The jurisprudence from the courts on the topic of bullying continues to evolve. The case law demonstrates that there are many obstacles to overcome for employees to succeed. However certain key elements have been identified as necessary in order to progress a claim. The employee needs to be able to show a breach of duty on the employer's part, causation and foreseeability, that the act complained of constituted bullying (as identified above) and that this caused or at least contributed in a significant manner to the psychiatric injury complained of.
Two recent decisions are of particular note for both employers and employees regarding what constitutes workplace bullying.
Glynn v Minister for Justice
In this case ( IEHC 133
), the High Court rejected a claim by a civil servant employed on clerical duties at a Garda station that she suffered stress as a result of being bullied and harassed. The case provides a useful set of guidelines in distinguishing between three key terms that are commonly and sometimes incorrectly interchanged in the context of workplace bullying, namely occupational stress, workplace stress and bullying.
The Court confirmed that occupational stress is not actionable. It is something which every employed person may experience at some stage of their working life and can occur for a variety of reasons, many of which are unrelated to bullying. Workplace stress can be actionable if certain legal criteria are satisfied. It can however also be the result of behaviour which falls short of bullying. The differentiating factor is that it lacks the degree of deliberateness which is the hallmark of bullying. Bullying itself is more deliberate and is one of the more obnoxious traits in human behaviour. It involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct intended to reduce that person's self worth.
The High Court adopted the principles set out in Quigley v Complex Tooling and Moulding Ltd  IESC 44 where the Supreme Court accepted the definition of bullying set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration Order) 2002 (SI No 17 of 2002) as 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 the definition may be an affront to dignity at work but as a once off incident, it is not considered to be bullying.
This case also reiterates that bullying must involve an objective element and not comprise solely of a subjective test. The Court said that for reasons of common sense the test must be an objective one, otherwise most employers would be vulnerable to allegations of bullying based purely on subjective perceptions of employees.
Una Ruffley v The Board of Management of St Anne's School
The Court of Appeal (CA) recently overturned ( IECA 287) what was the largest bullying award to date directed by the Courts. In the case of Una Ruffley v the Board of Management of St Anne's School  IEHC 235, the High Court had awarded a special needs assistant the sum of €255,276 in compensation and loss of earnings as a result of bullying which she suffered in the workplace. The High Court was of the view that the employer's disciplinary process and the unfair treatment afforded to the employee could be described as bullying.
By a majority of two to one, the CA overturned that decision and found that the employee had been treated unfairly by a botched disciplinary process but that the conduct of the school management did not come close to meeting the definition of bullying set out in Quigley v Complex Tooling and Moulding Ltd (referred to above). The Court found that the definition of bullying as set out above had to be stretched beyond breaking point to fit this case. The CA was also concerned that, if the High Court decision stood, it would widen the tort of bullying to all sorts of situations it never intended to cover.
At its worst, the Court stated that it was a hopelessly flawed disciplinary process, however regardless of the flaws it was not a case of repeated inappropriate offensive behaviour intended to destroy the employee's dignity at work. The Court found just one incident that might be interpreted as showing inappropriate behaviour on the part of the school that could have undermined the employee's dignity at work. However this was an isolated incident and didn’t follow the repeated pattern necessary to qualify under the definition set out above.
The above cases provide some useful takeaways for employers in dealing with issues and allegations of bullying in the workplace. These include:
- The need to have a detailed bullying policy in place, so that if and when an incident arises an employer knows how to deal with it.
- Reaffirming that the definition of bullying as set out in the Industrial Relations Act Code of Practice stands.
- The test to be applied in determining whether or not behaviour could be regarded as undermining the individual's right to dignity at work is an objective one.
- A once off action does not amount to bullying – there has to be a repeated pattern.