Barlow v Borough of Broxbourne

The claimant, Mr Michael Barlow, was formerly employed by the defendant, the Borough of Broxbourne. He brings this action for damages for personal injury and consequential losses on two broad grounds. He contends first that he was deliberately victimised and bullied by senior members of staff of the defendant, which caused him to suffer emotional distress and psychological injury as a result of which he was unable to continue working for the defendant. Further or in the alternative, the claimant maintains that the defendant, principally through those same senior members of staff, exposed him to such stress at work that he developed a stress-related illness, namely depression with somatic and anxiety symptoms, which prevented him to remaining in the employment of the defendant.

Although the claimant’s pleadings contain many references to EC Directive 89/39 1, Mr Pershad, appearing for the claimant, confined his case to the allegation that the defendant was vicariously liable for the acts of the members of staff and accordingly was in breach of the duties owed at common law to the claimant, as its employee.

Mr Platt, for the defendant, does not dispute the contention that the defendant would be vicariously liable for the conduct of its employees which is alleged by the claimant. But the defendant denies that any such victimisation and bullying took p1ace. The defendant further denies that it breached its duty to the claimant in failing to prevent him from suffering from a stress-related illness. The local authority argues that, even if the conduct complained of by the claimant or any of it occurred, it was not reasonably foreseeable on the part of the defendant that psychiatric harm to the claimant would result. Causation is also in issue.

At the start of the trial it was agreed that the issue of liability should be determined first and separately from damages. Accordingly, this judgment deals with liability only.

I shall start by reciting what I believe to be the broadly uncontentious background to the issues which arise for consideration in this case, which took place between early 1997 and September 1998.

The claimant is now aged 57. He has spent almost all his working life in the employment of the defendant or its predecessor, Cheshunt UDC. He started that work in 1964 as a gardener in the Parks section. Thereafter he gradually worked his way up through the ranks, becoming a Supervisor in the Parks section in 1988. In 1989 he became Ground Maintenance Manager. In 1992 he was promoted to Environmental Manager, which meant that his responsibilities extended to refuse collection. The following year he became Senior Operations Manager. For a period of about six months in 1993, he was in effect Acting Director of Services for the defendant, pending the appointment of a replacement for Mr Colin Moore who had himself been promoted to Director of Resources. The claimant applied for appointment as Director of Services. He got as far as the second interview stage but was ultimately unsuccessful in his application. Nevertheless the track record of the claimant within the council is an impressive one.

Accordingly the claimant was from 1993 Senior Operations Manager. Apart from the six-month period when he was caretaker Director of Services, his responsibilities included ground maintenance, highway services and refuse collection. The defendant claims that in addition the claimant had responsibility for housing repairs. The claimant initially disputed this but later accepted he had some responsibility for house maintenance. Mr Robertson confirmed that this was the case. It is common ground that these responsibilities were highly demanding. The claimant gave evidence, which I accept, that from 1993 onwards he was working long hours and was often required to work without extra pay at weekends and bank holidays.

As to the senior members of the defendant’s staff, the Chief Executive Officer from 1987 onwards was Mr Michael Walker. Mr Colin Moore, to whom I have already referred, was appointed Acting Director of Services for the defendant in 1991. He formed a favourable view of the claimant, regarding him as a competent, loyal and hardworking. It was he who appointed the claimant Senior Operations Manager. He spoke highly of the claimant’s qualities when giving his evidence.

As I have said, Mr Moore became Director of Resources in May 1993. His unchallenged evidence was that all the Direct Service Organisations were losing money at the time of his appointment but that they were profitable by the time he left that post in May 1993. Mr Morrison succeeded him as Director of Services. The claimant worked well with him too. But in late 1995 Mr Morrison left and was replaced as Director of Services by Mr George Robertson. His background was in commerce rather than local government (he had been employed for some years by British Aerospace). His brief from Mr Walker, Chief Executive Officer, was to ascertain if Broxbourne Services was financially viable as a section.

The need for such a financial review arose in large part because of the radical change effected in stages by legislation in 1989 about the way local government services were procured. The effect of the legislation was to introduce compulsory competitive tendering for the carrying out of local government services. Private operators could for the first time compete with local government departments (or Direct Service Organisations as they came to be known). Moreover, the private operators often had the advantage that they were not unionised. As the claimant conceded, changes had to be made in management if boroughs such as the defendant were to continue to carry out local services. If local government lost out to the private operators, redundancies within the boroughs would inevitably follow, as the claimant also accepted. Mr Moore gave evidence that the rigours produced by the legislation were already affecting the defendant by 1992. But it is clear that the management problems persisted thereafter.

At the time when Mr Robertson took over as Director of Services, the section was running at a loss of about £100,000 per annum. His evidence was that management was lax, staff discipline poor and accounting chaotic. He had many meetings with the claimant. According to the claimant, Mr Robertson was at that stage friendly and relaxed. But the evidence of Mr Robertson was that by March 1996 he had come to realise that the claimant was not performing to the required standard and that, as he put it, “the scope of his role in breadth and depth was probably too great”.

Accordingly Mr Robertson decided that the claimant’s responsibilities should be reduced. He appointed a Manager for Housing, a Manager for Ground Maintenance, and a Quantity Surveyor who provided management assistance for housing and highways. The claimant accepted that he shed a number of his duties at this time. He estimated that ground maintenance had previously been taking up 20 per cent of his time and that transport had occupied about half or three-quarters of a day per week. Another five per cent of his time had been spent on house maintenance. So his duties were lightened to the extent of a reduction of about 30 per cent in all.

The claimant retained his responsibility for refuse collection, including collection of domestic, trade and clinical waste as well as the transport for carrying out that service which included in six hired compactor vehicles. An additional service was introduced in the borough in early 1998, namely the kerbside collection of material for recycling.

In December 1997 shortly before the recycling service was introduced, Dr Simon Leadbeater, was appointed Assistant Director of Services for the defendant. He had previously been employed by the defendant in another capacity. He had earlier gained experience of recycling when he worked for a company engaged in that business. Although recycling was within the claimant’s remit, Dr Leadbeater played a major role in preparing for its introduction in Broxbourne.

Hitherto I have been setting out the mainly uncontentious background to the issues which need to be determined in these proceedings to which I now turn. It is convenient to deal separately with the two limbs of the claimant’s case, namely (i) bullying and intimidation and (ii) breach of duty by failing to prevent the claimant from succumbing to stress-related illness. I will start with the former.

So far as the law is concerned, I was referred by Mr Pershad to Ellis v Eagle Place Services [2002] EWHC 1201 (QB); Waters v Commissioner of Police for the Metropolis [2000] 4 All ER 934; Anya v Oxford University [2001] EWCA Civ 405 and Quereshi v Manchester University [2001] ICR 863. It appears to me in the light of those authorities that the following questions arise:

Of these questions the answer to (iii) is plainly ‘yes’: amongst other things the defendant could have retrained the claimant or assigned him to another post. As I have already recorded, (iv) is conceded by Mr Platt, rightly in my view in view of the revised approach to vicarious liability in employment cases laid down by the House of Lords in Lister v Helsey Hall [2002] 1 AC 215. The material questions are (i) and (ii). As to issue (i), I think there is force in the suggestion made by Mr Pershad that the answer to issue (ii), the foreseeability of harm, is a useful guide when addressing the question whether the conduct complained of constituted bullying or victimisation.

The individual council officers who are alleged to have victimised and bullied the claimant are Mr Walker, Mr Robertson and Dr Leadbeater. The case for the claimant is that they created or permitted a “culture of abuse”. Reliance is placed on the matters pleaded in paragraphs 17 and 18 of the Amended Particulars of Claim, amplified by further events detailed in paragraph 19 of the skeleton argument of Mr Pershad. It is contended that, whilst some of the instances were blunt and obvious, others were more subtle and were designed to exert pressure on a man already clearly bending under the strain being heaped upon him. The claimant’s case, as put to Dr Leadbeater in cross-examination, was that from about March 1998 onwards Mr Walker, Mr Robertson and Dr Leadbeater were gearing up to get rid of the claimant.

As to the so-called “culture of abuse” my findings are as follows. I accept, on the basis of the evidence of the claimant and Mr Moore, that Mr Robertson was given on occasion to shout and swear at members of staff and to do so on occasion in the presence of other more junior employees. This is borne out by the notes of the “exit interview” of an employee named McLaughlin (who did not give evidence) and to an extent by the evidence of a council contractor named Ferrari (who did give evidence). Moreover. Dr Leadbeater accepted that Mr Robertson did become angry and abusive towards employees from time to time. Mr Robertson himself in his evidence conceded that he did on occasion become angry and did swear at employees. He explained as a manager he considered that the organisation could not afford to carry passengers. He tried to motivate staff by the use of sticks and carrots.

Dealing with the particular episodes relied on in the Particulars, I accept that Mr Robertson did on about 24 July 1998 in the depot and in the presence of subordinate employees shout at the claimant to “get that fucking vehicle fixed now”. I also accept that later that morning Mr Robertson again swore at the claimant telling him amongst other things to “get off your arse and do your fucking job”. Mr Robertson was angry at the continued malfunctioning of one of the vehicles needed for refuse collection and at the failure of the claimant to pursue the matter and at his decision to dump a load of plastic bottles in the yard at the depot. I further accept that on a later occasion, on 3 September 1998, Mr Robertson in the presence of Mr Ferrari called the claimant “a useless cunt” and told him to “fuck off out of this office... or I will do something that both of you fucking bastards will not like”. On this occasion Mr Robertson was angry at the continued failure of Mr Ferrari to perform his contractual obligation to clean the toilets in a local leisure park, leading to complaints from members of the public about the unacceptable conditions. Mr Robertson conceded that he vented his anger on the claimant and Mr Ferrari who he felt were consistently ignoring him.

It is, needless to say, undesirable that senior members of staff should resort to foul language in the workplace and particularly so when junior employees are within earshot. But the incidents which I have described must be seen in context. In so far as they involved the claimant, they are not numerous. He did not suggest that he had been sworn at by anyone other than Mr Robertson. They took place because (as Mr Robertson testified) he became exasperated at what he described as “a catalogue of errors” in the section for which the claimant was responsible. Mr Robertson was not gratuitously picking on a vulnerable junior employee; the claimant was himself in a relatively senior position who did not strike me as particularly sensitive. Both Mr Robertson and Dr Leadbeater testified that the claimant did not appear to be upset. I do not derive much assistance from the use of the phrase “culture of abuse”. The question with which I am concerned relates to the treatment of the claimant. Besides, I note that the only specific instance given by Mr Moore of the existence of such a culture within the council was when he said that Mr Walker directed a “hail of abuse” at Mr Robertson. But it turned out that, according to Mr Moore, the words used were no more than “never do anything like this again; how dare you; you are a fool”.

I should deal with two other pleaded incidents. The first relates to an occasion on 22 June 1998 when the claimant alleges he was told by Mr Mundy that Dr Leadbeater had told him to alter the minutes of a meeting in order to attach blame to the claimant. In his evidence the claimant was unable to specify what the alteration was or for what he was blamed. Unsurprisingly Dr Leadbeater was unable to identify the occasion. I am satisfied that, whilst Dr Leadbeater regularly corrected draft minutes to reflect what had taken place at meetings, on no occasion did he alter any minutes so as unfairly to cast blame on the claimant.

The claimant further complains that he was excluded from meetings (“ostracised” as he put it) and that Mr Robertson covertly approached members of staff for statements as to the claimant’s work capabilities. As to the former, the only meetings which, according to the evidence, the claimant ceased attending were meetings of the Health & Safety Committee which was the forum for council employees to voice concerns I do not accept that this was in any sense victimisation of the claimant. On the contrary, it gave him more time to concentrate on his other duties.

As to the taking of statements about the claimant from members of staff, both Mr Robertson and Dr Leadbeater accepted that such statements were obtained. Their evidence was that this was done for the purpose of a disciplinary hearing concerning the claimant which was under consideration in August 1998. There had been criticism by the claimant’s trade union representative at an earlier disciplinary hearing in February 1998 of the lack of precision in formulating the case against the claimant. I reject the suggestion that the defendant was victimising or bullying the claimant taking statements was a legitimate step in the disciplinary proceedings.

In my judgment the incidents relied on by the claimant in his amended statement of case, whether considered individually or cumulatively, do not amount to bullying or victimisation so as to entitle the claimant to compensation from the defendant. I have not overlooked the other conduct prayed in aid in Mr Pershad’s skeleton argument under this head. That consists for the most part of letters sent by Dr Leadbeater to the claimant in February and again in September 1998. I shall deal in more detail with that correspondence when I come to the stress claim. For present purposes I will confine myself to saying that I do not accept that this additional conduct constituted bullying or victimisation either in itself or in conjunction with the pleaded incidents. I will give my reasons for that conclusion later in this judgment.

I should add that, even if I had felt it right to hold that the defendant had through its officers bullied or victimised the claimant, I would still not have held that the claimant had established a right to damages. The reason is that I am unable to accept that the defendant through its officers either knew or ought reasonably to have known or foreseen that the conduct complained of would cause the claimant harm. It was not suggested on behalf of the claimant that any of the officers had actual knowledge that such harm would result. I do not think that those officers ought to have foreseen the harm which in the event occurred. As I shall spell out in greater detail in this judgment, there were no real warning signals. The evidence from the officers was that the claimant appeared to them (as indeed he appeared in the witness box to me) to be a phlegmatic and laid-back individual and not as someone who would be likely to crumple under pressure.

I turn then to the alternative claim for damages for the stress to which the claimant claims he was exposed by the breach of duty on the part of his employers. The law in this area was recently considered by the Court of Appeal in Hatton v Sutherland [2002] 2 All ER 1. I understand that an appeal to the House of Lords is pending against part of the decision. But for the purposes of the present case I take the law to be as set out by Hale LJ when giving the judgment of the court.

Although I did not understand there to be any dissension at the Bar as to the applicable principles, I shall for the sake of clarity recite part of the summary provided by Hale LJ at paragraph 43 of the judgment:

“43

From the above discussion, the following practical propositions emerge.

The illness or injury which it is common ground was suffered by the claimant in the present case is psychiatric. It is clear from the medical evidence that the claimant did develop a moderate depressive episode in August 1998. Symptoms of anxiety and depression had first appeared in late 1997 or early 1998 and reached the level of moderate depressive disorder in the autumn of 1998, after which there was a period of improvement followed by a relapse in the spring of 1999. The threshold question is therefore whether that kind of harm (ie a depressive illness rather than occupational stress) to this particular claimant resulting from stress at work was reasonably foreseeable by the defendant through its officers and employees.

It is accepted that the claimant’s employment by the defendant was uneventful in terms of his psychiatric health until the end of 1997 or early 1998. It follows that to all appearances the claimant had, as it appeared, proved able to withstand the pressures brought about by the introduction of compulsory competitive tendering and the combined responsibilities he was required to undertake from 1993 until March 1996 when Mr Robertson took the decision to relieve him from about one third of those responsibilities. It is not suggested that the claimant made any complaint about the hours he had to work during this period (or later). It appears to me that the history and the reduction in the workload of the claimant are both material to the threshold issue which I have to decide.

I accept that, as appears from the reconstructed notes of the claimant’s general practitioner, Dr Lakha, from early 1998 the claimant was suffering symptoms which included difficulty sleeping, feelings of lethargy and parasthesia. (The claimant gave evidence that he had experienced some health problems in the autumn of 1997, which Dr Lakha attributed to a virus or to shingles.) The claimant was absent from work for most of the first fortnight of February 1998. Dr Lakha decided that the possibility of cardiac problems should be investigated. It is not until 18 February 1998 that one first finds in the notes reference to stress at work. That appears to have followed receipt by the claimant of a letter dated 17 February 1998 from Dr Leadbeater notifying the claimant of a disciplinary interview to take place on 20 February. The complaints in that letter related in part to what had happened during his absence from work. In the end the hearing did not take place until 27 February. In the GP’s notes there are thereafter further references to stress and depression. But the claimant’s sick notes over this period made no mention of these problems.

However, as is accepted on behalf of the defendant, on 2 February 1998 the claimant’s wife, without the knowledge of her husband, went to see Ms Maria Simpson of the defendant’s personnel department because she was worried about his health. I accept that Mrs Barlow told Ms Simpson what is recorded in the manuscript note of the meeting made by Ms Simpson, namely that the claimant had tingling down his left arm and chest pains overnight and the doctor had said that most of his health problems appeared to be stress-related. As I say, the claimant was unaware of this encounter at the time. He himself did not tell anyone he could not cope with the job. As I believe the claimant accepted in the course of his evidence, he did not himself suggest at this time that his medical problems were caused by stress at work or that his job was making him ill.

I do not accept that at any time during the first two months of 1998 anything happened which either did or should have put the defendant on notice that the actions taken by its officers over this period would or might cause psychiatric (or other physical) harm to the claimant. I think that the claimant was mistaken in his recollection that he said anything either in the course of the conversation with Mr Robertson referred to at paragraph 44 of his witness statement or at the meeting with Mr Robertson and Dr Leadbeater on 17 February 1998 (paragraph 66 of his witness statement) which gave either of them to understand that his medical problems at that time were related to stress at work. As to the note made by Ms Simpson, it is to be noted that what her husband needed (and received) was a week off work. She did not consider it necessary to tell her supervisor about Mrs Barlow’s visit. I accept the evidence of both Mr Robertson and Dr Leadbeater that their understanding at the time was that the likely cause of the claimant’s symptoms was cardiac. Indeed that was the perception of the claimant himself at this time.. It is of significance that that was the diagnosis being explored at that time; the possibility of a cardiac cause was not discounted until March.

Moreover, it is clear from the undisputed evidence that the period from early April until July marked a distinct improvement in the health of the claimant. The medical notes over this period contain nothing of significance. Even if I had concluded that the defendant breached its duty of care to the claimant in January/February 1998, the damage flowing from such breach appears to me to be minimal.

At this point I should mention the suggestion that was put in cross-examination to Mr Walker, Mr Robertson and Dr Leadbeater, namely that they were each of them engaged from the spring of 1998 (if not before) in a concerted effort to procure the removal of the claimant from his employment by the defendant. This is manifestly a serious charge. Although it is perhaps not clearly reflected in the pleadings, I have considered whether there is substance in it and have concluded that there is not. That conclusion is largely based on the evidence of Dr Leadbeater, whom I considered to be a convincing and fair-minded witness on this and other issues. He told me (as did Mr Robertson) that the claimant’s performance throughout gave grave cause for concern. This is borne out by the memo of Dr Leadbeater of 17 February 1998 and by later documents including those relating to the baseball caps, the recruitment of Dr Flack and clinical waste being stored in the depot overnight. In order to deal with the continuing management problems posed by the claimant’s under-performance, Dr Leadbeater testified (and I accept) that he set about assisting the claimant to improve matters. That assistance took various forms, including frequent discussions with the claimant about operational problems and help with organising the introduction of kerbside collections. More important than those was the “Action Plan” which Dr Leadbeater devised in April 1998 and which was specifically designed to solve the problems which the claimant was finding. As the claimant accepted the Action Plan was followed up by regular meetings between the two of them. As Dr Leadbeater tellingly remarked, if this was a charade, it was a remarkably elaborate one. I dismiss the charge that there was a concerted plant to get rid of the claimant.

But it is not of course necessary in order for the claimant to succeed with his stress claim, that he should establish any such plan I have earlier rejected the pleaded claim of bullying/victimisation and the allegation that by reason of the events of January-February 1998 it was reasonably foreseeable by the defendant that the claimant would or might suffer psychiatric harm attributable to stress at work. The question to which I must now turn is whether such harm was reasonably foreseeable by reason of any act or omission of the employees of the defendant over the period from mid July until 7 September 1998. I select the latter date because it was on that day that the claimant broke down in tears at work and had to return home never to return to work. That was a truly appalling way for the claimant’s career with the defendant to come to an end. He and his wife deserve the greatest sympathy for the ordeal to which they have been subjected by his depression.

The case for the claimant in relation to this period can be summarised as follows: he complains that his employers, by subjecting him to what was described as a deluge of lengthy letters (including several threats of disciplinary action) over the period from mid-July until 7 September, at a time when they knew of his further health problems, must or at least should have foreseen that he would suffer psychiatric damage as a result. The letters in question are two letters dated 17 July, further letters date 27 July and 21 August, three letters dated 24 August, memoranda dated 25 and 26 August and letters of 3 and 4 September. All were written by Dr Leadbeater. Those letters fall to be considered in the light of the other conduct relied on by the claimant, including the incidents of alleged bullying with which I have dealt earlier.

It is, to say the least, questionable if subjecting an employee (even a senior one such as the claimant) who is under-performing with such a barrage of documents is likely to be the best way of bringing about an improvement. But that is not the question with which I am concerned. Did the relevant officers of the defendant foresee the risk of psychological harm to the claimant? If not, should they have done so? As to the former, Mr Walker, Mr Robertson and Dr Leadbeater were all firm in their evidence that it did not occur to them that such harm would or might result. I accept that evidence. Indeed there is very little to which the claimant can point to support his case that such harm was foreseen. Reliance is placed on his absences from work and an anonymous “newsletter” of about July 1998, satirical in tone, which depicted the claimant’s car, and described it as sweating and shaking and perhaps having a nervous breakdown. But the absences from work would not have signified psychiatric problems. I cannot accept that anyone would or should have taken the “newsletter” as seriously indicating that the claimant was or might be suffering psychiatric symptoms.

Ought the defendant through its officers to have foreseen psychological damage? In my view what happened during the summer of 1998 was that Mr Robertson and Dr Leadbeater in varying degrees became frustrated and exasperated by the continued failure of the claimant to discharge his duties with the competence which they were entitled to expect. I believe that at this time the claimant had become thoroughly disenchanted with the changed environment in which he was expected to perform his job. He was bitterly disappointed that the suggestion that he should be made redundant did not materialise. I think that the numerous communications which took place with the claimant were motivated by a somewhat despairing last effort to bring about an improvement. Dr Leadbeater candidly admitted that, if he were having to deal with a similar problem today, he would approach it differently. But that is a far cry from saying that he should have foreseen that psychiatric harm would result from the approach that he in conjunction with Mr Robertson in fact took.

I accept the evidence of both Mr Robertson and Dr Leadbeater that the claimant had always appeared to them to be a stolid and unflappable individual and that they were genuinely shocked and surprised at his apparent breakdown. The claimant had not appeared to be a vulnerable individual. There were no overt warning signals. The claimant’s medical notes make no mention of stress or pressures at work between February and 22 August 1998. There was no evidence that the claimant complained at this time about his workload or that he intimated to the defendant that his health was suffering by reason of stress at work. The claimant accepted that he was aware of the counselling service provided by the defendant for its employees but did not avail himself of it.

In these circumstances I find myself unable to accept that the defendant through its officers did or omitted to do anything in July, August or September 1998 which, even in conjunction with what had gone before, gave rise to a foreseeable risk of psychiatric injury. That being my conclusion, it is not necessary for me to consider the problems touched on in argument in relation to the claimant’s case on causation. The claim fails.