Justice O’Neill delivered the recent judgement in Ruffley -v- Board of Management St. Anne’s School [2014 IEHC 235] on the 9th day of May 2014. This case concerned bullying and harassment and a full copy of the judgement is available here.
The plaintiff in this case claimed damages for bullying and harassment which she claimed occurred between 14th September 2009, and 27th September 2010, in the course of her work as a Special Needs Assistant (SNA) in the defendants’ national school known as St. Anne’s located at the Curragh, County Kildare.
The Court noted that the school catered exclusively for children with physical and/or intellectual disabilities. One of the central issues in the case concerned a lock on the inside of the door to a room known as a “Sensory Room”. The purpose and function of the room was to develop the sensory perception of pupils by exposing them to a variety of sensory experiences such as music, vibration, movement, light and colour. To successfully carry out the programme, it was necessary to ensure that during the programme there would not be distractions such as the intrusion of others. At issue in this case was whether or not there was a common practice amongst SNAs of also locking the door whilst a pupil was going through his or her programme in the Sensory Room, using the lock on the inside of the door.
From January 1999 until September 2009, it was common case that the plaintiff discharged her duty as an SNA in a satisfactory manner, enjoyed good relations with teachers, other SNAs and the Principal and had never had any disciplinary issues or grievances during that 11-year period.
On 14th September 2009 the plaintiff was in the Sensory Room with a young boy after 1pm. Soon after the programme began, and when this pupil lay on a mat or mattress, he fell fast asleep. The plaintiff went to the telephone outside the Sensory Room and telephoned the class teacher for instructions. The teacher instructed the plaintiff to allow the pupil to continue sleeping for a further period of 20 minutes before bringing him back to the class. The plaintiff rang the Principal and asked her to check if this was correct. The principal found the door locked and on her third attempt to gain entry, the door was opened by the plaintiff who readily accepted that the door had been locked.
The following day the plaintiff was requested by the Principal to come to her office and was informed by the Principal that she was handling the matter in the context of the disciplinary procedure. The plaintiff’s evidence, corroborated by other SNAs who gave evidence, that it was a common practice amongst the SNAs to lock the Sensory Room door whilst conducting a pupil’s programme and that no instruction had ever been given not to do this, and neither had any instruction been given to do this.
In the course of this meeting, the plaintiff accepted that she had locked the Sensory Room door and that she had done this over several years. She explained that the reason for doing this. The plaintiff felt her explanation of why she had locked the Sensory Room door had been accepted by the Principal and that was the end of the matter. The plaintiff subsequently received a letter dated 18th September 2009 which provided:
“Dear Una, Further to our meeting regarding the incident during which you locked the door to the Sensory Room whilst you were inside with a pupil. The evidence has been reviewed and the situation has been considered. You appear not to be clear about the protocol around the use of the Sensory Room. Because of that, we are not going to take disciplinary action. However, this is a serious situation and one for concern. You were informed that you are being formally counselled with regard to the incident.To ensure that it does not happen again, we will put in place a series of procedures which will include the following:
1. The class teacher will discuss and work with you on the effective use of the Sensory Room. This will include a list of activities and procedures which you will carry out when using the room.
2. Activities performed be logged on a recording sheet.
3. The situation will be reviewed with you by the class teacher for a period of three months and this will be recorded on the staff review form.
If the required improvement is not made or if there is any such breach of discipline in any aspect of your work performance, this may result in disciplinary action.I am available, should you wish, to discuss any of the above…..”
At the end of the four-week period the principal conducted the anticipated review with the plaintiff whereby he plaintiff sought permission to change the form so as to make it accurate. This was refused and recorded on the plaintiff’s performance as a “miscommunication”.
Justice O’Neill observed that “…the content and tone of the letter of 18th September 2009 seem oddly heavy-handed and unrelated to what actually was happening in the meetings of 15th September 2009, and 18th September 2009…”. The plaintiff also denied receiving the letter of 18th September 2009 which the court accepted. In respect of the principals’ review of the plaintiff’s performance conducted over the four-week period whereby she concluded that there had been no improvement and that the falsfication of the form was a further disciplinary issue, the court observed:
“…. the conclusion that there had been no improvement is not only groundless but seems to have wandered into the realm of irrationality”
Around this time the matter was also raised with the Chairman of the Board of Management of the school who seemed to have been only concerned about the locking of the door. A further meeting was held between the plaintiff and the principal on 12th November 2009, the purpose of which was to move the plaintiff into the class of the Deputy Principal.The next meeting of the Board was scheduled for 23rd November 2009. The plaintiff was not told any detail concerning the material that was to be put before the Board or what proposal, if any, the Board was to be asked to consider or what possible outcome there might be insofar as the plaintiff was concerned. The plaintiff was given no written material concerning what might transpire at the Board meeting. The plaintiff was not told that there might be any adverse disciplinary outcome so far as she was concerned, nor was she told that it was the intention of the Principal to seek a disciplinary sanction against her.
The court observed that the principal did nothing to investigate the plaintiff’s contention that other SNA’s locked the door of the Sensory Room. At a general meeting of SNA’s on 20th October 2010, the principal gave an instruction that the Sensory Room door was not to be locked but no inquiry was conducted to ascertain whether or not there was a common practice amongst SNAs of locking the door.
Justice O’Neill accepted that it was reasonable of the defendants, both for health and safety reasons and for reasons of child protection, to insist on a prohibition on locking the Sensory Room door. He further observed that once the problem came to light in September 2009, it was easily resolved by way of appropriate instruction.
When the matter came before the Board meeting on 23rd November 2009, the minutes recorded an issue with SNA’s performance. It recorded a mechanism to suspend an increment if there was dissatisfaction with an SNA’s performance. The action points were to notify the DES of a deferral of the next increment for this individual.
Justice O’Neill further observed that “it is extraordinary to realise that the identity of the plaintiff was never revealed to the Board and was known only to Ms. Dempsey and Mr. Lynch“. In addition he noted that the principal’s history to the board was “almost certainly untrue, highly biased, coloured, and grossly and unfairly damnified the plaintiff….” To say that the conduct of Ms. Dempsey in relation to the lead up to this Board meeting and what happened at it was a departure from all of the norms of natural justice is a feeble understatement.”
On 18th January 2010 the plaintiff was asked by the principal to come to a meeting in her office. The plaintiff was accompanied at that meeting by a colleague SNA. At that meeting, she was told that she was to receive a Final Stage Part 4 warning for a breach of health and safety, the grounds of which were the locking of the Sensory Room door. She was told that this would be on her record for 18 months.
A further meeting of the Board of management of the defendants took place on the evening of 18th January 2010 whereby an announcement was made that the plaintiff was to get a Part 4 Final Warning. On 20th January 2010, the plaintiff was again summoned to the office of the principal and was handed a copy of a letter from the Board of management of the defendants, signed by the Chairperson as follows:
Further to our meeting on 18th January which was attended by Pauline Dempsey, Principal, Una O’Connell, SNA (at your request), myself, as Chairperson of the Board of management and yourself. I wish to confirm that you are being issued with this final written warning as per Stage 4 of the disciplinary procedure. 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 14th September 2009, whereby you locked yourself and a child into the Sensory Room. On conclusion of the investigation, the matter was discussed at the Board of management meeting on 23rd November 2009, and it was agreed at this meeting that you be issued with this warning.
The Board of management views any breach of health and safety procedures as a very serious matter and wishes to inform you that a further breach of this or any other school policy could result in further disciplinary action, up to and including dismissal.This warning will remain on your file for a period of 18 months”
Justice O’Neill observed:
“…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…. As a consequence, the picture presented to the Board on 23rd November 2009, was of individual misconduct on the part of the plaintiff”
He further noted that the manner in which the disciplinary process with regard to the locking of the Sensory Room door was handled by the principal was grossly unfair to the plaintiff and utterly denied her the benefit of her constitutional right to natural justice and fair procedures.The conjuring up by the principal of the additional offence of failing to improve during the review process and of the “falsification” of the review forms was he described “at best, irrational, in the sense of there being a complete lack of any real basis for such conclusions. It is hard to understand how an educated, sophisticated person, such as Ms. Dempsey, could arrive at such conclusions without an element of bad faith”
Justice O’Neill stated that the plaintiff should not have been subjected to the disciplinary process. When it came to light that the Sensory Room door was locked, and when the plaintiff responded by indicating that other SNAs did it, the appropriate and immediate response of the principal “should have been to ascertain the truth or otherwise of the plaintiff’s contention…….The addition of the trumped up charge of failing to improve and the falsification of a form, given the complete lack of any basis for it, was reprehensible“. He concluded that the treatment of the plaintiff throughout the process by the principal was entirely “inappropriate” within the meaning of the definition of bullying in the workplace“.
The plaintiff was asked to come to a further meeting with the principal on 27th January 2010. The court accepted the plaintiff’s evidence during that meeting, that she was subjected to a considerable variety of denigration which belittled, humiliated and reduced her to tears. Thereafter, the plaintiff sought the advice and support of the union, IMPACT, and in due course, a meeting was arranged for 23rd March 2010. The Union sought to persuade the defendants to remove or withdraw the final letter of warning and advocated that the closing of the door had been common practice amongst the SNAs. The plaintiff’s union representative appealed against the final written warning given to the plaintiff on a number of grounds including process and procedure and that the sanction imposed was too severe.
The plaintiff subsequently devised a questionnaire which was put to her SNA colleagues which contained two questions.
1. “Have you ever locked the Sensory Room door?”
2. “Have you ever been asked by Pauline Dempsey ‘have you ever locked the Sensory Room Door?”
This questionnaire was answered by four of her colleagues, all four of whom answered ‘yes’ to the first question. Insofar as the second question was concerned, only one SNA answered ‘no’. The evidence of the plaintiff and her colleagues who gave evidence was that many more of the SNAs were willing to answer the questionnaire in the affirmative but only if they could do so anonymously.
In a further letter dated 22nd April 2010, the plaintiff’s representative included a copy of the questionnaire which provided a basis for the plaintiff’s contention that the practice of the locking the door was not unique to the plaintiff. The minutes of the meeting of the Board of management dated 26th April 2010 recorded the letter from Impact. On 20th May 2010 the defendant’s replied to the union’s appeal stating
“The Board of management considered the contents of your letter and have decided to stand over their original decision with regard to this matter”
Justice O’Neill was “.. 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 SNA’s“. The court also observed that “the appeal was to the same decision maker as had made the decision appealed against, thereby demonstrably offending the maxim Nemo iudex causa suam…”
The plaintiff subsequently consulted a solicitor who wrote to the defendants and sought confirmation of the following:
“We would be obliged if, within a period of ten days from the date hereof, you would reply to us with the following:
1. Kindly acknowledge that you have received confirmation from other members of staff and it was common practice that the Sensory Door was locked.
2. In light of the aforementioned information, why has a letter of apology not issued to our client?
3. Kindly acknowledge that our client and all members of staff have been issued with health and safety procedures.
4. Please confirm whether or not there have been previous complaints made against our client. If such complaints exist, why were they not dealt with in the appropriate manner?
5. Please confirm that there is no issue with the sick leave that our client has taken over the last fourteen years”
The defendant’s replied by letter dated 28th June 2010 stating that the issues raised were a matter for the Board of management of the school and as the school was now closed, the issues would be discussed by the Board at its next meeting on 20th September 2010.
On 24th September 2010 the defendant’s replied to the plaintiff’s solicitors correspondence denying any bullying or harassment of the plaintiff and acknowledging “..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“. The letter provided that the plaintiff was not entitled to nor ever sought a letter of apology. The letter also acknowledged that the Safety Statement had been made available at all times to the staff. The letter concluded that it had been necessary on a number of occasions over the previous years to raise the question of the plaintiff’s uncertified absences on sick leave.
The plaintiff’s solicitor replied by letter dated 12th October 2010 noting a number of inaccuracies including those between the letter dated 24th September 2010 whereby it was admitted by the Board of management that members of staff had on occasion seen fit to lock the door of the Sensory Room, and yet noting client was singled out in relation to one incident of locking the Sensory Room and was furnished with a final warning letter that was to remain on her employment file for a period of 18 months. The letter concluded that as the plaintiff was absent on sick leave that all correspondence was to be directed through their offices. No reply was received to this letter and the solicitor for the plaintiff sent a reminder letter of 11th November 2010.
The defendant’s replied by letter dated 20th December 2010. By a letter of 17th January 2011, the plaintiff’s solicitors wrote to the defendants stating that their client wished to apply for sick leave.
By letter dated 19th January 2001, the solicitors for the plaintiff wrote a standard letter intimating proceedings claiming damages for personal injuries sustained by the plaintiff. By letter dated 24th March 2011, the solicitors for the plaintiff wrote stating that further to the defendant’s contention that further debate was required to reply to the correspondence dated 12th October 2010, that any debate should have taken place by now.
Justice O’Neill observed that “It would seem to me that the plaintiff, through her solicitor, did her utmost to pursue her grievance through the internal procedures of the defendants, but the defendants wholly failed to respond to her in that context, and thus, she was left with no option but to pursue these proceedings“.
He further observed that from March 2010, onwards, “there can be no doubt but that the Board were clearly alerted to the plaintiff’s case………….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”
Justice O’Neill observed….”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“.
He then considered whether or not the plaintiff had, as a result of the conduct of the defendants, suffered an identifiable psychiatric injury as indicated in the judgment of Fennelly J. in the Quigley Complex Tooling & Moulding Limited case [2009 1 I.R. 349]:
“The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury”.
The Court observed that from October/November 2009, the plaintiff began to experience high levels of stress caused by what she perceived as the unfair treatment of her by the defendants, and in particular, the plaintiff. As time went on it was getting worse and the court accepted that from around March 2010, she was suffering constantly from headaches, insomnia, diarrhoea and high levels of anxiety. The plaintiff attended her General Practitioner, on 19th August 2010, complaining of frontal facial temple headaches all summer, that she could not think straight, all related to a bullying issue at school. Her General Practitioner diagnosed muscle contraction headache and prescribed medication for her. She attended her General Practitioner again on 28th September 2010, with similar complaints, with the addition of some neck pain. The General Practitioner put all this down to stress related to bullying.
Justice O’Neill further noted ….“I have no doubt that the imminent return to school after the summer holidays had a heightening effect on her stress and anxiety at that time” and noted that on her return to school a further episode with the Principal, occurred on 27th September 2009 whereby she was reprimanded by her for being late despite there being works carried out at the time in respect of car parking. As a direct consequence of this incident, the plaintiff felt she could no longer continue in the school and she went out on certified sick leave due to work-related stress”.
Prior to 2009, the plaintiff had two previous episodes of depression, one of which was a postpartum Depression and the other a reaction to bereavements. She required anti-depressive medication for these but she recovered fully on both occasions. Justice O’Neill stated “…I am satisfied on the evidence of Dr. Michael McDonnell, her GP, and Dr. Byrne that the plaintiff suffered an Anxiety and Depressive Disorder resulting from her reaction to what had happened to her in St. Anne’s School from September 2009 through to September 2010. This resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and an inability to cope with everyday life. All of this rendered her incapable of returning to work in the defendants’ school, and all of that, allied to her fear that she would not have a good reference, inhibited her from seeking employment elsewhere. As a result, she has not worked since 27th September 2010.…”
The court observed that the plaintiff had been on anti-anxiety and anti-Depression medication since late 2010, and she attended the Mental Health Service clinic in Newbridge on a regular basis where she was prescribed anti-Depression medication. Her situation had not improved over the intervening period and it was concluded that she was suffering from a severe anxiety state and severe depression. It was observed that “..there can be no doubt that she has, since late 2010, suffered from a significant anxiety and depressive disorder and that continues to afflict her“. On the basis of medical evidence it was concluded in due course that the plaintiff would in due course have the capacity to return to full-time, gainful employment.
Justice O’Neill concluded:
“I am satisfied that the plaintiff has suffered a definite and identifiable psychiatric injury from which she still continues to suffer significantly and will continue to do so for some time into the future. Therefore, she must be compensated for her pain and suffering in that regard to date and into the future. In my opinion, the appropriate sum to compensate the plaintiff for her psychiatric injury to date is the sum of €75,000. Insofar as the future is concerned, as already mentioned, the probability is that she will improve and go on to recover over time, particularly when this litigation is finalised. With that in mind, in my opinion, the appropriate sum to compensate her for her psychiatric injury for the future is the sum of €40,000, making a total for general damages of €115,000”
The plaintiff’s loss of earnings up to 6th March 2014 was agreed at €93,276.39. Justice O’Neill concluded:
“In my view, the plaintiff is entitled to recover the foregoing sum, and as it is clear she will probably not be able to return to gainful employment for some time yet, is entitled to recover damages in respect of future loss of earnings. I think it probable that with appropriate treatment, she will be fit for such employment in the relatively near future, and accordingly, I would award her half the foregoing sum again in respect of future loss of earnings, namely, €47,000, making a total of €140,276 in respect of loss of earnings past and future“.
The court concluded judgment for the plaintiff in the sum of €255,276.