by Breda O'Malley June-10-2014 in Litigation & Dispute Resolution, Employment Law
An employer who permits an employee to be singled out for adverse treatment and who ignores fair procedures does so at its peril and risks being found liable for bullying with a pay out of €255,000 – costly lessons!
In a recent decision involving a Special Needs Assistant (SNA) in a National School, who made a claim of bullying and harassment treatment against her employer, the Board of Management of St. Anne’s School, the High Court found against the employer and awarded €255,276.00 for damages and loss of earnings. This case is a salutary lesson to employers to comply with fair procedures.
The claimant, Ms Ruffley, was employed as an SNA in the school which catered exclusively for children with physical and/or intellectual disabilities. The school had 14 Teachers and 26 SNAs. It also had available to it a number of other quasi-medical services.
The school had a room known as the “Sensory Room”. The notion of this 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. The room had been in existence for approximately 5 years. The room did not have any windows but had a skylight. The door into the room comprised a metal door which could be locked from the outside with a key but at all times material to the case this was not done. On the inside of the door was a lock which was similar to the lock on the inside of a toilet door which could be secured by twisting the lock to either open or to close it. The controversy in this case centred on the use of that lock.
Every pupil who used the Sensory Room had a programme designed by the Occupational Therapist. This would be carried out by an SNA or sometimes two. To successfully carry out the programme it was desirable if not necessary to ensure that during the programme there would not be distractions such as other pupils coming into the Sensory Room. Thus it was normal for the door to the Sensory Room to be kept closed whilst a pupil was inside going through a programme. The issue in this case was whether there was a common practice amongst the SNAs of also locking the door whilst a pupil was going through his or her programme, using the lock on the inside of the door.
Ms. Ruffley had been employed for approximately 11 years by the Board of Management and discharged her duties in a satisfactory manner, enjoyed good relations with Teachers and others. She never had any disciplinary issues or grievances during that 11 year period. This all changed on the 14th of September 2009. It was noted that the school’s Safety Statement made no reference to and was silent as to any risk pertaining to the locking of the Sensory Room door from the inside while a session was ongoing.
On that day Ms. Ruffley was in the Sensory Room with a young boy. The pupil fell asleep which was an unusual occurrence for this pupil who suffered from ADHD. Ms. Ruffley went to the telephone outside the Sensory Room a short distance away and telephoned the pupil’s class Teacher for instructions. She was instructed to allow the pupil to continue sleeping for a further period of 20 minutes before bringing him back to his class. In the meantime the Teacher, being alarmed at this unusual development, contacted the Principal to check out the situation. The Principal did so and when she approached the Sensory Room she found the door locked and on her third attempt to gain entry, the door was opened by Ms. Ruffley who readily accepted that the door had been locked. The issue of the door being locked or otherwise was not discussed then. The Principal confirmed the instruction given by the class Teacher to allow the pupil to continue sleeping for a short period.
The following day when Ms. Ruffley attended work she was requested by the Principal to come to her office which she did. At this meeting she was informed by the Principal that she was handling the matter in the context of the School’s Disciplinary Procedure and that she was being investigated. The issue was over the locking of the door with a pupil inside. When Ms. Ruffley indicated to the Principal that she hoped the Principal would be dealing with all the SNAs who did this she was informed that that was another issue for another time. Ms. Ruffley was shocked by this encounter as it was common practice amongst the SNAs to lock the Sensory Room door whilst conducting a pupil’s programme. No instruction had ever been given not to do this, and neither had any instruction been given to do it.
Ms. Ruffley readily 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 it was to prevent other children from entering the Sensory Room whilst she was conducting a session with a pupil and also to prevent a pupil described as “a runner” from running out of the room while the programme equipment was being set up. She explained that she had not been told to lock the door by any Teachers, nor had she ever been instructed not to lock the door. Ms. Ruffley felt relieved after the meeting because she felt her explanation on why she had locked the Sensory Room door had been accepted and that was the end of the matter. The note retained by the Principal did not make any mention of any contemplation of further action arising out of the matters discussed in the meeting. Nor did the note make any mention of any complaint of Ms. Ruffley, nor of any inadequacy in her training in the use of the Sensory Room or any need for further training.
Some days later on the 18th of September 2009, in a meeting attended by the Principal, the class Teacher and Ms. Ruffley, a process of training was agreed. This involved a 4 week period during which Ms. Ruffley, in carrying out the programme for the child who was the “runner”, would, on a weekly basis, fill in a form, indicating by a tick, the activities in the Sensory Room which this child accomplished, and on conclusion of the 4 week period there would be a review of the operation of the programme for this child.
At the end of the 4 week period the Class Teacher noticed Ms. Ruffley had ticked a box on the form in a particular way and queried Ms. Ruffley who confirmed that this was wrong and sought permission to change the form so as to make it accurate. The Teacher refused to allow her to do so and recorded this result of Ms. Ruffley’s performance as a “miscommunication”. The High Court found it difficult to comprehend this refusal on the part of the class Teacher given that what was being recorded were the activities accomplished by the child in question so as to assess the child’s suitability for the programme as well as the capacity of the SNA to implement it.
At a later meeting in October 2009 with the Principal Ms. Ruffley was challenged for having initially recorded the child in a particular way and for filling out the form inaccurately. Ms. Ruffley felt an acute sense of unfairness and grievance with this response. The High Court was satisfied that no issue in relation to Ms. Ruffley’s overall competence and training in the use of the Sensory Room had been discussed at any stage in the meeting of the 18th September. The Principal’s own note of this meeting supported this view. In the course of the trial a letter of the 18th September 2009 was produced by the Principal purporting to invoke the school’s disciplinary procedure but Ms. Ruffley disputed having ever received this letter. Reference was made in this letter that no further disciplinary action would be taken because of the training deficiencies of Ms. Ruffley highlighted in the 15th of September meeting. Again none of these matters were reflected in the notes retained by the Principal, nor in the evidence of Ms. Ruffley or the class Teacher to the High Court. The Principal gave evidence that she was not satisfied with the outcome of the review process conducted over the 4 week period. She concluded that there had been no improvement and that the inaccurate completion by Ms. Ruffley of the form drawn up by the class Teacher was characterised as a “falsification”. The High Court found that the claim that there had been no improvement with the child over the 4 week review was groundless and that the refusal of the class Teacher to permit the change in the form so as to make it conform to the actual reality, was extreme and utterly removed from what right thinking people would consider to be a reasonable conclusion. Forms had never been used before in the School for this or any child. SNAs had not been required to complete any such forms and Ms. Ruffley was being criticised for her mistake in completing the form. The Principal had now decided to invoke the disciplinary process and that the matter should be brought to the attention of the Board of Management.
The Principal raised the matter with the Chairman of the Board about the locking of the door, which he saw as unacceptable because of the child protection implications involved. In November 2009 the Principal had also sought to move Ms. Ruffley to another class. Ms. Ruffley was told that the matter would be raised at the next Board meeting but no information was provided to her as to what was going to be considered. She was given no written material concerning what might transpire at this Board meeting nor was she told that there might be any adverse disciplinary outcome for her. No opportunity was provided to make her response known or to be represented.
When the matter came before the Board of Management on the 23rd November 2009 it was not dealt with as a specific item on the agenda. It was dealt with under AOB (any other business). Ms. Ruffley was not identified by name. The Principal sought the support of the Board to issue a verbal or written warning to Ms. Ruffley under the terms of her SNA contract. Some of the Board Members wanted Ms. Ruffley instantly dismissed - a factor which the High Court commented on had to be due to “as a matter of probability, the account given …… to the Board of the history of the matter was almost certainly untrue, highly biased, coloured , and grossly and unfairly damnfied the Plaintiff”. Dissuaded from this course by the Principal and the Chairman (the only parties who were aware of Ms. Ruffley’s identity) a decision was arrived at by the Board that Ms. Ruffley was to be given a disciplinary sanction immediately below dismissal and that she would have any increment in salary due to her deferred. Some 4 weeks later on the 21st of December 2009, just before the Christmas break, Ms. Ruffley was informed of the Board’s decision. The Principal informed her that she was being given a final warning which would be given to her formally in the New Year and that it would remain on her record for 6 months.
Later at a meeting on the 18th January 2010 Ms. Ruffley was informed that she was to receive a final stage warning for a breach of health and safety, the grounds of which were the locking of the Sensory Room door and that this warning would remain on her record for 18 months. There was no discussion other than Ms. Ruffley being informed of the sanction. The letter issued by the Chairperson of the Board of Management some two days later on the 20th of January to Ms. Ruffley stated that the warning was 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 the 14th of September 2009, whereby you locked yourself and a child into the Sensory Room”.
Notwithstanding the content of this letter no investigation had been conducted by the Board whether into the incident on the 14th September 2009 or the contention by Ms. Ruffley that it was indeed a common practice by the SNAs in St. Anne’s School to lock the door of the Sensory Room. The Board knew nothing about the incident on the 14th September until its Board meeting on the 23rd November when the level of sanctions was agreed and imposed on an unnamed employee. The High Court was unequivocal – Ms. Ruffley was subjected to disciplinary sanction of a severe kind which was unmerited.
The Court expressed the view that 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, as irrational and questioned how the Principal could have arrived at such conclusions without an element of bad faith. It went on to hold that the treatment of Ms. Ruffley throughout the process by the Principal constituted entirely “inappropriate” behaviour within the meaning of the definition of bullying in the workplace (paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace(Declaration) Order 2002 (S.I. No 17/2002). Ms. Ruffley had, subsequent to being sanctioned, retained Solicitors who corresponded with the Board of Management seeking to have the entire matter reviewed. The Solicitors were able to provide evidence that other SNAs also locked the door in the Sensory Room and that this practice was not unique to Ms. Ruffley. However, the Board stood by its original decision to sanction Ms. Ruffley and declined to review matters.
The High Court found that the Board did not give any meaningful consideration to the case being made by Ms. Ruffley, whether by her Union representative in March 2010 or later in May 2010 by her Solicitors. Further, it found that Ms. Ruffley’s appeal to the Board, in so far as it could be said to be an appeal in the normal sense, as the appeal was to the same decision maker as had made the decision appealed against, was demonstrably offending of the maxim Nemo iudex causa suam and fell on deaf ears.
Correspondence had passed between Solicitors for Ms. Ruffley and the Board of Management throughout the Autumn of 2010. During this time the Board acknowledged that some members of staff had on occasion seen fit to lock the door of the Sensory Room. Yet it still refused to review its decision to sanction Ms. Ruffley or to provide an apology. Instead the Board was critical of Ms. Ruffley’s sick leave (from September 2010) in circumstances where she had had no uncertified sick absences in all her years of employment. The Board minutes of its meeting on the 9th November 2010 disclosed no consideration of Ms. Ruffley’s situation despite being aware of her being on certified sick leave due to work related stress since September 2010.
The High Court interpreted the Board’s actions as a “persistence by them in their unfair and inappropriate treatment of the Plaintiff”. The inappropriate behaviour of the Board was not merely an isolated incident but was persistent over a period of in excess of one year. The Court went on to conclude that this persistent, inappropriate behaviour of the employer undermined the employee’s dignity at work.
A number of questions spring to mind. Is this a departure from the definition of bullying, as accepted by the Supreme Court in Quigley V Complex Moulding and Tooling case, where it was described as repeated inappropriate behaviour? Does the Ruffley case extend the definition of bullying? The hallmark of bullying should be the degree of deliberateness in the form of repeated inappropriate behaviour. Does persistent inappropriate behaviour over a year change the accepted understanding?
The major lesson to be learned from this case for employers is to ensure that fair procedures are properly applied to issues which arise in the workplace and to be extremely careful as to how such issues are managed by management. The case demonstrates what can go wrong where the employee is not given fair procedures and no representation. Ms. Ruffley’s rights were all set at nought throughout the entire flawed process, leaving the employer with liability and a substantial award to be discharged.
Evidence was given that Ms. Ruffley had suffered a definite and identifiable psychiatric injury as a consequence of her treatment in the workplace. This was not a case of daily occupational stress which is an every day hazard for the employed person and which is not actionable (see Glynn v Minister for Justice, Equality and Law Reform – High Court March 2014). Here the Court was satisfied on the evidence of the medical practitioners that Ms. Ruffley suffered anxiety, a depressive disorder, loss of confidence and self esteem, and an inability to cope with everyday life, resulting from her reaction to what had happened to her in the School from September 2009 through to September 2010. Her dignity at work was totally undermined over this period. This rendered her incapable of returning to work in the School and all of that, allied to her fear that she would not have a good reference, inhibited her from seeking employment elsewhere.
The High Court awarded €75,000 for psychiatric injury to date with €40,000 in respect of psychiatric injury for the future, loss of earnings of €140,276.00 for both past and future, making a total award of €255,276.00. An expensive lesson indeed!
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About the Author
Breda O'Malley
Breda is a partner in the Employment Law Team at Hayes solicitors.
Breda advises on the full range employment issues across a broad range of sectors, for established business clients and senior executives.