Employers should be aware that where an investigative or disciplinary actions for bullying are taken, this may well put the employer on notice of possibility of injury to the employee if they do not take further action to manage the situation between colleagues. Codes of practice and procedure are admissible in evidence in Court and if an employer has disciplinary procedures in place and they are departed from, this may be used in a case against the employer. Further, if conducting any investigation or disciplinary processes these should be in line with the principles of natural justice lest the process itself become a mechanism by which the employee may experience unfair treatment.
In Breen v. Iarnrod Eireann High Court, Unreported Judgment of 16th October 2014, the failure of an employer to put in place any steps to deal with the outcome of an internal investigation where bullying was found to have occurred, met the foreseeability test. An internal investigation had found that the plaintiff had been subjected to bullying by a colleague with whom he had limited interaction (mere minutes) during shift handovers. Kearns P pointed out that the employee found to have bullied the plaintiff had not accepted the findings of the internal investigation, which in itself should have alerted the defendant to the possibility of a recurrence of the bullying.
In Ruffley v Board of Management St Anne’s School  IEHC 235 the High Court awarded the largest ever amount in general damages for a bullying claim €255,276. Here the plaintiff claimed damages for bullying and harassment which allegedly occurred over a one year period in the course of her work as a special needs assistant (“SNA”). There were no disciplinary or grievance issues during the plaintiff’s 11-year employment with the defendant until September 2009 when the defendant’s principal informed the plaintiff that she was treating the plaintiff’s locking of the door to the school’s sensory room, whilst inside with a pupil, as a disciplinary matter. The Court considered the various communications that subsequently occurred between the plaintiff and the principal and found that the principal’s communication to the plaintiff to be out of place, oddly heavy-handed and unrelated to what had actually happened at two previous meetings with the plaintiff. The Court found the principal’s subsequent dealings with the plaintiff, in the context of a review process of the child’s programme, to be irrational and her inclusion of “trumped up” charges relating to performance and conduct to be reprehensible. The Court was satisfied that the principal informed the plaintiff that the matter was to be brought to the next meeting of the defendant in November 2009. However, the plaintiff was not provided with any detail of what was being brought to the board; was not afforded an opportunity to represent herself in any way; nor was she informed that there might be an adverse disciplinary outcome for her. At the said meeting, under any other business, an issue relating to an SNA’s performance was recorded together with the defendant board’s support for the principal’s recommendation that a disciplinary sanction issue in the circumstances. The Court did not think that the defendant board members could have come to the conclusions it did without the principal’s account of the situation being grossly misleading, unfair to the plaintiff, and the locking of the sensory room presented as an instance of individual misconduct on the part of the plaintiff. The Court considered the principal’s conduct in the lead up to the defendant’s board meeting, and what happened at it, to be a departure from all of the norms of natural justice.
The Court was further satisfied that the principal’s treatment of the plaintiff throughout the disciplinary process was entirely inappropriate within the meaning of workplace bullying. The plaintiff was formally advised by the defendant’s chair and principal, almost two months after the defendant’s meeting, that she was to receive a final stage 4 warning for a breach of health and safety in and around the locking of the sensory room door and that this would remain on her record for 18 months. The plaintiff sought the assistance of her union at this stage and an appeal against the disciplinary sanction was formally lodged. Notwithstanding, the Court was satisfied that the defendant’s subsequent ratification of its decision to uphold the sanction was taken without any meaningful consideration of the merits of the plaintiff’s case and further flawed in that the decision maker, on appeal, was the same as had made the decision appealed against. The Court was further satisfied that the defendant persisted in its unfair and inappropriate treatment of the plaintiff when, on foot of correspondence from the plaintiff’s solicitors, it was given a fresh opportunity to consider the merits of the plaintiff’s case. The Court found that the persistent, inappropriate behaviour of the defendant wholly undermined the plaintiff’s dignity at work. The Court awarded the plaintiff the total sum of €255,276 in general damages for the psychiatric injury suffered and special damages for loss of earnings.
(Note – This case is now under appeal under various headings, one of which is that could the treatment fall under the definition of bullying in the code of practice as, if the plaintiff was not present at the board meetings could her dignity at work have been undermined.)