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Has the Supreme Court Decision in Ruffley Established a Higher Threshold for Bullying?
The eagerly awaited Supreme Court decision in Ruffley v The Board of Management of Saint Anne’s School has now been delivered. The importance of this case is demonstrated by the Supreme Court’s own acknowledgment that “at some level, this novel case will set a benchmark for all bullying claims”.
In appearing to limit the type of conduct that can be viewed as bullying, this benchmark is one that is likely to be welcomed by employers.
This case arose from the imposition, in January 2010, of a disciplinary sanction against a Special Needs Assistant (Ms Ruffley) by the Board of Management of St Anne’s School. Ms Ruffley claimed to have been bullied in the course of the disciplinary process, resulting in a serious impact on her mental health, and in respect of which she sought to recover substantial damages in the High Court.
In 2014, the High Court made an aggregate damages award of €255,276 in favour of Ms Ruffley, where O’Neill J. held that Ms Ruffley had been subjected to “persistent, inappropriate behaviour” which “wholly undermined the plaintiff’s dignity in work”. In this regard, O’Neill J. applied the definition of bullying found in the Code of Practice on Addressing Bullying in the Workplace, namely:
“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.”
However, O’Neill J’s judgment was subsequently appealed to the Court of Appeal, and was overturned by a 2:1 majority, with Irvine J and Ryan P finding in favour of the appeal, and Finlay-Geoghegan J dissenting.
While acknowledging the fact that “the Board may have conducted the investigative and disciplinary process in [a] hopelessly flawed manner”, Irvine J. concluded that “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 right to dignity in the workplace for a period of over one year as was found by the trial judge”. In particular, Irvine J considered that in order to constitute repetition, the events relied upon had to be reasonably proximate to each other.
In dissent, Finlay-Geoghegan J concluded that “a right to dignity at work includes a right to be treated with respect and fairly…and not singled out unfairly from colleagues in a similar position in such [a] disciplinary process.” On that basis, Finlay-Geoghegan J held that a breach of fair procedures could amount to bullying in its own right.
Why is this decision so important?
This is not the first time that a workplace bullying case has reached the Supreme Court. In Quigley v Complex Tooling & Moulding Ltd, Fennelly J. held that in order to give rise to a claim for damages “bullying must be (i) repeated, (ii) inappropriate, and (iii) undermining of the dignity of an employee at work” and further that “where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.”
This test is not in dispute, and is the test that was applied in both the High Court and Court of Appeal in this case. What has been lacking to date is clarity as to what this test actually means in practice. In particular, it has not been clear where the threshold lies between workplace conduct that an employee typically finds stressful and upsetting (e.g. disciplinary procedures) and conduct that constitutes bullying.
Over the course of separate judgments delivered by O’Donnell J. and Charleton J, both in favour of dismissing Ms Ruffley’s appeal (and with no judges dissenting), it is evident that this threshold is unanimously considered by the Supreme Court to be a high one – indeed, according to Charleton J, a “very high” one.
What constitutes bullying?
Both O’Donnell J. and Charleton J agree that the test for bullying applied in Quigley remains in force, and that each component of that test should be assessed separately and sequentially.
This means that each element of the test must be fulfilled – which O’Donnell J describes as “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.” What this means in practice is that unless there are repeated incidents of inappropriate conduct, each of which individually undermines an individual’s right to dignity at work, then the test for bullying is not fulfilled.
Charleton J’s judgment makes it clear that this test is objective, not subjective, and that an “employer is entitled to expect ordinary robustness from its employees”. In a passage that may be of relief to employers, Charleton J specifically distinguishes normal management interactions from bullying:
“Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.”
In a similar tone, in seeking to identify the type of behaviour that undermines an individual’s dignity at work, paragraph 66 of O’Donnell J’s judgment states as follows:
...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” (emphasis added).
A higher threshold for bullying?
On its face, this interpretation means that if the conduct that is complained of does not objectively fall within one of the limited categories highlighted above, then it cannot be viewed as bullying. If that is the approach that is adopted in practice, then this appears to substantially limit the type of conduct that has, to this point, been considered as potentially constituting bullying.
Charleton J states that “the test for bullying is of necessity to be set very high”. This case is the clearest exposition of that view to date. It remains to be seen if this case will provide “the guidance not merely to lower courts, but as importantly, to litigants and potential litigants” that O’Donnell J expressly seeks to provide, but it certainly should provide a fillip for employers (and their advisers).