Practice declared in the 2010 Order, was accepted by the defendant as an accurate statement of the common law duty of

care. The issue before the High Court, therefore, was whether or not the behaviour or conduct of the defendant (including that of

the Principal) complained of constituted workplace bullying as defined. It is important to emphasise that what the Court has to

consider in this appeal is whether or not the trial judge was correct in determining that the conduct of which the plaintiff complained

as found by him constituted workplace bullying as defined in the 2002 Order. It is not a question as to whether or not the conduct

amounted to bullying as that term might be more generally used or understood.

12. In Quigley, Fennelly J. (with whom Denham J. and Geoghegan J. agreed), identified that for the purpose of the above definition of

workplace bullying, the conduct must be repeated, inappropriate and undermining the dignity of the employee at work. The

identification of those elements presuppose, as was not in dispute in that case, that the actions took place either at the place of

work or in the course of employment which is also a necessary proof. That is similarly not an issue in these proceedings.

13. As will appear from the more detailed consideration of the facts below, the complaints of the plaintiff relate to a flawed

disciplinary procedure which commenced either in or some time after September 2009 and ended in May 2010. There is an additional

complaint in relation to an incident in September 2010. The issues which arose in relation the definition of workplace bullying may be

identified as follows:

(i) 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 purposes of the definition?

(ii) Is the conduct complained as being “repeated inappropriate behaviour” to be objectively determined by the Court? As

a related matter, is the intention of the person who is alleged to have carried out the behaviour relevant to the

determination?

(iii) What are the elements of an individual’s “right to dignity at work”?

Inappropriate Behaviour

14. The only uncertainty in the submissions of the parties as to the proper approach of the Court in determining whether the conduct

of the defendant and Principal, as found by the trial judge, was “inappropriate behaviour” within the meaning of the definition of

workplace bullying was whether or not this should be objectively determined by the court, or whether the intent of the person

concerned was relevant. It was commoncase, in accordance with the authorities, that a court, in assessing whether the alleged

repeated inappropriate behaviour was such that it “could reasonably be regarded as undermining the individual’s right to dignity at

work” must make that assessment objectively for the very reasons explained by Kearns P. in Glynn v. The Minister for Justice, Equality

and Law Reform & Ors. [2014] IEHC 133. In that judgment, Kearns P. at para. 54, having set out the definition of workplace bullying,

stated:

“This wording must be taken as requiring an objective test to determine if bullying has occurred. The test must, for

reasons of commonsense also, be an objective one given that any other would leave every defendant vulnerable to

allegations of bullying based on purely subjective perceptions on the part of a plaintiff who might contend that

straightforward situations at work or otherwise were construed by him/her as amounting to bullying.”

15. The above followed a full quotation of the definition, including the reference to the “repeated inappropriate behaviour”. Counsel

for the defendant drew attention to an earlier comment by Kearns P. at para. 50 of his judgment in relation to bullying as being

“conduct which is intended to reduce that person’s self-worth”. He suggested that this cast some doubt upon the question as to

whether Kearns P. intended that the question as to whether the relevant conduct constituted inappropriate behaviour for the

purposes of the definition should also be objectively assessed. However, in the same judgment Kearns P. at p. 23, identified as the

first question that must be asked in every bullying case, “. . . whether the behaviour complained of, by reference to an objective

test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or

occupational stress”.

16. I am of the view that for the very reasons identified by Kearns P., not only must the question as to whether or not the

inappropriate behaviour is such that it could reasonably be regarded as undermining the individual’s right to dignity at work be

objectively assessed, but the question as to whether the behaviour is inappropriate must also be objectively assessed. It does not

appear to me that it could be either dependent upon a subjective perception by the plaintiff, or indeed dependent upon the intent of

the perpetrator. Such an approach would be inconsistent with objectively determining whether the inappropriate behaviour is such

that it could reasonably be regarded as undermining the individual’s right to dignity at work. If appropriateness or not of the behaviour

is to be objectively determined, then the intent of the perpetrator becomes irrelevant.

17. Accordingly, I have concluded that a court must first assess whether the conduct or behaviour alleged is objectively to be

considered as repeated inappropriate behaviour. If so it must then determine objectively whether it is reasonably to be regarded as

undermining the individual’s right to dignity at work.

18. It appears both difficult and probably dangerous to try and define at a level of principle what would meet the threshold of

“inappropriate behaviour”. Any assessment of what is “appropriate” or “inappropriate” behaviour in a workplace context must depend

on the relationship and relative positions of the individuals and the full factual context.

Repeated – Flawed Disciplinary Process

19. This appeal concerns, in accordance with the findings of fact made by the trial judge, a seriously flawed disciplinary process

which commenced either in September or November 2009 and lasted until May 2010. It appears to have arisen from two separate

incidents; a locked door in September 2009 and an inaccurate completion of an assessment form in October 2009. Counsel for the

defendant submitted that as a single disciplinary process, albeit as he had to accept on appeal flawed, it could not amount to

“repeated inappropriate behaviour” even if it were determined that certain parts of the disciplinary process were unfair or unjust.

20. At a level of principle, I cannot accept this submission. The phrase “repeated inappropriate behaviour” in the definition must, it

appears to me, be construed in the context of the last sentence in the definition, namely, “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”. 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”. A disciplinary process which continued over a number of months and, as this one

did, consisted of several meetings and interactions between the plaintiff and the Principal and the Chairman of the Board, and the

latter inter se and with other members of the Board cannot, as a matter of principle, be considered to be either an isolated incident or

a once-off incident. Whether inappropriate behaviour which undermines dignity at work is to be considered as repeated for the

purpose of the definition must depend on an assessment of all the facts.

21. Similarly, at the level of principle the fact that the allegedly inappropriate behaviour is part of a disciplinary process does not, it

appears to me exclude it potentially constituting workplace bullying as defined if on an objective assessment of all the facts the

behaviour complained of meets the criteria in the definition of workplace bullying. The fact that it forms part a disciplinary process

may make it more difficult for a plaintiff to so establish. Accordingly, conduct or behaviour during a disciplinary process is not excluded

as a matter of principle, but rather, the entire of the relevant facts must be objectively assessed for the purpose of determining

whether or not the behaviour of the defendant of which the plaintiff complains objectively constitutes “repeated inappropriate

behaviour”, and if so, whether such behaviour is such that it could “reasonably be regarded as undermining the individual’s right to

dignity at work”.

Right to Dignity at Work

22. There was some discussion in the course of oral submission as to what were the essential elements of an employee’s right to

dignity at work. Counsel was unable to assist the Court with any authorities which have considered this issue in the context of the

definition of workplace bullying in the 2002 Order or otherwise. I am not aware of any consideration by a court which is of assistance.

Again, it appears to me dangerous to attempt to provide a general definition of the elements which constitute a person’s right to

dignity at work. Rather the Court should look at this in the context of the facts of this appeal and in particular both the context in

which the alleged inappropriate behaviour arose and the relationship between the plaintiff and the defendant and Principal of the

school. Where as on the facts of this case the Court is considering the right of the plaintiff as 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 disciplinary process.

Findings of trial judge

23. The case was at hearing for nine days before the trial judge. His judgment sets out in careful detail the facts and he makes

certain findings of primary facts and in other instances draws inferences from the facts found or the evidence which he accepted.

Where there was a complete clash of evidence he indicated in some instances the evidence of which witness he preferred to accept.

With the exception of inferences drawn as to the manner in which the Principal must have presented the facts to the board of

management meeting on 23rd November, Counsel for the defendant has not submitted that this Court should either set aside findings

made or draw different inferences. He has accepted in accordance with the principles set out in Hay v. O’Grady [1992] IR 210, he

cannot do so on this appeal having regard to the evidence before the trial judge. Counsel for the plaintiff in submission relied strongly

on the findings made and inferences drawn by the trial judge.

24. The trial judge having set out his findings of fact concluded that the defendant both directly and through its Principal were guilty

of repeated (or, as he put it, persistent) inappropriate behaviour which “wholly undermined” the plaintiff’s dignity at work. Central to

the trial judge’s reasoning, based on the findings of fact made, was that the plaintiff should not have been subjected to the

disciplinary process at issue as upon the true facts if known and discovered, as they ought to have been, it would have been

“entirely unfair and inappropriate to have initiated a disciplinary process against the plaintiff alone”. He also formed the view that she

was unfairly and inappropriately treated in the course of the disciplinary process. In my view, these were conclusions which he was

entitled to come to on the facts as found by him. The reasons for which I have formed this view in summary are the following.

25. The relevant facts commenced on 15th September 2009. At this time, the plaintiff had been employed as a Special Needs

Assistant (SNA) for approximately eleven years. It appears it was common case that she had discharged her duties as a SNA in that

period in a satisfactory manner, enjoyed good relations with teachers and other SNAs and the Principal, Ms. Dempsey and never had

any disciplinary issues or grievances save that there may have been some issues surrounding sick leave.

26. The school caters exclusively for children with intellectual disabilities. For approximately five years it had a room known as the

“Sensory Room” whose purpose it was to develop the sensory perception of pupils. The door of the Sensory Room had a lock on the

inside. Each pupil who used the Sensory Room had a programme designed for him or her by the occupational therapist which was

carried out by one or two Special Needs Assistants.

27. It was common case in the evidence before the High Court that prior to 14th September 2009, no instruction was given to the

SNAs either to lock the door of the Sensory Room whilst in there with a pupil or not to lock the door of the Sensory Room. It also

appears to have been common case that the Safety Statement of the school was entirely silent on any health and safety aspects

relating to the locking of the Sensory Room door.

28. The trial judge at para. 41 of his judgment found as a fact that there was “a general practice amongst many of the SNAs,

probably a majority of locking the Sensory Room door for the same reasons that the plaintiff locked it from time to time”. This finding

of fact has not been sought to be appealed and is one which the trial judge was entitled to conclude on the evidence and is central

to his reasoning and what he concluded was the wrongful singling out of the plaintiff for disciplinary process.

29. The further facts as recorded or found in the judgment relevant to my reasoning include the following. On 14th September 2009,

the plaintiff was in the Sensory Room with a young boy who suffered from ADHD and surprisingly he fell asleep. The plaintiff contacted

her then class teacher, Ms. Bramhall for instructions. She was told to allow the boy sleep for a further period. Ms. Bramhall in turn

was concerned and rang the Principal, Ms. Dempsey. Ms. Dempsey called to the Sensory Room and found the door locked and on her

third attempt to gain entry the door was opened by the plaintiff who it is found readily accepted that the door had been locked. The

question of it being locked or otherwise was not discussed and Ms. Dempsey confirmed the teacher’s instructions and ultimately the

child returned with the plaintiff to the classroom.

30. On the following day, the plaintiff was informed by the Principal that she was being investigated in the context of a disciplinary

procedure and in the afternoon there was a meeting between the plaintiff, another SNA, the Principal and Ms. Bramhall. The plaintiff

accepted that she locked the Sensory Room door and had done so over several years; she gave reasons relating to the non entry of

others and the prevention of the pupil described as a “runner” from leaving. She explained that she had not been told to lock nor had

ever been instructed not to lock the door. She contended that in April 2009, when the Principal came into the room with a number of

visitors and the plaintiff and another SNAs were present, the door had been locked. From the outset the plaintiff explained and

contended that locking the Sensory Room door was commonplace amongst the SNAs. The Principal’s note of the meeting was

produced to the trial judge and he noted that it did not record a need for further training of the plaintiff in the use of the Sensory

Room.

31. A further meeting was held on 18th September 2009, between the Principal, the plaintiff and Ms. Bramhall. At p. 21 of his

judgment, the trial judge appears to have accepted the evidence of Ms. Bramhall in relation to that meeting that it was for the

purpose of going through a programme for the child in question in the Sensory Room. It was identified that the child was unwilling to

get on the swing, notwithstanding that this was part of the programme. The trial judge records that “it was agreed that there would

be a four week period during which the operation of the programme of this child by the plaintiff would be reviewed”. Following that

meeting Ms. Bramhall drew up forms which listed all the activities in the programme and it provided for the ticking of those activities

on a daily basis depending on whether or not they had been accomplished by the child. The plaintiff was to complete the forms.

32. The trial judge rejected the evidence of the Principal that she had handed a letter dated the 18th September to the plaintiff. He

did so by reference to the reaction of the plaintiff to the letter when produced in cross examination and its inconsistency with the

other contemporaneous events. The trial judge found as a fact at para. 29 that the meeting of 18th September, was “solely

concerned with the suitability or otherwise of the child’s programme”. He further found that there was not “the slightest hint of any

threat to the plaintiff disciplinary or otherwise”.

33. During the next four weeks the plaintiff initially reported that she was unable to get the child to use the swing, but by the third

week, told Ms. Bramhall that she had persisted in trying and had succeeded in getting the child on to the swing, but sitting on it only

and not standing or lying on it, the other two prescribed activities relating to the swing. Early in the period the plaintiff had been out

of school for a couple of days and another SNA reported getting the child to use the swing.

34. At the end of the four-week period, Ms. Bramhall was conducting the anticipated review with the plaintiff and noticed that the

plaintiff had ticked the box on the form for lying on the swing and queried this with the plaintiff who, the trial judge held promptly

confirmed that this was wrong and sought Ms. Bramhall’s permission to change the form so as to make it more accurate. Ms. Bramhall

refused to allow her to do this and recorded this result on the review of the plaintiff’s performance as a “miscommunication”.

35. There was a further meeting on 19th October between the Principal, Ms. Bramhall and the plaintiff for the purpose of considering

Ms. Bramhall’s review of the plaintiff recorded on an SNA staff assessment form. The trial judge was unclear as to the reason for this

review, but nothing turns on that. In the course of the meeting, the trial judge found that “the plaintiff was challenged by Ms.

Dempsey for having initially recorded that the child the using the swing, as erroneously, Ms. Dempsey thought he was not supposed

to use the swing and secondly for filling out the form inaccurately”. He also held that “the plaintiff having been treated in this way,

was afflicted by an acute sense of unfairness and grievance and probably did react in a combative way by raising other issues with

Ms. Dempsey”. He was satisfied that the plaintiff felt she was being treated unfairly in this review and that she made it apparent.

36. Ms. Dempsey characterised the inaccurate completion by the plaintiff of the form as “falsification” and in her view it raised an

additional disciplinary issue. The trial judge records that forms of this kind had never been used before for this child or any child in the

school

37. The evidence of Ms. Dempsey as recorded was to the effect, that because of the failure of the plaintiff to improve and her

“falsification” of the forms, the disciplinary process needed to be revived and the matter brought to the attention of the Board for

what she described as “advice as to how to proceed”.

38. It is also recorded that at this time Ms. Dempsey also spoke to the chairman of the Board, Mr. Lynch who gave evidence in which

the trial judge found to have been “only concerned about the locking of the door, which he saw as wholly unacceptable because of

the child protection implications involved”.

39. It is important to note that the trial judge was very careful to accept that the locking of the Sensory Room door was a child

protection issue and that it was properly a matter of concern for the Board. His findings relate to the inappropriate singling out of the

plaintiff for disciplinary action without any investigation when as he held upon the true state of the facts it had been common

practice amongst the SNAs.

40. In advance of a scheduled meeting of the Board for the 23rd November, 2009, the plaintiff was informed by Ms. Dempsey that the

matter was going to be raised with the Board, but no further information was given. Ms. Dempsey, in her evidence, is recorded as

accepting that the plaintiff was merely told that “it” was going to the Board and no more.

41. The trial judge made the following findings in relation to what occurred between 15th September 2009 and the meeting of the

Board on 23rd November at paras. 40 and 41 of his judgment:-

“40. In the two months that had elapsed since 15th September 2009, I am quite satisfied from the evidence that Ms.

Dempsey did nothing to investigate the plaintiff’s contention that other SNAs locked the door of the Sensory Room, in

effect, that it was a common practice amongst SNAs. Ms. Dempsey gave evidence of having regular meetings with

teachers and SNAs over the school year so that over that time she would probably meet each member of staff once.

Whist this process continued in the two-month period between 15th September 2009, and the 23rd November 2009,

during which time she would probably have met four or five SNAs in this way, I am quite satisfied from the evidence that

she did not elicit their views on whether or not there was a practice amongst the SNAs of locking the Sensory Room door.

At a general meeting of SNAs on 20th October 2010, she did give an instruction that the Sensory Room door was not to

be locked, but it is quite clear that she did not conduct any inquiry at this meeting to ascertain whether or not there was

a common practice amongst SNAs of locking the door.

41. The evidence of the other SNAs who gave evidence in the case, and also the evidence of the plaintiff, which I accept in this

regard, establishes to my satisfaction that there was a general practice amongst many of the SNAs, probably a majority, of locking

the Sensory Room door for the same reasons that the plaintiff locked it from time to time.”

42. At the meeting of the Board on 23rd November, present were Ms. Dempsey, Mr. Lynch, the chairman, both of whom gave

evidence and four other members. The trial judge records from their evidence that once Ms. Dempsey had presented this matter,

which arose under “AOB” the other four members of the Board wanted the plaintiff to be instantly dismissed and it took some

persuasion from Mr. Lynch and Ms. Dempsey to dissuade them from that course. The evidence of Ms. Dempsey was that she outlined

the fully history of the matter to the Board and the trial judge records that the identity of the plaintiff was not revealed to the Board.

43. The defendants in submission do not accept that the inferences drawn by the trial judge in para. 48 in relation to the manner in

which Ms. Dempsey as a matter of probability presented the matter to the Board are justified and I have not relied on those in my

reasoning in this judgment. However, what the judge concluded and in my view is supported by the evidence and his other findings at

the commencement at para. 49 of his judgment is:-

“Specifically, it is quite clear, that what they [the members of the Board] were asked to consider was the gross

misconduct of a single SNA as distinct from a common practice amongst many SNAs, albeit unacceptable. Insofar as Ms.

Dempsey gave a history of the review process discussed above, it is probable she presented this, as she did in her

evidence, as a failure of training, culminating in the falsification of a document, a presentation of matters which was

undoubtedly untrue, unreasonable and grossly unfair to the plaintiff.”

44. The minutes of the Board meeting at item 7 and its subsequent action are recorded by the trial judge at para.s 45 and 46 and

were in the following terms:

“Issue with SNA’s performance. Pauline [Dempsey]outlined issues she had with an individual SNA. She has linked in with HR

in KARE. She wanted the support of the Board to issue a verbal or written warning under the term of the SNA’s contract.

Pauline to link in with HR in KARE to discuss the severity of the warning allowed for the presenting issues. All agreed to

support the recommendation. Also, there is a mechanism to suspend an increment if there is dissatisfaction with an SNA’s

performance. It was proposed that this should happen in this case in light of the situation Pauline outlined.”

Under the heading ‘Action’, the following is recorded in the minute:

“Pauline to liaise with HR in KARE and proceed with disciplinary action. Notify DES of deferral of next increment for this

individual.”

45. The next relevant event was when the Principal informed the plaintiff just before the Christmas break that she was going to get a

Part 4 Final Warning which would be given formally in the New Year. The judge was satisfied that in a discussion between the plaintiff

and Ms. Dempsey on inquiry the plaintiff was told that this would be on her record for six months.

46. On 18th January 2010, the plaintiff was asked to come to a meeting in the Principal’s office with Mr. Lynch. The plaintiff was

accompanied by a colleague SNA. The trial judge held that at that meeting the plaintiff was told by Mr. Lynch that she was to receive

a final stage Part 4 Final Warning for a breach in health and safety, the grounds of which were the locking of the Sensory Room door,

further she was told that this would be on her record for eighteen months. The judge also held that the plaintiff was shocked by

reason of the six month period indicated on 21st December 2009.

47. On the evening of 18th January, there was a Board meeting and the minutes record at Item 8 as set out at para. 53 of the

judgment:

“Issue with SNA performance

Met with the individual who was accompanied by another SNA. Talked through the issues and concerns and issued a

formal written warning. Draft letter read out to BOM. Pauline will liaise with HR re wording about building in reviews into

the letter etc. Deferral of increment was not applicable.”

Under the heading of ‘Action’, the following is recorded in the minute:

“Pauline to liaise with HR in KARE and proceed with letter.”

48. The judge found as a fact that despite what is recorded the issues were not “talked through” at the meeting with the plaintiff on

the 18th January.

49. On 20th January, the plaintiff was summoned to the room of the Principal and handed a letter signed by the chairperson of the

Board of management confirming the issue of the final written warning as per stage 4 of the disciplinary procedure. The letter is set

out in full by the trial judge and, inter alia, stated:

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

management into an incident that occurred on the 14th September, 2009, when you locked yourself and a child into the

Sensory Room. On conclusion of the investigation, the matter was discussed at the Board of management on the 23rd

November, 2009 and it was agreed at this meeting that you be issued with this warning.”

50. Following this letter, the trial judge made the following findings:

“56. It is to be observed immediately that the statement in the letter that an investigation was carried out at the request

of the Board of management is simply not correct. The Board of management knew absolutely nothing of the locked door

incident on 14th September, or of any other issue concerning the plaintiff, until the meeting of 23rd November 2009,

when, for the first time, they were given Ms. Dempsey’s account of the matter. It is plainly obvious that after the Board

of management meeting on 23rd November 2009, there was no further investigation other than queries addressed by Ms.

Dempsey and Mr. Lynch, one to the Department of Education and Science with a view to deferring any increment in salary

due to the plaintiff, and the other to KARE, solely with regard to the terms of the final written warning.

57. It transpired, on inquiry to the Department of Education and Science, that the plaintiff was not due an increment for three or four

years, and therefore the defendants were unable to activate that penalty.

58. It useful to reflect on what had happened to the plaintiff up to this point in time. The plaintiff was subjected to a disciplinary

sanction of a severe kind which was unmerited. By this, I mean that the offence of locking the Sensory Room door, which the

defendants were entitled to regard as unacceptable, was undoubtedly a common practice amongst the SNAs, and had the

defendants, and in particular, Ms. Dempsey, carried out the appropriate enquiries after 14th September 2009, at that time, that would

undoubtedly have been readily ascertainable. She did not do that. As a consequence, the picture presented to the Board on 23rd

November 2009, was of individual misconduct on the part of the plaintiff.”

51. Having further expanded on these matters, he then reached the conclusion at para. 63 of his judgment:-

“63. I am quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely

“inappropriate” within the meaning of the definition of bullying in the workplace.”

52. Next the plaintiff was asked to come to a meeting with Ms. Dempsey on the 27th January 2010, in respect of which there appears

to have been a total conflict of evidence between the plaintiff and Ms. Dempsey. There were not other parties present and the trial

judge accepted the evidence of the plaintiff as to what happened in this encounter. It is not submitted on appeal that he was not

entitled to do so. This was clearly a question of assessing the relative credibilities of the witnesses in relation to the account of this

meeting. The judge records in short form the evidence which he accepted of the plaintiff that “she was subjected to a considerable

variety of denigration which belittled, humiliated and reduced her to tears”. Ms. Dempsey is recorded as having denied all of those

allegations apart from having mentioned to her “that she had exhausted her use of sick leave and to be more careful on that matter in

the future”.

53. Thereafter, the plaintiff went to her Union and a letter was sent by Mr. Mullen of IMPACT to Mr. Lynch in which he sought on her

behalf to appeal against the sanction imposed on the grounds relating to the process and sanction and specifically stated:-

“The procedures in place in St. Anne’s had not made it clear that locking the Sensory Room was a health and safety

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

previously.”

54. Thereafter, a meeting was arranged for 23rd March 2010, attended by Mr. Lynch, Ms. Dempsey, the plaintiff and Mr. Mullen. The

judge records Mr. Mullen as seeking to persuade the defendants to remove or withdraw the final letter of warning and advocated the

closing of the door had been common practice amongst the SNAs. The plaintiff again mentioned the occasion in April 2009, when she

and Ms. O’Connell were in the room and Ms. Dempsey had come to the room with a number of visitors and the room was locked. The

judge records Ms. O’Connell as giving evidence to that effect. The outcome of that meeting was the Mr. Lynch requested inquiries be

made of the SNAs to ascertain whether or not there was a practice to lock the door and also at the meeting the trial judge records

Ms. Dempsey as having said that she conducted inquiries of approximately 70% of the SNAs none of whom admitted locking the door.

55. Following the meeting on 23rd March, the plaintiff devised a questionnaire which was put to her SNA colleagues with two

questions:

1. Having you ever locked the Sensory Room door?

2. Have you ever been asked by Pauline Dempsey “have you ever locked the Sensory Room door”?

56. Four SNAs answered the questionnaire. All four of whom answered “yes” to the first question and only one SNA answered “no” to

the second question. The trial judge accepted evidence from the plaintiff that many more of the SNAs were willing to answer the

questionnaire in the affirmative, but only if they would do so anonymously.

57. On 22nd April, Mr. Mullen wrote further to Mr. Lynch referring to the appeal, the questionnaire and seeking a decision on the

appeal.

58. The next meeting of the Board on 26th April, appears from the minutes recorded by the trial judge to have considered the letter

of the 22nd April and agreed that Ms. Dempsey would speak with the SNAs.

59. On 20th May, Mr. Lynch responded to Mr. Mullen in substance saying: “The Board of management considered the contents of your

letter and have decided to stand over their original decision with regard to this matter”. However, as the trial judge records there was

no meeting of the Board prior to the dispatch of that letter and the Board’s agreement to that effect was recorded in the minutes of

a meeting of 8th June, 2010, which makes no reference to any consideration of the outcome of the inquiries by Ms. Dempsey amongst

the SNAs as to what the position was with regard to locking the door.

60. The trial judge reached the following findings at para. 75 of his judgment:-

“I am quite satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff,

namely, that the locking of the door was a common practice amongst the SNAs. At this late stage, when the Board had

been alerted to the plaintiff’s case in this regard, they declined to give it any due consideration.”

61. Thereafter a letter was written in May or June 2010, by the plaintiff’s solicitors. This was initially responded to by Mr. Lynch on

28th June indicating that the issues raised would be discussed by the Board at the meeting of 20th September. Subsequent to that

meeting, Mr. Lynch responded in some detail in which, inter alia, he denied “any question of bullying or harassment” of the plaintiff

who it was contended “has at all times been treated with the utmost sensitivity and has been afforded all of the entitlements due to

someone in her position." He then continued:-

“Whilst it may very well 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

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. . . .”

62. The trial judge quoted the letter in full and commented on a number of other matters including a reference to the necessity “on a

number of occasions over the past several years to raise with your client the question of her uncertified absences on sick leave.”

63. Following a consideration of these exchanges the trial judge reached the following conclusions at paras. 87 and 88 of his

judgment:-

“87. Up until March 2010, it may have been the case that the Board were not aware of the merits of the case being made by the

plaintiff, namely, that it was a common practice among SNAs to lock the door of the Sensory Room, notwithstanding that Ms.

Dempsey, the Principal, was well aware of the plaintiff’s case. However, from March 2010, onwards, there can be no doubt but that

the Board were clearly alerted to the plaintiff’s case, and from not later than April 2010, were also aware that several other SNAs also

occasionally locked the Sensory Room door. The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful

consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a

fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all, consider the merits of the plaintiff’s case at

this late stage when they were aware of the impact that their now erroneous and unjust decision was having on the plaintiff was, in

my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.

88. 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.”

Conclusion on First Ground of Appeal

64. In my view, it was open to the trial judge to make the findings made and he was correct in determining that there was repeated

inappropriate behaviour by or on behalf of the defendant, and objectively, it was behaviour which could reasonably be regarded as

undermining the plaintiff’s right to dignity at that work. As stated at the outset of this judgment, the right to dignity at work in the

context of a potential disciplinary process includes a right to be treated with respect, fairly and not less favourable than colleagues in

a similar position. Further, 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. This was precisely the effect of the repeated inappropriate behaviour by

the defendant both directly and through its Principal on the plaintiff having regard to the findings made by the trial judge.

65. In reaching this conclusion, I fully recognise that the locking of the Sensory Room door was properly considered by the Board to

be a serious child protection issue. However, the door was fitted with a lock; it was agreed that no instruction had been given to

SNAs not to lock the door; the trial judge, held it was a common practice amongst SNAs to lock the door; also, that such contention

was immediately made by the plaintiff to the Principal. He further held that the Principal, prior to presenting the matter to the Board

of management on 23rd November, failed to conduct any inquiry amongst the other SNAs as to whether they did or did not have a

practice of locking the Sensory Room door, but on 20th October, she considered it necessary to give a general direction to the SNAs

not to lock the Sensory room door. The presentation by the Principal to the Board of the issue as a disciplinary matter relating to the

plaintiff alone was, in my view, on all the facts held, objectively inappropriate behaviour. The inappropriate behaviour was repeated in

the pursuit by the Principal with the support of the Board, as recorded in the minutes of the meeting of 23rd November, of a severe

disciplinary sanction against the plaintiff. The Board itself, in my view, was guilty of inappropriate behaviour in furnishing a letter in

which they gave as the basis for the stage 4 warning being issued to the plaintiff to be “as a result of the investigation that was

carried out at the request of the Board of management into an incident that on the 14th September, 2009 . . . .” when as held by the

trial judge that was simply “not correct” as no such investigation was carried out. On the findings of the trial judge, the behaviour of

the Principal during the meeting of 27th January 2010, with the plaintiff was inappropriate. Finally, there was, as determined by the

judge, at a time when the Board were made aware of both the plaintiff’s case and the fact that several other SNAs also occasionally

locked the Sensory Room door, the rejection of the plaintiff’s appeal without any meaningful consideration of the plaintiff’s case and

the subsequent failure and refusal by the Board in the autumn of 2010, when given a fresh opportunity to consider the merits of the

plaintiffs’ case at that late stage. The above repeated inappropriate behaviour is such that objectively it could reasonably be

regarded as undermining the plaintiff’s right to dignity at work.

66. Accordingly, I would dismiss the defendant’s appeal against the conclusion reached on this issue by the trial judge.

Causation and Future loss of Earnings

67. I have read in draft the judgment of the President. I agree with his conclusion that there was evidence upon which the trial judge

was entitled to hold that the plaintiff suffered a psychiatric illness caused by the said conduct of the defendant. I also agree with the

President that the appeal against the award of €47,000 for future loss of earnings in the absence of a claim for same must be

allowed.

Decision

68. I would dismiss the appeal except in relation to the future loss of earnings and hold that the High Court order should be varied by

reducing the amount of the damages awarded by €47,000 to €208,276.39.