Our litigation solicitor Derek Walsh recently presented an in-house seminar on the topic of bullying and the law entitled “Stomp Out Bullying”. Derek’s seminar focused on bullying in schools and the workplace – this article is based on bullying in schools. (To read Derek’s article about “Bullying in the Workplace”, click here)
Derek began his seminar with the question “What is Bullying?” Bullying is defined by the Department of Education and Skills as “unwanted negative behaviour, verbal, psychological or physical, conducted by an individual or group against another person and which is repeated over time”. Bullying can occur at any age. Isolated incidents of aggressive behaviour which should be condoned, can scarcely be described as bullying. However, when the behaviour is systematic and ongoing, it is bullying. Nonetheless we live in an era where communication through the internet and social media and the use of smartphone are rife. Therefore, placing a once off offensive, hurtful message on social media from where that message can be viewed and/or repeated is regarded as bullying.
The principal guidelines for dealing with bullying in schools are set out in procedures rather than law. In September 2013, the Department of Education and Skills published an updated “Anti Bullying Procedures for Primary and Post Primary Schools”. Section 23 of Education (Welfare) Act 2000 requires schools to have a code of behaviour. Section 23(4) requires that the parents be supplied with the code of behaviour. All schools should have an anti-bullying policy within the framework of their overall code of behaviour.
A school’s liability in negligence depends on 3 inter-related requirements: –
- The existence of a duty to take care.
- A failure to take the care which can reasonably be expected in the circumstances.
- Damage suffered as a result of that failure.
The New South Wales Court of Appeal in “Haines v. Warren” noted that the duty, which is owed by a school to its pupils, is to take reasonable care to remove risks of injury which are reasonably foreseeable. This standard of negligence has been supported by the Courts in this jurisdiction.
On the basis that a duty exists, the second issue that arises is how this standard of care is assessed. The Court in Ireland adopts the standard of the “prudent parent exercising reasonable care”. The requisite standard of care in relation to supervision was stated by McCracken J. as follows:
“The extent of supervision will depend on a number of factors, e.g. age of pupils, the location of places where pupils congregate, number of pupils and the general propensity of the students.”
Recent Case Law in Ireland
A recent case involved a 10-year-old girl who was complaining of psychiatric injury and stress as a result of bullying over the course of an academic year. She was subjected to social exclusion, isolation, cyber-bullying and physical conduct. The school’s anti-bullying policy was not complied with and no incident book/record was completed as required under the Code. In addition, there was a delay in investigating the incidents, despite numerous complaints by the student and her parents. The school failed to intervene and monitor the conduct of the pupils and it failed to increase supervision on the yard.
Research shows that 1 in 10 students have been cyberbullied. The insidious effect of cyberbullying is growing year on year. Studies report that many children who are being bullied are afraid to speak out. Reports have shown that as young people grow older, they are less likely to tell someone. It is vital for students, parents and teachers to develop and review anti-bullying policies targeting cyberbullying.
The National Association of Principals and Deputy Principals (NAPD) have recently suggested a dedicated classroom module on cyberbullying be introduced as part of curriculum at junior and senior cycle.
The NAPD noted more funding and training for school leaders is needed to help fight a problem that is growing annually while the Deputy Director of Education at the Law Society of Ireland, Dr. Geoffrey Shannon has voiced his view that legislation be introduced to make cyberbullying a crime.
What Can be Done?
- Schools should follow “Anti-Bullying Procedures for Primary and Post Primary Schools”.
- Foster and develop a positive school culture and climate.
- A school-wide approach to preventing and tackling bullying behaviour.
- Publish the anti-bullying policy on school websites and give to parents’ associations.
- Making clear to students that the definition of bullying includes cyberbullying and identity-based bullying e.g. homophobic and racist bullying.
- Clear procedures for investigating, recording and dealing with bullying.
- Oversight arrangements that involve the school principal reporting regularly to the Board of Management and a requirement for the Board to do an annual review of the schools anti-bullying policy and implementation.
If you have concerns about bullying in your child’s school or if you wish to learn more about the area of bullying and the steps that can be taken to tackle it, contact Derek Walsh at email@example.com or call +353 61 414 355 or +353 61 414 353.
The material contained in this article is for general information purposes only and does not constitute legal or other professional advice. We advise people to always seek specific expert advice for their individual circumstances.