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Important Decision of High Court in Bullying Claim

The High Court recently made a decision in the case of Sweeney -v- Board of Management of Ballinteer Community School in relation to claims of bullying and harassment. It gives guidance on the kind of conduct that will be determined to be bullying and oppressive behaviour by an employer and also the awards which will be given in such cases.

There was a prior history of difficult relations between the plaintiff, Ms Sweeney and the principal of the school, Dr C.

Ms Sweeney alleged that conduct on the part of Dr C from 2007 onwards constituted bullying. Between the end of August 2006 and the 27th March 2007 the Plaintiff was absent from work on sick leave. The Court was critical of the conduct on the part of the Plaintiff in a number of respects however that did not, it was found, excuse Dr C in his conduct towards the Plaintiff on certain occasions.

Circumstances of Bullying

Acts on the part of Dr C which were found to be bullying by Mr Justice Herbert were;
-isolating the Plaintiff her from her colleagues by the suggestion that supporting her actions in any way would have adverse consequences for them;
-targeting the Plaintiff and identifying her conduct in a disparaging way in a document circulated to staff.
-dealing poorly with a particular situation to the extent that Dr C had acted in a manner which was oppressive and bullying. Here Mr Justice Herbert observed that "however extremely provocative the Plaintiff's own behaviour may have been and however much her actions may have been interfering with the smooth running of the school.... She should not have been publicly disparaged and humiliated by Dr C in front of the parents present".

The Court found that since her return to the school in March 2007 the Plaintiff had been continuously treated by Dr C in a bullying and aggressive manner. The "freezing out" she had described caused the Plaintiff anxiety and stress after March 2007. The Court found that Dr C behaved towards the Plaintiff like an "offended tyrant and not as fellow teacher and long time colleague of the Plaintiff who had been appointed to a Senior Management position in the College".

The Court reserved its most severe criticism for the decision of Dr C to engage a private investigator for four days in early February 2008 to carry out a covert surveillance on the Plaintiff during working hours. Mr Justice Herbert said that this amounted to a most serious harassment of the Plaintiff by Dr C. The Court particularly noted that the Plaintiff had absences from work in 2005, 2006 and 2007 medically certified on each occasion as due to being work related stress. From this Dr C knew or would have known had he chosen to consider the matter that this rendered the Plaintiff very vulnerable to some form of mental illness such as a nervous breakdown.

The Court found that it was reasonably foreseeable for Dr C that if the Plaintiff became aware of being pursued by an unknown male the effect upon her was likely to be so traumatic as to precipitate her into mental illness. For Dr C to have so acted whether deliberately or with reckless indifference even though he ought to have been aware that mental harm to the Plaintiff might result from his actions amounted, in the judgement of the Court, to malicious targeting and harassment of the Plaintiff. Even though the Board of Management was not aware that the Principal had engaged the services of a private investigator all these acts took place during the official school day and were related to the principals work and were a wrongful way of performing the task which the Principal was authorised to perform i.e. to manage the College.

Medical Evidence

The Court then gave consideration to the medical evidence. The Court had particular reliance on the evidence given by the Plaintiff's general practitioner, Dr McMahon. Dr McMahon had never diagnosed the Plaintiff as suffering from clinical depression or from any form of psychological or psychiatric illness. He considered that the Plaintiff was suffering from severe stress and anxiety which he considered to be a psychological crisis but not an illness. When the Plaintiff proposed or suggested that resuming work was not an option for her he said that he was not at all in favour of this.

However, the Plaintiff also met with Dr Lane, Consultant Psychiatrist. Dr Lane concluded that the Plaintiff was suffering from severe clinical depression with an over lay post traumatic stress disorder. The Plaintiff first met with Dr Lane in November 2008. By June 2010, Dr Lane was satisfied that the Plaintiff had recovered somewhat. Dr Lane concluded that the Plaintiff was no longer depressed and was able to go out on her own. At this time Dr Lane considered that the Plaintiff was physically and mentally able to return to work.

The medical evidence for the defence was that the Plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the workplace.

Decision of the Court

The Court decided that;
-having regard to the case law of Mullally -v- Bus Eireann and Kelly -v- Hennessey the Plaintiff had not established on the balance of probabilities that she suffered from post traumatic stress disorder as a consequence of bullying or harassment;
-the Plaintiff had established that she did suffer psychiatric illness in the form of clinical depression and that a direct causal connection existed between that injury and the continuous bullying and harassment of her by Dr C from the 28th March 2007;
-based on the Plaintiff's previous medical history of work related stress, the incident of surveillance as directed by Dr C could have been foreseen by the school as causing some form of mental illness;
-the school owed the Plaintiff a direct duty of care as her employer both at common law and by virtue of the provisions of the Safety Health and Welfare at Work Act to take reasonable care to prevent her suffering mental injury in the work place as a result of being harassed or being bullied by other employees if they knew or ought to have known that such was occurring;
-there was no evidence that it would be unreasonable to expect the Plaintiff to continue to serve as a home school liaison co-ordinator or in some other teaching capacity in the school. There was nothing on the facts of this case which would in any way inhibit a just resolution of the difficulties which had arisen between the Plaintiff and Dr C and which would enable them to work efficiently together as professional colleagues.

Award of Damages

The Court awarded the Plaintiff €60,000 of which €5,000 represented an increased amount of compensatatory damages to reflect the Courts particular unhappiness with the Principal's conduct towards the Plaintiff. The Court awarded the Plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. The Court did not make any award to the Plaintiff of loss of earnings into the future based on the view that it was not medically supported that she did not return to work or take early retirement from teaching.

Analysis

While the Plaintiff succeeded in establishing that she had been bullied, and as a consequence of that bullying, she suffered personal injury, her victory is qualified. In the first instance, she failed to establish that she had suffered from post traumatic stress disorder as a consequence of her employer's conduct. Additionally, she failed to recover any damages in connection with her decision to take early retirement and not to return to the workplace. If she had succeeded in these elements of her claim her award of damages would have been significantly greater.
The decision of Mr Justice Herbert places quite a high threshold on employees who decide not to return to the workplace due to an employer's conduct. In this case, even though the Court was critical of Dr C, had found that he had bullied the Plaintiff and even increased the damages to the Plaintiff to particularly note that fact - it was still felt that she should be able to return to the workplace.

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