SUPREME COURT RECORD NUMBER 2016/24
This case came before the Supreme Court after a detailed hearing in the High Court and three considered judgements in the Court of Appeal.
The significance of the case in Irish law was demonstrated by the hearing of the appeal by a seven person sitting of the Supreme Court on the 20th. December 2016 and as stated by O’ Donnell J. “At some level this novel case will set a benchmark for all bullying claims.”
O’Donnell J delivered the majority judgement during which made the following comments and findings;
- The Court of Appeal was correct in my view therefore to identify the core issue as to whether a claim for unfair procedures leading to an unfair result could in itself amount to bullying.
- During the hearing of the appeal it became apparent that to address only those issues [i.e. the grounds upon which the leave to appeal was granted *] might not result in a complete resolution of the case since even if both questions were answered positively that would not necessarily lead to the overturning of the decision of the court of Appeal.
- Here the complaint relates to unfair procedures in a disciplinary process including what was alleged to be the unfair singling out of the plaintiff for punishment…This is not to say that such matters cannot constitute bullying but rather it compounds the difficulty of this case that it involves conduct which on any view is at the margins of conduct alleged to be bullying.
- At some level this novel case will set a benchmark for all bullying claims… One justification therefore for the law of torts and the stresses and costs it entails is that it provides a potent incentive to alter general behavior. It is necessary therefore to have regard to the impact well beyond this case, of any finding or rejection of liability.
- However it is not necessary to establish a breach of fair procedures to succeed in a bullying claim, and conversely, the presence of unfair procedures does not establish bullying.
- Bullying often involves a question as to how something was done rather than what was done.
- I also accept for the purposes of this judgement that such a finding of conduct [i.e. denigration, belittling, and humiliation *] even occurring at a private meeting between only two individuals is capable of constituting conduct which is inappropriate, and capable of undermining the plaintiff’s dignity at work, and therefore if repeated, capable of constituting bullying.
- There may also be so called ‘corporate bullying’ involving a superior, or indeed management more generally in the treatment of the individual.
- .. I consider that the statement of law, accepted without question in this case, that no separate tort of bullying is or can exist, that bullying is in a sense a subspecies only of an employer’s duty of care but that there can be nevertheless a concept of ‘corporate bullying’ for which the employer is directly responsible.
- I agree with Finlay Geoghegan J. in particular that this issue involves a careful focus on at least three terms used in the 2002 Order:
- Repeated behavior;
- Inappropriate behavior; and
- Behaviour reasonably capable of undermining dignity at work.
- Inappropriate behavior does not necessarily need to be unlawful, erroneous or a procedure liable to be quashed or otherwise wrong in law: it is instead behavior which is inappropriate at a human level.. The test looks to the question of propriety in human relations rather than in legality.
- More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach [i.e. human dignity*] it is both severe and normally offensive at a human level.
*Note: Inserts and highlights by Burns Nowlan for ease of reference.