Workplace Bullying and Harassment in Ireland in 2017

Workplace Bullying and Harassment in Ireland in 2017

Workplace bullying and harassment has received a root and branch assessment by the Supreme Court in the recent decision of Ruffley v The Board of Management of St. Anne’s School.

The Ruffley decision is a watershed development in the history of the legal treatment of workplace bullying and harassment in Ireland.  Employers can expect the Supreme Court analysis in this case to be the go to resource when analysing any approach to dealing with workplace bullying and harassment issues.

This article sets out an analysis of the commentary of the key findings of the Supreme Court.  Sharp focus is placed on the current and up to date legal position in respect of how workplace bullying and harassment are treated.

The Ruffley decision is a balanced one in our view.  It provides insight for employers into how the Supreme Court seeks to balance an employer’s operational imperative to performance manage employees while also conducting robust disciplinary processes where necessary.  The decision brings welcome clarity to the law in this area and reframes workplace bullying and harassment such that fairness prevails and business can be done.

Why is the Ruffley Decision a Watershed Decision in Irish Law?

In some significant detail, the justices of the Supreme Court examine the development of the law dealing with workplace bullying and harassment over the past 15 years.  They take the opportunity to provide detailed guidance on the fair procedure principles that govern cases of this kind.

In Ruffley, the Supreme Court confirms the definition of bullying as set out in the Workplace Declaration order 2002 (SI Number 17/2002).  By way of refresher the definition reads 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, it is not considered to be bullying.’ 

[Emphasis added]

In Ruffley, it was accepted by the High Court, three judge Court of Appeal and the seven judge panel of the Supreme Court, that this definition is an appropriate legal definition of workplace bullying.

The Supreme Court considered the definition in detail and called out in particular what the following three phrases mean:

  1. Repeated behaviour
  2. Inappropriate behaviour
  3. Behaviour reasonably capable of undermining the individual’s right to dignity at work

Repeated Behaviour 

The Common Denominator: The Sequential Test

Both the Court of Appeal and the Supreme Court observed that each component of the 2002 definition of workplace bullying can usefully be considered separately and sequentially.   That said the Supreme Court cautions against the three elements of the test being considered as separate and self standing tests for the purposes of determining whether a workplace bullying and harassment allegation is well founded or not.   The Supreme Court pointed out that the three terms take their colour from each other.  The three concepts are incremental.

Employers must now consider the question of repeated conduct such that the repeated conduct can be said to be ongoing over a period of time.  In the Ruffley decision, repeated conduct was found to have existed in circumstances where the conduct lasted over a period of a year even though there were significant delays within that timeframe during which no contact took place between the parties.

Recommendation  

A key question to be asked in any workplace investigation regarding bullying and harassment is whether the accused employee is guilty of repeated inappropriate behaviour against the alleged victim over a discernible timeframe which could reasonably be regarded as undermining the alleged victim’s right to dignity at work.

Commentary

In Ruffley, the Supreme Court offers employers clear guidance when assessing the meaning of the word ‘repeated’ inappropriate behaviour.  It is clear that conduct must be repeated, and must not merely consist of a number of incidences.  Conduct must be inappropriate and not merely wrong.  It is not enough that conduct is inappropriate and even offensive as a matter of ordinary human definition.  The conduct to constitute ‘repeated inappropriate conduct’ for the purposes of the legal definition of workplace bullying must be conduct that is reasonably regarded as undermining the individual’s right to dignity at work.

Once off Incidents

The Supreme Court confirmed that a single once off incident may be an affront to dignity at work.  However, as a once off incident, the incident cannot be considered to be bullying as a matter of law.

Inappropriate Behaviour

It is impossible for the Supreme Court or any of us to decipher an exhaustive list of what could constitute inappropriate behaviour in the workplace.  That said, the Supreme Court did take the opportunity to comment on what types of behaviour it would consider to be inappropriate as a matter of law.  These behaviours include:

  • Purposely undermining an individual
  • Targeting an individual for special negative treatment
  • The manipulation of a person’s reputation
  • Social exclusion or isolation
  • Intimidation
  • Aggressive or obscene behaviour
  • Jokes that are obviously offensive to one person
  • Intrusion by pestering
  • Spying and stalking

These examples of inappropriate behaviour all share the feature that they are unacceptable at the level of human interaction.  This type of inappropriate conduct is in turn consistent with the concept of human dignity being protected in the workplace and at law.

Dignity at Work

In Ruffley, the Supreme Court reminds employers of their responsibility to carefully consider the meaning of the phrase ‘Dignity at Work’ when examining a workplace bullying and harassment complaint.

Repeatedly, the Supreme Court points to the regrettable scenario where the Board of Management of St Anne’s School did not ‘take a moment’ and ‘step back’ and seek to have the matters at issue in that particular set of factual circumstances dealt with in a more compassionate and sympathetic manner.

Dignity in the context of Irish law is not a new phenomenon.  It is referred to in the preamble of the 1937 Constitution in the context of a fundamental rights guarantee.  Dignity is afforded a pre-eminent legal status in the Constitutions of many countries including Germany and Israel.  In the Irish legal context, dignity has been evoked in the context of martial privacy (McGee v The Attorney General [1974] I.R. 284), the criminalisation of male homosexuality (Norris v The Attorney General [1984] I.R.36), the withdrawal of treatment from a patient in a permanent vegetative state (In Re A Ward (Number 2) [1996] 2 I.R. 79) and the prohibition on assisted suicide (Flemming v Ireland [2013] 2 I.R. 417).

In the workplace bullying and harassment context, to establish that a person’s right to dignity has been damaged, it is necessary to show some intent to injure and cause distress or recklessness on the part of the accused employee (Wilkinson V Downton [1897] 2 QB57).  The conduct on the part of the accused employee must be intentional and calculated to cause distress in order to constitute a well founded claim for bullying and harassment.  A claim for bullying against an accused employee will certainly be strengthened significantly if there is objective proof of malice found to exist in the course of a workplace investigation.  An allegation by the alleged victim that they are being pursued vindictively by one or more persons within the workplace will certainly make it easier for them to establish that conduct was inappropriate and undermined their right to dignity at work.

Conduct which occurs in private can be a contributory factor of a properly made claim for workplace bullying and harassment.  It is possible to treat someone inappropriately and undermine their dignity, without the conduct being witnessed.

In the event that an investigation in the workplace uncovers an element of public humiliation, this will lend itself to strengthening an alleged victim’s complaint.

Commentary

The import of the Ruffley decision to how employers deal with the question of investigations and disciplinary procedures into workplace bullying and harassment from now on cannot be understated.  The decision clarifies the lines between the principles of fair procedure and bullying and further the lines between robust disciplinary action and bullying.

It is clearly apparent from the judgement in Ruffley that there is a desire on behalf of the Supreme Court to bring clarity to the law in this complex area.  Indeed, Mr Justice O’Donnell noted that

at some level this novel case will set a benchmark for all bullying claims’.

Mr Justice Charleton remarked that in considering cases like this,

conduct is being judged according to the standard of human beings’ and ‘not that of angels’.

While workplace bullying can never be tolerated, the approach taken by the Supreme Court will assist employers in dealing with what might be described as a retaliatory allegation of bullying and harassment where an employee’s work performance is at issue.  The decision offers clarity to a situation where an employer is dealing with circular claims of bullying and harassment from an employee who is also going through performance management procedures.

Our recommendation is that employers should proceed with vigilance in managing workplace bullying and harassment cases.  This vigilance will necessarily include a full and comprehensive review of workplace bullying and harassment procedures in light of the commentary in the Ruffley decision.

The Supreme Court’s judgments in Ruffley gives employers the clarity that was lacking in previous judgments in our view.  The rationale outlined in the decision positions employers to carefully, fairly and robustly manage workplace bullying and harassment cases.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice.  We recommend that legal advice is always taken before acting on any of the matters discussed.   

2018-03-12T11:57:44+01:00