Sayers v Cambridgeshire County Council

In this action the Claimant, Mrs. Sayers, brings a claim against Cambridgeshire County Council (“the Council”) for work related stress in the course of her employment in the Council’s Social Services Department.

Prior to working for the Council, Mrs. Sayers started work with the Department of Health and Social Security as a clerical assistant from 1973 to 1977. She then decided to move into Social Work and had a number of posts within Northamptonshire County Council from 1978 until 1993, being promoted and finally being appointed as an Acting Team Manger in Care Management.

Mrs. Sayers decided to seek opportunities elsewhere to progress her career and was first employed by the Council in December 1993, when she was appointed as Team Manager in charge of two separate social work teams at Addenbrooke’s Hospital: one group covering children and families; the other dealing with old people. In addition to that hospital, the teams also covered other hospitals both in Cambridge itself and in the County.

After five years she successfully applied for the post of Operations Manager with the Council’s Social Services Department with effect from 1 April 1998.

In that post she was the Operations Manager for older people, physical disability, sensory services assessment and care management for the Council’s South Cambridgeshire Area.

There was restructuring and from 3 May 1999 Mrs Sayers was appointed as Operations Manager for Old People and Physical Disability (“OPPD”) for the whole County.

Towards the end of 2001 the Council decided that a restructuring of Adult Services was necessary. This related to the Government’s requirement for Social Services to work more closely with Health Services and the need for the Council’s Social Services Department to integrate with the newly formed Primary Care Trusts from April 2002.

As a result, from 1 April 2002 Mrs. Sayers was appointed as Operations Manager for South Cambridgeshire Primary Care Trust.

Mrs. Sayers was evidently concerned at certain aspects of her new role and the way that role developed after April 2002. In June 2002 she applied for the post of Head of Adult Services at Milton Keynes but was not successful. After various events to which I will refer below in more detail, Mrs Sayers left work in August 2002 suffering from psychiatric illness and was unable subsequently to return to work. Eventually these proceedings were commenced on 30 August 2003 and Mrs Sayers’ employment with the Council was terminated on the grounds of ill health on 31 August 2003.

The central question in these proceedings is whether the Council is liable to Mrs Sayers in respect of her psychiatric illness. The case, as pleaded on her behalf has gone through a number of amendments and, as finally formulated in closing relies on the following causes of action:

The claim was also at one stage pursued under the Protection from Harassment Act 1997. That claim is no longer pursued. The Health and Safety Information for Employee Regulations 1989 are also no longer relied upon.

Before turning in more detail to a legal analysis of those causes of action, it is convenient to review the evidence and consider the cause of Mrs Sayers’ illness. I approach the matter in this way so as to focus such questions as foreseeability and breach of duty on the relevant matters.

In addition to hearing from Mrs Sayers, I also heard from 14 other factual witnesses called on her behalf. Theresa Smith worked for Mrs Sayers as a part-time administrative assistant from September 2000 and then as her full-time Personal Assistant from August 2001 until May 2002; Anna Goodall worked with Mrs Sayers initially as a Care Manager, with Mrs Sayers as her Team Leader, then as a member of the East Cambridgeshire Team and Addenbrooke’s Team for which Mrs Sayers was Operations Manager. She was then seconded as Project Officer for the Contact Centre project where she worked alongside Mrs Sayers; Claire Saville who was Manager of Occupational Therapy Services from 2001 for which Mrs Sayers was Operations Manager; John Mullarkey who from 1999 acted first as assistant Team Manager and then from 2001 as Team Manager of the Addenbrooke’s Team; Joanne Tompkins who worked in the Addenbrooke’s Team from 1993 with Mrs Sayers who was initially her Team Manager and then Operations Manager for her Team; Louise Palmer who worked as Senior and then Principal Accountant responsible for Adult Services alongside Mrs Sayers; Diane Fossey who from 2000 was a Team Manager for South Cambridgeshire, with Mrs Sayers as her Operations Manager; Ann Tait who from 1998 to 2001 was in the Cambridge City Team with Mrs Sayers as her Operations Manager; Alison Reid who from 2000 to 2002 was Partnership Manager of Fenland Primary Care Trust when Mrs Sayers was the Council’s representative on that Trust; Clare Welton who worked with Mrs Sayers from 1993 and who from 1999 was Team Manager for the East Cambridgeshire and then Huntingdon Team, with Mrs Sayers as her Operations Manager; Carol Holloway who was a Senior Training Manager and acted for a period as “mentor” for Mrs Sayers; William Newman who was an independent consultant employed by the Council from February 2002 to advise on the call centre project; Sharon Burkett (Sharon Graham) who was a Social Worker managed by Mrs Sayers and Pamela Powell who was initially a Team Leader for South Cambridgeshire with Mrs Sayers as her Operations Manager and then from 1999 became Mrs Sayers’ part-time Staff Officer.

On behalf of the Council, I heard from Graham Wrycroft who was the Council’s Assistant Director (Adults) in the Social Services Department from 1998 to 2004 and was the person to whom Mrs Sayers reported; Elizabeth Railton who was the Council’s Director of Social Services from 1998 to 2003 and Harold Bodmer who was also an Operations Manager, being responsible for Cambridge City from May 2002.

I deal with the evidence in more detail below. I find that all the witnesses tried to recall events that happened over 3 years ago, some of which were of less importance at the time than they are now. Mrs Sayers was, understandably, still upset by the events of August 2002 and, in giving her evidence I find that certain matters became overemphasised and she focussed more attention on them than she did at the time. Whilst her perception of events is of importance, where she has expressed herself in a document at the time then, unless there is a reason to do so, I have relied on what is reflected in the terms of that document in the few occasions where her evidence was different. The witnesses who were called on her behalf, particularly those such as Ms Powell who worked closely with Mrs Sayers or were close friends, obviously sympathised with Mrs Sayers’ position and again, as a matter of emphasis, viewed things from a perspective which was more favourable to her. I have therefore had to taken this into account in assessing their evidence, particularly on matters which were more subjective.

In terms of the Council’s witnesses, their witness statements were brief and not very enlightening. As a result, their oral evidence was of greater importance. They had all moved on from the posts they previously held and had genuine difficulty in trying to recall the detail of events in 2000 to 2002. However, I consider that they did their best to recall matters as best they could.

Each party also called expert psychiatric evidence. Dr Michael Orr, a Consultant Psychiatrist at Isham House, Northampton was called by Mrs Sayers. Dr Jonathan Bird, a Consultant Neuropsychiatrist and Clinical Electroencephalographer from the Burden Centre for Neuropsychiatry at Frenchay Hospital, Bristol was called by the Council. There was little difference between the experts and they were able to reach agreement on many matters. I deal, below, with my approach to their evidence on those areas where their views differed.

In April 1998, when Mrs Sayers commenced as Operations Manager she was responsible for managing six Team Managers and one Administration Manager. When in April 1999 she was appointed as Operations Manager for the whole county she acquired a further three Team Managers and two further Administration Managers. By November 2001 Mrs Sayers was responsible for a total of 14 Managers.

In that role, Mrs Sayers was responsible for the management and supervision of those Team Managers. This involved her chairing Team Manager meetings on a regular basis and also in meeting with each of the Team Managers on a monthly basis for what were known as “supervision” sessions.

She also had other responsibilities. She had to attend a number of monthly meetings, take on project work, which included implementation of the SWIFT system, a Best Value Review of Assessment & Care Management and a Contact Centre project. She also had to act in various other roles, including that of the Social Services representative on the Executive Committee of the Fenland Primary Care Trust (Fenland PCT).

There was little challenge by the Council to the scope of Mrs Sayers’ workload. Whilst Mrs Railton said that Mrs Sayers’ workload was not fundamentally greater than that of other Operations Managers, it was accepted by Mr Wrycroft that her post had a large ambit when it became a countywide post in 1999. The evidence of Ms Theresa Smith, Mrs Sayers’ PA and of Ms Pamela Powell, Mrs Sayers’ Project Officer demonstrated the difficulty of arranging Mrs Sayers’ diary, the large amount of mail and number of emails, the pressures on Mrs Sayers’ time, the need to travel to meetings within the County and the extensive material to be read and considered in relation to each of Mrs Sayers’ tasks.

It was accepted by Mrs Railton, Mr Wrycroft and Mr Bodmer that Mrs Sayers was always commenting on the excessive extent of her workload. It was described as a “constant refrain”. This was also the perception of Ms Tait, Ms Welton, Ms Holloway, Ms Tompkins, Ms Goodall, Ms Palmer, Mr Newman, Ms Fossey and Mr Mullarkey, all of whom came into contact in different ways with Mrs Sayers.

The Council also had a system of “360° Feedback” by which members of the Council staff gave comments on the performance of a particular member of staff. In relation to the 2001 Feedback on Mrs Sayers, the following comments were made:

In 2001 the Council has decided to restructure the Adult Services and this led to Mrs Sayers being appointed as Operations Manager for South Cambridgeshire Primary Care Trust from 1 April 2002. Mr Wrycroft says that the size of Mrs Sayers’ post was reviewed and from April 2002 the scope of her post had been much reduced.

In their Feedback in 2002, the comments made by others on Mrs Sayers’ “work/life balance” were as follows:

In her statement, Ms Powell refers to the dwindling down of Mrs Sayers’s job from about April 2002 to a single post in one locality. However, she says that in August 2002 although many of Mrs Sayers’ duties were being removed, she had not been relieved of much or all of what went before. Rather she says that she still had at least as much to do. However, she later says that the meetings of Team Leaders continued until June 2002 and in April 2002 the Managers went into their own localities and Mrs Sayers did not manage them any more.

Mrs Sayers says that from 1 April 2002 she had been expected to take on new work for the South Cambridgeshire Primary Care Trust as well as continuing with some of her old responsibilities in addition to helping with the new Operations Managers’ inductions. She says that the transition to the new structure was extremely difficult for her and she was unable to leave ongoing work and pick up new responsibilities.

The time worked by Mrs Sayers was a matter of debate at the hearing. She, or an assistant on her behalf, only completed timesheets for a limited period and I have only seen timesheets for the period 13 March to 14 August 2000. Those time sheets are generally consistent with the hours that are shown in manuscript in Mrs Sayers’ diary for that period. The timesheets show Mrs Sayers starting work at the earliest at 7:00am on some days and at the latest continuing to 10:00pm on occasions. The overall hours recorded in the timesheet ranged from 40.25 hours in the week commencing 13 March 2000 to 56 hours in the weeks commencing 22 May and 26 June 2000.

In her evidence, Mrs Sayers referred to periods of 89.55 hours and 74.05 hours for the weeks commencing 15 and 22 May 2000 as being not untypical. However, on analysis, those hours do not represent correct figures. They are supposed to be the hours on the working time records aggregated from Sunday 14 May but have, in fact, been calculated from Monday 8 May thereby adding additional hours. The correct figures for the weeks commencing 15 and 22 May 2000 are therefore some 55 and 56 hours.

On the basis of the complete weeks worked from 13 March to 14 August 2000 the average per week is closer to 50 hours. The working time records over a 24 week period from 22 November 1999 to 7 May 2000 show an average of 40.22 hours.

Whilst Mrs Sayers states that the working time records are “invariably not accurate” and in cross-examination suggested that they have no credibility, the manuscript figures in the diary show that they reflect the hours which she worked in the office. I accept that they do not record the hours worked in evenings or at weekends for which she kept no records. It is clear that Mrs Sayers sent emails from home and she was provided by the Council with a laptop with remote access to do so. I also accept that she spent time in the evening and at weekends carrying out or completing tasks.

Ms Holloway states that Mrs Sayers’ hours were significantly longer than hers. She states that Mrs Sayers was always available at 8:00am and at 6:00pm. She also adds that she got to know Mrs Sayers socially and found it remarkable that Mrs Sayers would often be in bed at 9:00pm.

There are two other figures for hours which are mentioned in evidence. At the time of her appraisal in May 2000, Mrs Sayers stated that “working time directive records 324 in excess of core hours.” It is not clear what this means or where this figure came from but Mrs Sayers thought that it was not a month and not a year. In a grievance she raised in July 2000 a figure of 500 hours is quoted but she was unable to explain it.

The working time records which exist show total hours from November 1999 to August 2000, with details from March to August 2000. I do not consider that the figures of 324 or 500 hours can, given Mrs Sayers’ uncertainty as to where they came from, assist in establishing her hours.

In her March 2001 appraisal Mrs Sayers states that:

“Since coming to post, my supervisory responsibilities have increased from 9 to 13 managers. Project management responsibilities have increased significantly as a result of Best Value and modernisation agendas and this is additional work. Consequently my working hours have increased to between 50-60 hours per week.”

The reference to “coming to post” is, I find, a reference to 1999 so that Mrs Sayers is saying that her working hours “have increased to between 50 to 60 hours per week”.

Mr Bodmer gave evidence of the hours that he worked in his role of Operations Manager. He said that he tried not to work more than 50 hours but that he regularly put in additional hours above that. He said that he worked from 8:00 or 9:00am until 7:00pm each day and that he worked 2 to 3 evenings a week and 1 to 2 hours regularly at weekends. This shows that he was working between 50 and 60 hours a week.

Whilst I consider that Mrs Sayers is in error in her reference to 89.55 hours and 74.05 hours for the weeks commencing 15 and 22 May 2000, overall, I have come to the conclusion that until April 2002 Mrs Sayers worked generally in the range of 50 to 60 hours per week, taking account of work on emails and other work in evenings and at weekends.

I have no hesitation in finding that Mrs Sayers was overworked in the period to April 2002 in the sense that she had a large number of responsibilities with a great deal of demanding work and that she needed to work between 50 and 60 hours each week to be able to carry out her workload.

There are references in the evidence to Mrs Sayers’ ability to manage her workload. Mrs Railton states that Mrs Sayers had difficulty setting performance objectives and goals and that clearly defined goals for the Team Managers would have led to Mrs Sayers devolving more responsibility to them. She says that Mrs Sayers encouraged dependency amongst her Team Managers so that they tended to come to her with their problems which added to her workload. Mrs Railton refers to the fact that she arranged mentoring for Mrs Sayers with Mr Chris Burgon, an Assistant Director in another Authority and also arranged coaching through the Inspire Partnership.

As can be seen from the evidence of the large number of witnesses who were called on her behalf and I accept, Mrs Sayers maintained a good and close working relationship with those whom she supervised in her role of Operations Manager. They spoke highly of her attitude and described her as always being available and having good professional and supervisory skills. Ms Saville referred to her as “someone who was always available for me whenever she could be, being both responsive and constructive. I found her professional and supervisory skills better than many managers I have worked with in the past.” Ms Welton states that Mrs Sayers was “a very supportive manager and would always try to find time to assist with problem solving.” Ms Tomkins described Mrs Sayers as the best Manager she had ever had and that she found her “extremely supportive, good at what she did, someone who gave staff time” and“skilled at developing their strengths.” Ms Goodall said that Mrs Sayers was “supportive, professional and very good with her staff.”

Mrs Sayers was evidently a conscientious worker who was committed to her work. She had a very close and supportive working relationship with those for whom she was responsible and adopted a “hands on” approach to solving problems. She also set herself high standards. I have no doubt that this approach combined with the magnitude of her responsibilities to cause the difficulties in the management of her working time.

Mrs Sayers recognised this when she referred in her March 2001 Appraisal to “Actions taken to address additional hours” and said:

“For my position, it is emails, post and direct reports that tip the balance into long working hours. To attempt to readdress this I have:-

•

Post prioritised by admin

•

Emails prioritised by Staff Officer

•

Delegate to Team managers e.g. P.C.O. working groups etc.

•

Supervision extended to 6 weeks for experienced managers- possibly moving to 8 weeks next year. New Mangers 4-5 weekly.

•

No working at weekends

•

No laptop at home

•

Extensive exercise with peer and senior managers re: time management”

As I have said, Mrs Sayers reported to an Assistant Director of the Social Services Department, Mr Wrycroft who, in turn, reported to the Director of Social Services, Mrs Railton.

Just as Mrs Sayers carried out supervision sessions with her Team Managers, she too attended supervision sessions with Mr Wrycroft. Prior to August 2000 problems arose in the working relationship between Mrs Sayers and Mr Wrycroft. There was clearly a difference in management style between the two of them and Mrs Sayers was concerned at Mr Wrycroft’s attitude towards her.

On 17 July 2000, Mrs Sayers decided to raise her concerns about Mr Wrycroft’s attitude as a grievance with Mrs Railton. In a paper explaining her grievance, Mrs Sayers set out a chronology of events from February 2000 to July 2000. An extract from that chronology dealt with a Performance Appraisal interview with Mr Wrycroft on 19 April 2000 and states that she thought that the interview was a most unsatisfactory experience. She said:

“I believe the paperwork has not been read beforehand although submitted in advance. Training and personal development were not touched on at all. There were several unsubstantiated criticisms of my performance relating to budget management, presentation, workload and time management. Despite strenuous efforts on my part there was no acknowledgement that my post was disproportionately large, only that it is a ‘big job’. There were several comparisons made between my role and job in managing 11 staff and fieldcare teams and Graham’s job as Assistant Director in managing a large number of staff. In my view an inappropriate comparison as I am not an Assistant Director.

I discussed the often repeated criticisms of my lack of presentation skills in the context of in excess 500 hours overtime worked and the effect that managing a large workload and long hours has on performance and professional development. I also discussed the difficulties of long standing inadequacy of administrative support raised many times by me in supervision [to date I have had 6 scale 3 admin assistants] and a half-time staff officer.

Further angered, Graham wanted to know where my Working Time Records were and how could he monitor my hours and if he did not see these in supervision. If I had ‘high standards’ then my job would be difficult to manage.

I reminded him that to my knowledge I am the only manager in my group who observes the instruction to record working hours. My admin support does not understand how to process the forms and nor did those before her. I fully expect at my level to work in excess of my hours without discussion with my manager but there comes a point at which this becomes excessive and affects performance and he needs to recognise this.”

Mrs Sayers’ grievance was dealt with informally by Mrs Railton. Although at the hearing there was a degree of investigation of the process followed by Mrs Railton, the outcome was a meeting between Mrs Railton, Mr Wrycroft and Mrs Sayers at which, it seems, a sensible way forward was agreed. In essence, following a draft memorandum of 25 July 2000 by Mrs Railton, she met with both Mr Wrycroft and Mrs Sayers and they agreed to work on improving their relationship, which was obviously important for the future performance of Adult Social Services within the County. I consider that Mrs Railton adopted a sensible pragmatic approach to the differences between two senior personnel.

At about the same time, in August 2000, various members of the teams which Mrs Sayers managed also raised concerns about Mr Wrycroft and his attitude to Mrs Sayers. They prepared a note which explained the background in the following terms: “During our Operational Management meeting on Tuesday 25^th July, Lois Sayers was absent for the majority of the meeting. When she did finally join us she was clearly upset and distressed, when asked what was wrong, she briefly explained that there was a conflict between herself and [Mr Wrycroft]”

The note then raises the following specific points:

(1)

“Our strategy meetings, chaired by Graham Wrycroft, are always rushed, and did not allow for open discussion”

(2)

“When Team Managers do contribute to debates, often we are hurried to make our points, and those discussions are curtailed if they become challenging.”

(3)

“We have observed when Lois contributes at these meetings her points are either dismissed or Graham will talk across her, not acknowledging her contribution.”

(4)

“Graham appears to have no grasp of detail, needing someone to interpret the details for him or if there is an issue that he is unsure about he will stop the debate from continuing, leaving the situation without a clear sense of direction.”

(5)

“Lois appears to be undermined during these meetings. For instance Graham was unable to chair a meeting and instead of asking Lois to chair, Harold Bodmer was invited to chair the meeting.”

That note was discussed by a number of Team Managers at a meeting with Mrs Railton, which Ms Diane Fossey noted as being on the morning of 6 September 2000. There does not seem to have been any further concern raised in this manner and it appears that the combination of the grievance by Mrs Sayers and the approach by the Team Managers had beneficial effects on improving relationships between Mrs Sayers and Mr Wrycroft.

In her witness statement Mrs Sayers says that by the time of her 2001 Appraisal she was pleased to say that she felt more positive about her relationship with Mr Wrycroft, but that the size of her workload remained an issue and was affecting her health detrimentally. She refers to an Adult Management meeting with Mr Wrycoft on 12 February 2002 which she considered to be positive.

By the time of the annual Appraisal carried out in April 2002, Mrs Sayers said this about “Manager Support” in relation to Mr Wrycroft:

“Your acknowledgement of the size of my workload has been helpful to me. Your management of the current ‘reengineering’ exercise has been mostly empowering and I particularly appreciated your consultative and inclusive approach in enabling operations managers to agree division of work for the new structure. You have sought to enable people to retain areas of particular interest; though I regret the loss physical disability, particularly sensory services. Management of meetings is more relaxed and allows for discussion and this has been helpful.

Most of all, I have sincerely appreciated the guidance and support you have given me with regard to the development of Social Services Direct and your appreciation of the importance of this project. I have found your attitude to this potentially threatening and significant change, open minded, positive, flexible and thus enabling. A strong contrast to other senior managers.

In summary, the changes in your overall management style towards inclusivity and consultation have created an environment of empowerment in which to achieve goals, and to honestly share frustrations and difficulties.”

In the Overview section she said that “It has been a positive year bringing professional growth and achievement despite or because of the contact centre bruises and lessons learnt!”. In relation to Work/Life Balance/Flexible Working Mrs Sayers added: “I have worked hard to reduce my hours in the last year through ongoing prioritisation, delegation and by maximising available resource. The forthcoming year will see a more equitable distribution of work between the 4 operations manager posts and this will enable me to further reduce my hours”.

In her Feedback on Mr Wrycroft in April 2002 Mrs Sayers made such comments as:

On 18 June 2002 there was an Adult Management Team away-day when Mrs Sayers says that Mr Wrycoft gave her encouragement in an application for a post at Milton Keynes and there was a follow-up discussion with Mr Wrycroft on 19 June 2002 in relation to her presentation at the interview for that job.

Mrs Sayers explains in her witness statement the background to the restructuring of services which was decided upon by the Council towards the end of 2001. This led to Mrs Sayers becoming Operations Manager for the Assessment and Care Management for South Cambridgeshire from 1 April 2002.

She explains that the restructured posts for the existing Operation Managers were not the subject of an interview process. Instead, in about April 2002 she undertook to let Mr Wrycroft have an analysis of her own and her colleagues’ choices of locality.

She says that, in discussion with the two other Operations Managers, Mrs Smythe and Mr Bodmer, it was agreed between them that they should take responsibility under the new arrangements, for the Primary Care Trust closest to their homes and she prepared a chart indicating the arrangement showing her first choice as the South Cambridgeshire locality.

Mrs Sayers states that, in relation to the changes, with the exception of the Operational Therapy service, she was reasonably pleased that her skills had been recognised and would be appropriately utilised by the Department.

From Thursday 18 July to Friday 2 August 2002 Mrs Sayers took annual leave and went on holiday to Turkey, returning to work on 5 August 2002.

On 12 August 2002 Mrs Sayers had a meeting with Ms Helen Taylor at which Mrs Sayers was told that the operational management for a new hospital discharge team at Addenbrooke’s Hospital would be placed not with South Cambridgeshire but with Cambridge City PCT.

At 1:00pm on 13 August 2002 Mrs Sayers had a supervision session with Mr Wrycroft. Although there seems to be some confusion as to the date, I find that this was the supervision session which Mrs Sayers describes as “a complete disaster” from her point of view and not the one in July 2002. I deal with this in more detail below.

Mrs Sayers had an upper respiratory infection and on 13 August 2002 visited her doctor and said that she had been having problems since the holiday 2 weeks before in Turkey as had other members of the family. Her respiratory condition was reviewed by the doctor on 16 and 19 August 2002. She last went to work at the Council on 19 August 2002 and on 20 August 2002 she visited her doctor with a cough and infectious gastroenteritis and the doctor noted “3 weeks diarrhoea since return from Turkey”. It was on 3 September 2002 that the doctor noted “neurotic depression reactive type” and “anx/depr stress related to work.”

Dr Orr and Dr Bird were engaged as expert psychiatrists to give an opinion, in particular, on the medical condition which caused Mrs Sayers to leave work on 19 August 2002 and be unable subsequently to return to work.

Dr Orr, engaged on behalf of Mrs Sayers saw her on 5 March 2003 and 14 July 2003 and prepared a report on 20 October 2003. The purpose of his report was to evaluate the circumstances which may have caused her to take leave of absence in August 2002; to describe her psychological or psychiatric problems prior to that date and to offer an opinion about whether Mrs Sayers was suffering from a recognised psychiatric illness or disorder. He noted that Mrs Sayers dated her symptoms to August 2002 when she had a viral illness with a sore throat and high temperature, felt unable to return to work and became progressively more depressed. She attributed her depressive symptoms to the cumulative effects of stresses at work from the middle of 1999, when she said that she had become concerned about the scope of the job that she had taken on and that she had initially tried to cope by working longer hours with 12 to 14 hours per day at times (Dr Orr accepted that, based on his notes, the phrase “at times” should replace “becoming the norm” which originally appeared in his report).

He noted that Mrs Sayers had a family history of asthma and emphysema and her sister suffered from post natal depression. He stated that Mrs Sayers was not aware of any other relevant family history of medical or psychiatric history and her own health, up until August 2002, had been good. At that stage Dr Orr had not seen Mrs Sayers’ medical history. In the light of the matters disclosed in the medical records, there clearly was a relevant psychiatric history prior to August 2002. Mrs Sayers was asked questions about this in cross-examination. I did not find her comment that she had never seen them in the context of psychiatric problems convincing, given the facts. For many years she had been suffering from recurring psychiatric episodes which she overcame and which to a large extent she kept to herself. Mrs Sayers must have been aware of her psychiatric history but she was, to a large extent, in a state of denial because she wanted to overcome those difficulties and succeed in the very senior posts to which she had been promoted. However, given the position in March 2003, I do not accept that her failure to disclose these matters to Dr Orr can be explained other than by a wish to minimise the impact of her previous psychiatric history.

Dr Orr’s diagnosis was that Mrs Sayers was suffering from a depressive disorder of moderate severity with somatic symptoms (ICD10 F32.1.1) and in his opinion that depressive disorder was a consequence of the cumulative effects of her work-load and her perception of a lack of support and active undermining by management between mid 1999 and August 2002.

Dr Bird, engaged by the Council, saw Mrs Sayers on 23 July 2004 and prepared a report dated 29 September 2004. In that report he set out a history based on information obtained from Medical Records from 1967 (when Mrs Sayers was 12) until March 2004.

Dr Bird noted that there was a significant increase in the responsibilities and pressures of work in Mrs Sayers’ new position from mid 1999. He then sets out, under a section headed “prior vulnerabilities”, his summary of Mrs Sayers’ psychiatric history derived from the medical notes.

He states that Mrs Sayers was “somebody who was troubled with depressive symptoms and anxiety symptoms on various occasions through the years and in 1972, was presenting with a variety of complaints, including depression, dizziness and palpitations, and the psychiatric assistant considered that she had a “personality disorder”. In 1973 she took an overdose of her mother’s tablets after an argument with her mother…. In 1980 she had a number of symptoms which were thought to be due to the pressure of studying and taking her exams and was treated with an antidepressant for some months. During the 1980s she continued to visit her General Practitioner on between ten and fifteen occasions most years, for a variety of symptoms, including from time to time, complaints of depression. In 1989, there were a variety of work and family problems, which were again diagnosed as reactive depression and she was treated with Prothiaden. In 1992, she undertook counselling, apparently because of stress at work, having in 1991 left the Child Protection Unit because she was very angry at the lack of co-operation and support, as she perceived it, from her manager (according to the General Practitioner notes). However, she continued to be somewhat panicky and “depressive” according to a comment in November 1992. In early 1997, Mrs Sayers was talking to her General Practitioner about recurrent infections and her general health, and apparently was considering retirement on ill health grounds, she was thought to be depressed and was started on the antidepressant, Fluoxetine, with some improvement, although remained anxious and “stressed” and low at times. There was also a house move apparently at this time. Apparently after the move of house, in early 1998, Mrs Sayers stopped her Fluoxetine but then felt unable to cope and re started it at her General Practitioner’s suggestion, and, in fact, during 1998 (as far as I can tell from the records) Mrs Sayers frequency of attendance at the General Practitioner’s surgery seems to have reduced a little…. During 1999, Mrs Sayers appears not to have visited her General Practitioner, apart from a routine smear test, for the first 7 months of that year… . The first mention of psychological symptoms after the move of house/GP/Job in 1999, was in July 2000 when she attended her General Practitioner complaining of several months of feeling low in mood and stating that she had an extremely stressful job with long hours, and that her boss was bullying and harassing her, and she was going to make a formal complaint about this.”

Dr Bird considered that the medical records which he summarised above and which had not been examined by Dr Orr, demonstrated a considerable vulnerability to psychological and “psychosomatic” symptoms. He stated that Mrs Sayers seemed to be significantly prone to the psychological process of “somatisation”, a tendency to present with unexplained medical symptoms which are usually thought to be the individual’s response to underlying psychological stress or distress. He expressed the view that that Mrs Sayers would almost have fulfilled the criteria for “Somatisation Disorder” the essential feature of which, as stated in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition-Revised ‘DSM IV TR 2003), is “a pattern of recurring, multiple, clinically significant somatic complaints”.

He considered that Mrs Sayers was indeed a somewhat vulnerable individual, in terms of her psychological make up, but that this would probably not have been evident to anyone other than, perhaps, her General Practitioner, because, as is typically the case, Mrs Sayers was able to continue with most of her normal activities for most of the time.

Dr Bird and Dr Orr helpfully produced a Joint Statement of Points of Agreement and Disagreement dated May 2005.

During the course of the hearing the expert evidence developed and, at my direction, Dr Bird and Dr Orr met and produced a Second Joint Statement dated 13 February 2006. That was received after the end of the closing submissions. I therefore permitted further written submissions. The Claimant made some further written submissions on that document on 15 February 2006 and the Council informed me on 16 February 2006 that they did not wish to make any further submissions, except to observe that the Claimant’s submissions appeared to seek to make a new claim for damages for a July 2000 injury which was not pleaded. In reply the Claimant stated that it saw no need to amend the pleadings any further as the matters set out in the further submissions were covered in the Particulars of Claim and the medical evidence.

In the Second Statement of Dr Orr and Dr Bird they dealt with Mrs Sayers’ previous history and they agreed thatMrs Sayers received treatment from her General Practitioner for depressive symptoms on four occasions (1980, 1989, 1992 and 1997) before 2000 and that it is likely that these would have satisfied the criteria for mild or moderate depressive episodes.

Dr Bird and Dr Orr then went on to consider the risk of recurrence as applicable to Mrs Sayers. In that respect they stated:

“We agree that depressive disorders are characterised by their recurring nature and that there is a reliable body of evidence showing that the risk of recurrence depends on genetic factors, constitutional factors (including personality factors), past history of depressive episodes, and psychosocial factors (independent life events in particular).

We agree that Mrs Sayers has a family history of depressive disorder (her sister suffered from a post-partum depressive episode)

We also agree that personality factors, a past history of depressive episodes prior to 2000, and psychosocial factors will have contributed to Mrs Sayers' depressive episodes in 2000 and 2002.

We have agreed that Mrs Sayers suffered from four depressive episodes of minor or moderate severity prior to 2000. Dr Bird believes that the episode in 1972 may have also represented a modified form of a depressive episode. In the event of each of these episodes fulfilling the requirements for a diagnosis of Major Depression, Mrs Sayers would be considered as having a 90% chance of recurrence at some stage. Dr Orr has reservations about the safety of an episode count in Mrs Sayers' case as there is insufficient information in Mrs Sayers' medical record to confirm a diagnosis of Major Depression in each instance.

It is generally accepted in Psychiatry thata past history of depressive symptoms and the presence of independent life events in the six months preceding an episode are two powerful predictors of relapse. Dr Bird takes the view that it is generally accepted in Psychiatry that past history is the best predictor of prognosis.

We agree that Mrs Sayers had a degree of vulnerability to a recurrence of depressive symptoms in 2000 and 2002 by virtue of a family history of depression, aspects of her personality, previous episodes of depression, and significant psychosocial stresses. Dr Orr believes that stresses at work outweighed family and other stresses, while Dr Bird believes, whilst various stresses were relevant, Mrs Sayers was at high risk of developing depression in any event because of her past medical record.

We also agree that some aspects of Mrs Sayers' personality, such as her tendency to set herself high standards and her vulnerability in situations characterised by a sense of helplessness will have contributed to her risk of a recurrence.

We agree that stresses at work, whether in response to actual or perceived workload factors and interpersonal difficulties with her line manager, are likely to have contributed to the development of Mrs Sayers' depressive symptoms in 2000, 2001 and 2002

Dr Orr is of the view that the limitations set by the applicability of existing knowledge and by the partial nature of the information available from Mrs Sayers' medical records do not permit him to offer a confident opinion about the weighting that should be given to each of these factors.

Dr Bird quotes the generally accepted evidence (see New Oxford Textbook of Psychiatry) that both major and minor (mild/moderate) depressions have about the same chance of recurrence (i.e. 90% after three episodes) but of the same typeas before.”

Dr Bird then summarised his view that the evidence supports the following statements:

Dr Orr similarly summarised his view that the evidence from the literature and from Mrs Sayers' medical records would support the following statements:

I was impressed by the evidence given both by Dr Orr and by Dr Bird and they were able to reach a large measure of agreement on the major points. There was little real difference between them as to the diagnosis of Mrs Sayers’ condition, that is that she had a moderate depressive episode in August 2002.

It is also common ground between Dr Orr and Dr Bird that Mrs Sayers had a predisposition to recurrence of depressive episodes because of genetic factors (family history), personality factors (such as her tendency to set herself high standards and her vulnerability in situations characterised by a sense of helplessness), past history of depressive episodes and psychosocial factors.

In this case, the impact of psychosocial factors is an area where Dr Orr and Dr Bird differ. Dr Orr believes that stresses at work outweighed family and other stresses. On the other hand, Dr Bird believes that, whilst various stresses were relevant, Mrs Sayers was at high risk of developing depression in any event because of her past medical record. Where, as here, there was a difference in opinion, I have preferred the views of Dr Bird. Dr Orr had the disadvantage of coming to his initial views without knowing of the medical history of Mrs Sayers. Whilst he later became aware of it, I consider that his initial diagnosis affected his view of the matter. On the other hand, Dr Bird’s views were properly informed. In answering questions I also found his answers more persuasive and his explanations more complete.

They agree, though, that stresses at work, whether in response to actual or perceived workload factors and interpersonal difficulties with her line manager, are likely to have contributed to the development of Mrs Sayers' depressive symptoms in 2000, 2001 and 2002. As I mention below, I have come to the conclusion that it is the development of the symptoms in 2002 which are of concern. I therefore have considered what “workload factors” and “interpersonal difficulties” arose at that time.

They are also agreed that it is generally accepted in Psychiatry thata past history of depressive symptoms and the presence of independent life events in the six months preceding an episode are two powerful predictors of relapse. This has some importance when considering causation.

The pleaded case at paragraph 15 of the Re-Re-Amended Particulars of Claim is that Mrs Sayers developed a depressive disorder; that she first consulted her General Practitioner regarding stress she was experiencing at work in July 2000; that she was prescribed anti-depressant medication by her General Practitioner and that she was able to continue at work until August 2002 when she was initially signed off sick from work with a throat infection but was unable to return because of her depressive disorder. In paragraph 19 of the Re-Re-Amended Particulars of Claim, it is pleaded that Mrs Sayers has been diagnosed as suffering from a depressive disorder of moderate severity with somatic symptoms and that this has been caused by her excessive and unmanageable workload and Graham Wrycroft’s lack of support and attitude and behaviour towards her.

Mrs Sayers’ medical history and the psychiatric evidence do not, in my judgment, support the gradual development of a depressive disorder which manifested itself in 2002. Rather, the psychiatrists have identified Mrs Sayers as a person who has a predisposition to the recurrence of depressive episodes and who suffered depressive episodes in 2000, 2001 and 2002, with the episodes in 2000 and 2002 being likely to be of moderate severity.

It is clear from the pleading that the claim is in respect of the depressive episode of moderate severity suffered by Mrs Sayers in 2002 and I am therefore concerned with determining the cause of that episode. It is common ground between the experts that in psychiatry past history of depressive symptoms and the presence of independent life events in the six months preceding an episode are two powerful predictors of relapse.

In this case, given the predisposition which Mrs Sayers had to the recurrence of depressive episodes, I consider that in terms of causation, it is the independent life events in the months leading up to August 2002 which are likely to be the events that had the relevant potency in causing Mrs Sayers’ depressive episode in August 2002, and matters which occurred in 1998 to 2001 are likely to have been background and not causative.

I consider that if Mrs Sayers had wished to make claims in respect of the depressive episodes in 2000 and 2001, as seems to be suggested in the latest submissions, there would need to be an amendment to her case and any loss arising from those episodes would need to be pleaded. In particular, I do not consider that the episode in 2002 was caused by the episodes in 2001 or 2000. Rather all the episodes were reflective of Mrs Sayers’ underlying predisposition. The pleading obviously was based on the position as initially understood by Dr Orr and before he became aware of Mrs Sayers’ history.

On that basis, I turn to the first question in this case: the cause of Mrs Sayers’ depressive episode in 2002.

There can be no doubt, in the light of the expert psychiatric evidence, that a cause of Mrs Sayers’ depressive episode in 2002 was her predisposition given her past history of depressive symptoms. The experts also agree that stresses at work, whether in response to actual or perceived workload factors and interpersonal difficulties with her line manager, are likely to have contributed to the development of Mrs Sayers' depressive symptoms in 2002.

In the months leading up to 19 August 2002, two particular things happened which need to be considered in the context of the depressive episode in 2002. First, Mrs Sayers was not happy with her changing role in the re-organised Council. Secondly, she failed to obtain the post at Milton Keynes.

As part of the re-organisation to align the Council’s Social Services Department with the Primary Care Trusts (“PCTs”), there had to be restructured posts for the Operation Managers. Mrs Sayers was involved in the choices in consultation with Mrs Smythe and Mr Bodmer. As Mrs Sayers explains it was agreed between them that they should each take responsibility for the PCT closest to their homes: Mrs Smythe lived in Market Harborough and it was agreed that she should take Huntingdon; Mr Bodmer took Cambridge City and Mrs Sayers took South Cambridgeshire. There was also a new post with responsibility for Fenland PCT. Mrs Sayers says that, with the exception of the need for her to have responsibility for Occupational Therapy, she was reasonably pleased that her skills had been recognised and would be utilised and accepted South Cambridgeshire and the other areas of responsibility which Mr Wrycroft had offered her.

There were, however, three matters which Mrs Sayers says were subsequent changes to the role given to her. First, at a meeting with Mr Wrycroft and Ms Hind, the Chief Executive of South Cambridgeshire PCT, on 15 May 2002 Mr Wrycroft informed them that Mrs Sayers’ role would not include children’s work. Secondly, on 26 June 2002 Mrs Sayers received an email from Mr Wrycroft instructing her to transfer the Hinchingbrooke Hospital team to Ms Simpson.

Mrs Sayers says that her new role was now less and less attractive to her as it moved her further away from what she had been promised. She says that whilst her workload had been a long standing issue, particularly the imbalance as compared to her colleagues, by the same token as an experienced and competent professional, she still wanted work that reflected her interest, qualifications and experience. She says that she was rapidly losing confidence in the Council’s Social Services Department to meet her professional needs.

A third change became apparent on 12 August 2002. On that date there was a meeting with Ms Taylor, the Assistant Director for Sensory Services/Director of Health and Ms Black the Health Director for South Cambridgeshire at which Ms Taylor told Mrs Sayers that the operational management for a new hospital discharge team at Addenbrooke’s Hospital would be placed with Cambridge City PCT. Mrs Sayers was not aware of this and this caused embarrassment at the meeting and concern for Mrs Sayers.

Mrs Sayers also observes in her statement that, on reflection, she realised that the transition to the new structure was extremely difficult for her and that she was unable to leave ongoing work and pick up her new responsibilities. This, she says, left staff unsupported adding to her stress levels because this was not the way she would have chosen to operate as a manager. She states that the Operations Managers agreed that the transition to the new structure felt chaotic and out of control with different leadership and direction.

Ms Powell refers to the effect of the restructuring as being a “dwindling down” of Mrs Sayers’ job from about 2002 to a single post in one locality. She says “In some ways she had been demoted. This was something which had been going on from about 4-6 months beforehand and Lois I believe became more depressed since that time came nearer.” She did not wish to sit in a Primary Care Team when all the work which she had carried out during the previous 2–3 years concerned countywide policies. She says that it was the “anticipation of what was to come that she found it difficult to cope with.”

The second thing that happened at this stage was Mrs Sayers’ application for the post of Head of Adult Services at Milton Keynes. Although Mrs Sayers had previously worked for the person who was now Director at Milton Keynes, she says that she knew that she would need to demonstrate a substantial professional development since she last worked together.

As I have said above, Mr Wrycoft was supportive of the application and on 19 June 2002 he and Mrs Sayers discussed the presentation which Mrs Sayers was to make at the interview. On 26 June 2002 in an email to her he said: “I hope the interviews went well - let me know how you got on.”

Mrs Sayers attended the interview process on 25 and 26 June 2002 and says that she believed that she did very well and was supported in this view by informal feedback. She gave permission for the Head of Human Resources to contact Mr Wrycroft and was told that she would hear by the end of the week. She then provided Mr Wrycroft’s telephone number and availability to someone at Milton Keynes on 27 June 2002. Having heard nothing Mrs Sayers contacted Mr Wrycroft on Friday 28 June 2002. He said that he had not spoken to anyone at Milton Keynes but had received a “tick box” form which he had filled in. When asked by Mrs Sayers whether he had responded positively, Mrs Sayers says that Mr Wrycroft was evasive and not positive or reassuring. When Mr Wrycoft told her what he was proposing to say to the person at Milton Keynes, Mrs Sayers became upset. On the evidence, it seems that this was a draft reference which Mr Wrycroft was sending to Mrs Railton who would send the final reference. In the end, no formal reference was, in fact, sent.

Mrs Sayers recalls Mr Wrycroft obtaining the reference during the telephone conversation and reading extracts to her over the phone. Mrs Sayers says that Mr Wrycroft disclosed content which appeared to be saying that she was a good budget manager and supported her staff well, but lacked strategic and member experience and there were “concerns” about her relationships in working with Health. Mrs Sayers says that this latter aspect was a key area in the post that she had applied for. Obviously, as she says, she was disappointed and upset by this.

Following that conversation, Mrs Sayers contacted Mrs Railton’s PA saying that she would like to discuss the reference before it was sent or Mrs Railton spoke to the Director of Social Services at Milton Keynes.

In fact Mrs Railton did not send a reference. In an email exchange on 1 July 2002 Mrs Railton said that as far as she knew a written reference had not been sent but she and Mr Wrycroft had discussed the reference. She said that Mr Wrycroft had spoken to Milton Keynes on Friday 28 June 2002 and that she had also spoken with them but this was after they had reached their decision. She said that she was not proposing to add anything to what Mr Wrycoft had already said.

Mrs Sayers also obtained a reference from Mr David Elliott. Assistant Director of Risk Management and Audit at the Council, who from another email exchange of 1 July 2002 said his reference was positive although he did not keep a copy.

Mr Wrycroft deals with Mrs Sayers’ application for the post at Milton Keynes in his second witness statement. On a date he cannot now recall, he received a form from the Social Services Department at Milton Keynes seeking a reference for Mrs Sayers. He cannot now recall whether the form was of the tick box type or with questions and answers but, in any event, he passed the form to Mrs Railton with a few comments. I find that this is the document which he read out to Mrs Sayers on 28 June 2002. He says that Mrs Railton agreed to complete the form and submit it to Milton Keynes.

Subsequently Mr Wrycroft received a telephone call from the Director of Social Services at Milton Keynes. As Mrs Railton was not in the office on that day and the Director was very insistent about wanting to discuss the matter that day, he decided to take the call. The Director put some specific questions to him and he recalls giving his general impression as to how Mrs Sayers worked. He mentioned that she was very supportive of her staff, hardworking and had high professional standards; he said her staff were very loyal. He says that he was also asked how well Mrs Sayers worked with outside agencies and stated that she was less confident in this area but gaining experience, indicating that she was beginning to work with Health more and citing her work with the Fenland PCT.

At about 5:00pm on 28 June 2002 Mrs Sayers received a telephone call from Milton Keynes informing her that she was not being offered the post. Mrs Sayers says that she was advised that the choice had lain between herself and one other candidate and that the other person had been chosen apparently because of his potential “fit” with the organisation and “style”. She states that it was confirmed that she had done very well and that the decision had been a tough one. She says that she also understood that they had spoken directly with Mr Wrycroft.

It is clear that Mrs Sayers was disappointed and upset at not being offered the post at Milton Keynes and that she blamed that failure, at least in part, on Mr Wrycroft’s failure to provide a positive reference to the Director of Social Services at Milton Keynes during the telephone call.

It seems that Mr Wrycroft went on holiday shortly after 28 June 2002 and the next supervision session with Mrs Sayers was on 17 July 2002. Mrs Sayers sent an email to Mr Wrycroft on 10 July 2002 in advance of that supervision in these terms:

“Just to let you know that I didn’t get the job in Milton Keynes but will continue to apply and so would find it useful to discuss the reference you read to me and the application process so that I can learn for next time.

What I’m asking for from you for our next supervision session on 13/8/02 is a copy of the reference, discussion about your conversation with Milton Keynes, and it’s timing in the process. Milton Keynes have written to me and asked me to arrange to go and receive feedback.”

At that supervision between Mrs Sayers and Mr Wrycroft on 17 July 2002 the post at Milton Keynes was discussed and Mr Wrycroft’s note states: “Discussed Interview. Agreed areas for developing are around shaping and influencing and working outside organisational boundaries, agreed positive experience and will continue to look [for] opportunities.”

As I have said, I find that it was the next supervision session with Mr Wrycroft at 1:00pm on 13 August 2002 which was described by Mrs Sayers as “a complete disaster” from her point of view. From Mrs Sayers’ evidence it is clear that there was discussion of the reference provided by Mr Wrycroft to Milton Keynes and this led on to a more general discussion of Mrs Sayers’ ability and experience. Mrs Sayers refers to Mr Wrycroft’s comments that she found it difficult to manage her workload or that her workload was unmanageable. She comments “It became clear to me as time went on that this was the justification he would seek to use for denying me the opportunities within the Department that I should have been given particularly throughout the planning of the recent structuring as part of the integration process.”

Ms Powell refers to Mrs Sayers’ application to Milton Keynes in the context of the dwindling down of Mrs Sayers’ job from April 2002 and the perception of this being demotion.

As a result, I consider that Mrs Sayers’ ill health in August 2002 was brought about by two main factors in addition to her underlying disposition. First, because the re-organisation of the Council’s Social Services Department did give Mrs Sayers a reduced workload after April 2002, her long term perception was that, in effect, she had been demoted from a countywide post to one which was limited to a locality. She became concerned that her responsibilities within that post were no longer those she wanted. As she expressed the position, she was rapidly losing confidence in the Council’s Social Services Department to meet her professional needs.

Undoubtedly a second cause for the illness, linked to the first, was Mrs Sayers’ failure to be appointed to the post at Milton Keynes which was particularly important given those concerns. Mrs Sayers clearly saw this appointment as being a means of overcoming what she perceived to be the less attractive post for the Council and also, I have no doubt, to provide a positive recognition of her abilities. In addition, the supervision session with Mr Wrycroft on 13 August 2002 at which there was the discussion of the reference for the Milton Keynes post clearly was what Mrs Sayers considered to be a “complete disaster”. This, too, was causative and derived from her failure to be offered the post in Milton Keynes.

In terms of overwork, the position is more difficult. I have found that Mrs Sayers was required to work long hours of 50 to 60 hours per week from 2000 and into 2002. By April 2002 the new structure was coming into place with her appointment to South Cambridgeshire and tasks were being taken away from her, therefore her workload was being reduced. She was obviously finding the transition to the new structure extremely difficult, as she herself says. I find that she was still working long hours but in her April 2002 appraisal she referred to working hard to reduce her hours and being able “to further reduce my hours”. Clearly by then there had been some reduction in hours. Also, as Ms Powell said, the meetings of her former Team Leaders only continued until June 2002 and in April 2002 the Managers went into their own localities and Mrs Sayers did not manage them any more. This resulted in a reduction of workload. Whilst it is clear that Mrs Sayers found the transition difficult and was kept busy, her hours were reducing and it is likely that from April 2002 those hours did not significantly exceed 50 hours per week.

By April 2002, as Ms Powell states the concerns which Mrs Sayers had were related to the changed and reduced workload. It was, as I find, these workload factors and not overwork which regrettably led to Mrs Sayers’ illness in August 2002. By then, I find that the stresses which had been caused by overwork in her post from up to April 2002 were not causative of her condition. I therefore consider that overwork did not cause Mrs Sayers illness in August 2002.

Whilst I accept that there were difficulties in her relationship with Mr Wrycroft which led up to the formal grievance being submitted on about 17 July 2000, I find that the approach adopted by the Council to that grievance overcame the immediate concerns which Mrs Sayers had as to Mr Wrycroft’s manner and the fact that he was undermining and belittling her efforts. By early 2002 those concerns had, I find, to all intents and purposes, disappeared.

I regret that I am unable to accept Mrs Sayers’ evidence that her working relations with Mr Wrycroft never improved. The 360° appraisal form completed by Mrs Sayers in April 2002 was positive. Whilst this may have been influenced by advice as to how Mrs Sayers was to manage her relationship with Mr Wrycroft and what she had discussed with her coach, I find that this did reflect the true position. There had been the meetings with Mr Wrycroft which Mrs Sayers considered to be positive, such as the Adult Management meetings, including the one on 12 February 2002 to which Mrs Sayers refers in her statement. There was also the Adult Management team away-day on 18 June 2002 when Mr Wrycoft gave Mrs Sayers encouragement in her application for the post at Milton Keynes and the follow-up discussion on 19 June 2002 in relation to her presentation at the interview for that job.

However, the reference for Milton Keynes appears to have led to a deterioration in the relationship between Mrs Sayers and Mr Wrycroft. The conversation with Mr Wrycroft on 28 June 2002 in which Mr Wrycroft disclosed the content of the reference left Mrs Sayers disappointed and upset.

On Mr Wrycroft’s return from holiday there was the further supervision session on 17 July 2002. This occurred on the day before Mrs Sayers went on annual leave and after Mrs Sayers had failed in her application for the job at Milton Keynes and it appears that this session passed satisfactorily.

It was the next supervision session on 13 August 2002, after Mrs Sayers’ return from annual leave, which led to further conflict. I have no doubt that the outcome of this supervision session was a further cause of Mrs Sayers’ illness. In essence, it brought together in her mind the failure to obtain the Milton Keynes post which she blamed on Mr Wrycroft’s reference and the perception that she was being denied opportunities which she felt she should have been given by Mr Wrycroft in the restructured department.

The Claimant also pleads that the Council were aware that she felt unsupported by Mr Wrycroft in dealing with her workload and the other pressures of the job and that she complained that he constantly undermined her and adopted an unacceptably aggressive management style towards her. Whilst I accept that there were events in and before July 2000 which show that Mr Wrycroft’s attitude to Mrs Sayers was unacceptable in these respects, I do not accept than those matters were causative of the illness in 2002. Otherwise, I do not find that there is any substance in the allegations. I deal below with the allegation in relation to the supervision session on 13 August 2002.

I should add, in this context, that I find that the allegations of bullying and harassment, which originally formed the basis of a cause of action under the Protection from Harassment Act 1977, have not been made out on the evidence. Sensibly that basis of putting the case was abandoned.

In the light of my findings on causation of the depressive episode in 2002, it is necessary to consider the various ways in which Mrs. Sayers’s case is pleaded. I consider first the claim for breach of the common law duty.

Liability at common law in respect of stress-related personal injuries has been the subject of consideration in a number of comparatively recent decisions.

In Hatton v. Sutherland[2002] ICR 613the Court of Appeal considered appeals in four cases where the claimant was alleging that psychiatric injury had been caused by work-related or occupational stress. In giving the judgment of the Court, Hale LJ (as she then was) summarised at paragraph 43 a number of practical propositions in relation to such cases.

In proposition (1), she emphasised that the ordinary principles of employer’s liability apply to these cases. In propositions (2) to (7) she dealt with the threshold question of whether this kind of harm to this particular employee was reasonably foreseeable. Propositions (8) to (13) dealt with the issue of whether the employer was in breach of duty. At propositions (14) to (16), she considered questions of causation and damages.

One of the four cases in Hatton subsequently went on appeal to the House of Lords in Barber v. Somerset County Council [2004] 1 WLR 1089 and the appeal was allowed. Lord Walker of Gestlingthorpe, with whom the majority of the House agreed (Lord Scott of Foscote dissented), considered what was said by Hale LJ at paragraph 29 of Hatton and summarised in propositions (3) and (6). He stated:

“This is, I think, useful practical guidance, but it must be read as that, and not as having anything like statutory force. Every case will depend on its own facts and the well known statement of Swanwick J in Stokes v. Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783 remains the best statement of principle…”

The issue on that appeal concerned the point at which a school’s duty to take some action was triggered in relation to a teacher, Mr Barber, who suffered moderate or severe depression because of overwork at school following a restructuring. Mr Barber, who had only previously been off work for minor ailments, was absent from school for three weeks in the summer term. When he returned to work, his sickness declaration form stated his illness as “overstressed/depression” and this was counter-signed by Mrs Newton, one of the deputy heads at the school. He then had meetings with the headmistress and the two deputy heads and told them that he could not cope with his workload and that the situation was becoming detrimental to his health. After the summer holidays, he returned to work and suffered from depression and was unable to continue working.

The judge found that the response by the headmistress and the deputy heads was inadequate given the history of overwork, the time off work for stress and the matters stated by him at the meetings. The Court of Appeal attached importance to the fact that the summer holidays had intervened “which are usually a source of relaxation and recuperation for hard-pressed teachers” and found that the school might have had a duty had Mr Barber told the school that things had not improved in the holidays. In the House of Lords, Lord Walker of Gestlingthorpe said at para 67:

“What the Court of Appeal failed to give adequate weight to was the fact that Mr Barber, an experienced and conscientious teacher, had been off work for three weeks… with no physical ailment or injury. His absence was certified by his doctor to be due to stress and depression. The senior management team should have made inquiries about his problems and seen what they could do to ease them, in consultation with officials at the county council's education department, instead of brushing him off unsympathetically (as Mrs Hayward and Mrs Newton did) or sympathising but simply telling him to prioritise his work (as Mr Gill did).”

The issue of the impact of the decision of the House of Lords in Barber on the propositions in Hatton was subsequently considered by the Court of Appeal in a number of appeals in Hartman v. South Essex Mental Health Trust[2005] IRLR 293. Delivering the judgment of the Court (Lord Phillips MR, Tuckey LJ and Scott Baker LJ) Scott Baker LJ said at paragraph 10:

“We doubt however whether there is any inconsistency between what Swanwick J and Hale LJ were saying. Hale LJ was simply focussing established principle on a new problem. She referred to the "oft-quoted summary of Swanwick J" just three paragraphs later. Lord Walker was not expressing disagreement with anything Hale LJ said but simply sounding a word of caution that no two cases were the same and that Hale LJ's words should not be applied as it were by rote regardless of the facts. Hale LJ was applying established principles to a new type of situation rather than laying down any new principle”

As Simon Brown LJ (as he then was) put it, in Garrett v. Camden London Borough Council [2001] EWHC Civ 395, cited in Hartman at para 2: “Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation:…Unless, however, there is a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability.”

In approaching the question of liability, the court must take account of an employer who is giving “positive thought” to the health and safety of the employees. This follows, in my view, from the statement of general principle by Swanwick J in Stokes v. Guest, Keen and Nettlefold (Bolts & Nuts) Limited[1968] 1 WLR 1776 at 1783, endorsed by Lord Walker. The relevant passage in Stokes was in these terms:

“The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know, where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it, and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does, and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent”

In addition, as stated in proposition (7) in Hatton, “to trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.”

I also accept the submissions on behalf of Mrs Sayers that, as recognised in proposition (1) in Hatton, the general law of foreseeability in Tort applies in this case and that there is no special test of foreseeability in stress cases when analysing whether an injury to a claimant’s health attributable to stress at work was reasonable foreseeable. In particular, the risk has to be real but a small risk may still be regarded as real: Bolton v. Stone [1951] AC 850.

The Claimant also submits and I accept that there is no requirement that an employee must specifically complain that their health is at risk to make the necessary risk foreseeable leading to the employer’s duty to take reasonable steps to avoid or minimise that risk. The Claimant refers to the appeal of Melvilleat paragraphs 126ff of Hartman and to Hone v. Six Continents Retail Ltd [2006] IRLR 49.

In Melville, Mr. Melville worked as a health care worker in a prison and the case concerned an allegation that he had suffered stress related illness because one of his duties had been to recover bodies of prisoners who had committed suicide. Home Office guidance, which was alleged not to have been properly applied in Mr Melville’s case, recognised the need for staff care and support arrangements in such cases. There was a preliminary issue on whether it was reasonably foreseeable that Mr Melville might suffer psychiatric illness. The Court of Appeal rejected a submission that foresight of psychiatric harm to Mr Melville was required rather than to all employees exposed to similar traumatic incidents. In relation to proposition (3) in Hatton derived from paras 23 and 29, the Court of Appeal at para 133 said:

“The guidance recognises that such injury is more difficult to foresee than physical injury. The question of whether the particular employee has shown indications of impending harm to health is a very relevant question when considering a situation where the employer has not in fact foreseen the risk of psychiatric injury and the employee’s workload would not ordinarily carry a foreseeable risk of suchinjury.”

In Hone, a pub manager suffered psychiatric illness caused by overwork. He had no previous history of mental illness or of suffering adversely from stress at work. He had, however, complained about excessive hours and that he was very tired; he had been putting in returns showing that he was working 90 hours on a 7 day a week basis and had been asking for an assistant. The Court of Appeal upheld the finding of foreseeability.

The Council relies on Hatton and, in particular, propositions (2) and (7) as requiring foreseeability of injury to health (as distinct to occupational stress) attributable to stress at work and that the indications of impending harm to health must be plain enough for any reasonable employer to realise that he should do something about it.

The Council also relies on other subsequent Court of Appeal decisions in stress at work cases as being consistent with the Hatton guidelines:

Whilst the decisions in the cases cited both by the Claimant and the Council are illustrations of the application of the decision in Hatton, they are helpful in defining the type of circumstances in which a risk of psychiatric illness or injury is reasonably foreseeable. I therefore turn to the question of foreseeability in this case.

The post of Operations Manager within the Council’s Social Services Department was a difficult and demanding job. Mrs Sayers had successfully been promoted a number of times and was appointed to the post of Operations Manager in 1998. This post became countywide in 1999 and this continued to be the position until the restructuring in 2002.

At no stage during Mrs Sayers’ employment was the Council aware that Mrs Sayers had a history of psychiatric illness. However, as the expert psychiatrists agree, the disclosed medical records show that she was referred to a psychiatrist in 1972, took an overdose in 1973 and was treated for depressive symptoms in 1980, 1989, 1992 and 1997. Dr Bird believes that the episodes in 1989 and 1997 were of moderate severity and those in 1980 and 1992 were of mild severity and that the episode in 1972 may have represented a 'forme fruste' of a depressive episode. Dr Orr felt unable to offer an opinion on each episode but believes that the episode in 1989 was likely to have been moderate in severity. Whatever the severity of those episodes, the experts agree that prior to taking the post of Operations Manager in 1998 Mrs Sayers had a predisposition to the recurrence of depressive episodes.

Understandably, Mrs Sayers did not disclose to the Council that she had suffered from those symptoms. She wanted to pursue a career in Social Services and, as can be seen from the many former colleagues who gave evidence on her behalf, has been highly successful in doing so. In such circumstances, it is clear that she tried to overcome the personal difficulties that resulted from her medical history and did not disclose to the Council either that history or the recurrence of the depressive symptoms in 2000 and 2001, while she was in the post of Operations Manager.

In those circumstances, ought it to have been plain to the Council that Mrs Sayers was at risk of suffering a psychiatric injury caused by her work?

On behalf of Mrs Sayers, it is submitted that the Council should have foreseen the risk of psychiatric illness to her because of both general and specific published material which shows that work related stress may lead to such illness.

First, reliance is placed on the guidance published by the Health and Safety Executive (HSE) in 2001 “Tackling work related stress – a manager’s guide to improving and maintaining employee health and well-being”. That document lists seven risk factors for work-related stress: culture; demands; control; relationships; change; role and support, training and factors unique to the individual.

The Claimant submits that each of those factors were present in this case: the culture of the Council was a “can do” culture; demands were made on Mrs Sayers in terms of work overload; Mrs Sayers had little control over her work; there was a difficult relationship with Mr Wrycoft; the Council’s Social Services Department was going through change in terms of re-organisation; Mrs Sayers’ role was not clearly defined and there were particular factors relating to Mrs Sayers.

The Claimant also relies on the obligation under the Management of Health and Safety at Work Regulations 1999 for an employer to carry out a Risk Assessment. It is submitted that the Council should have carried out a risk assessment because Mrs Sayers was overworking.

The Claimant also refers to the fact that the Council, itself, had issued a Staff Care and Stress Management Handbook in March 1997 and this was updated subsequently. In August 2001, Miss Ann Walsh, the Council’s Staff Counselling Scheme Co-ordinator wrote a memo in which she identified evidence of increased stress within the Council and stated that managers needed to identify stress in those they manage. The Council had a Risk Assessment Form, F4 which under “Workloads & Capabilities” included “Excessive workload” with a potential hazard “Accumulated fatigue and exhaustion, possibly leading to over-stress and poor professional judgement (could affect mental health)”. The precautions/control measures were “Evaluate workloads and review working arrangements. Check working hours records. …Prepare and bring into force a stress management policy. Arrange for counselling services to be available.”

Whilst these documents show an increased awareness, both generally and by the Council, of the risks of work-related stress, they do not, in my judgment, alter the fact that the question which needs to be answered is whether, in the particular circumstances the risk of psychiatric illness to Mrs Sayers was or should have been reasonably foreseeable to the Council. Whilst I accept that a general awareness of the risks of work-related stress may make it more likely that the risk to an individual is foreseeable, I do not consider that the existence of that general awareness by the Council can, in itself, make psychiatric illness due to overwork foreseeable in a particular individual. This is not a case such as that in Melville where the general guidance of the Home Office accepted that there is a high risk caused by dealing with particular situations. Having said that, the existence of such guidance may lead to the conclusion that in a given case the risk to an individual was foreseeable.

I therefore turn to consider whether there was sufficient evidence to make the psychiatric illness suffered by Mrs Sayers reasonably foreseeable to the Council. In particular, it is necessary to review what was known to the Council.

This subject is also related to overwork which I consider below. Mrs Sayers’ contract of employment referred to the fact that her hours of work would “normally be 37 hours per week. At times it will be necessary for you to work additional hours outside the core hours of the working day without extra pay due to the seniority of your post. The Council expects its senior staff to recognise the exigencies of the service.”

As I set out below, I have come to the conclusion that the Working Time Regulations did apply to Mrs Sayers’ employment. This meant that, unless she opted out, Mrs Sayers should not have been working more than 48 hours per week. As I have found, until April 2002 Mrs Sayers was generally working 50 to 60 hours per week, she was therefore generally working in excess of the 37 hours in her contract of employment and between 2 and 12 hours in excess of the limit under the Working Time Regulations. After April 2002 Mrs Sayers’ hours reduced so that they were not significantly in excess of 50 hours per week but were still a few hours in excess of the limit under the Regulations.

Mrs Sayers did not complete working time records after July 2000. This I find was because, as Mrs Sayers recalls and I accept, she was told not to complete those records by Mrs Railton. In any event, the fact that she was working long hours was or should have been evident to the Council because of the time when she was arriving at and leaving the office and the time at which she was sending emails from home.

I therefore find that the Council was or should have been aware until April 2002 that Mrs Sayers was working between 50 and 60 hours per week and after April 2002 hours not significantly in excess of 50 hours per week.

As I have found, the workload which was given to Mrs Sayers was difficult and demanding. She was an Operations Manager who in 2001 had to manage a large number of Team and Administrative Managers, had to attend many meetings and carry out a great deal of project work. Both Mrs Railton and Mr Wrycroft accepted that it was Mrs Sayers’ perception that she was overworked. It was a “constant refrain”.

I consider that, as confirmed by the working hours, Mrs Sayers was overworked in the sense that her workload could not be completed by her in the 37 core hours that applied to her post and until April 2002 generally required between 50 and 60 hours per week. I also attach importance to the fact that Mrs Sayers was saying that she was overworked and it was generally perceived that she did not maintain a good work/life balance.

I find therefore that the Council was or should have been aware that Mrs Sayers was overworked.

The Claimant relies on a number of signs from Mrs Sayers herself which should have put the Council on notice of a real risk of psychiatric illness.

In her statement Mrs Sayers says that she broke down in tears after the appraisal interview with Mr Wrycoft in 2000. She says that following the meeting, she was so distressed that she went to the office of her colleague, Mr Bodmer, and broke down in tears. This was the catalyst for the grievance procedure which Mrs Sayers then started and in which she mentioned “personal health” as one of the reasons. Mr Bodmer recalls this incident. He said that she came into his office and looked awful. She said that Mr Wrycroft had been critical of her. She remained in his office and joined a management meeting later. He said she was quiet throughout the meeting and looked upset. He says that it would not have been appropriate for him to discuss Mrs Sayers with Mr Wrycoft. He comments that Mrs Sayers was quite capable of raising concerns herself with Mr Wrycroft, given her seniority within the organisation. He did not recall seeing Mrs Sayers in tears on other occasions. He says that she told him that Mr Wrycroft had been critical of her.

Mrs Sayers’ concerns in respect of her working relationship with Mr Wrycroft following the appraisal interview in 2000 led to her commencing the grievance procedure and, in part, to representations being made to Mrs Railton by other members of staff. It is clear that Mrs Sayers was upset by the grievance and I accept her evidence that she phoned Liz Railton, in tears, whilst off work, although Mrs Railton could not recall it. The informal resolution by Mrs Railton both of the grievance and the representations by staff led to a marked improvement in her relationship with Mr Wrycroft, particularly in 2001 and up to the middle of 2002.

Mr Wrycroft recalls that Mrs Sayers had been in tears on three particular occasions. Once after a meeting with Mrs Railton, probably a meeting referred to by Ms Goodall in late 2001, where Mrs Sayers had been criticised and when she came to Mr Wrycoft to discuss and deal with the matter. The second occasion was when she failed to obtain the post at Milton Keynes and was blaming him for that situation. Mr Wrycroft also refers to a third occasion when Mrs Sayers was in tears during a supervision when she had a virus.

It is evident that it was in the context of Mrs Sayers’ application for the post at Milton Keynes that her relationship with Mr Wrycroft deteriorated. There was, first of all, the telephone discussion on 28 June 2002 with Mr Wrycroft over the reference for that post. Mrs Sayers says that in response to her question whether he had responded positively, Mr Wrycroft was evasive and certainly not positive or reassuring in any way. Mrs Sayers then became upset. This was, I find, a telephone call made during a supervision session which Mrs Sayers was holding with Ms Saville who confirmed that Mrs Sayers upset and “very weepy”.

It was on 13 August 2002 that Mrs Sayers became distressed during the supervision with Mr Wrycroft when there was a discussion about Mrs Sayers’ workload, management and experience in relation to the application to Milton Keynes. Mr Wrycoft recollection that Mrs Sayers had become upset when she did not get the post at Milton Keynes, must, I find, be a reference to this occasion.

So far as Mrs Sayers’ relationship with others was concerned, there is reference in the evidence to three incidents concerning Mrs Railton. The first was a meeting between Mrs Sayers and Mrs Railton on 29 November 2001 when Mrs Railton had said that she saw Mrs Sayers as “not happy” in the organisation and said that perhaps she should look for a job in the voluntary sector. Mrs Sayers says that “I asked that I should not be banished into the voluntary sector and reassured her that I was very committed to my job and enjoyed it.” Subsequently, in the next supervision with Mr Wrycroft, he asked whether Mrs Sayers was “okay” about this meeting with Mrs Railton. Mrs Sayers says that she did not welcome reference to this matter and became tearful and upset. She says that she informed Mr Wrycroft that she felt tired and unwell. This, I find, is the third occasion referred to by Mr Wrycroft.

The second incident concerned a meeting to discuss the contact centre in late 2001. The meeting was attended by a number of people, including Mrs Sayers, Mrs Railton, Ms Tompkins and Ms Goodall. Mrs Railton was late because of a mis-communication. Mrs Railton attempted to sell the advantages of the contact centre but the Team Managers were not convinced and Mrs Sayers found herself having to arbitrate between the two sides. Ms Tompkins and Ms Goodall remember Mrs Sayers suddenly becoming distraught and crying after the end of the meeting. She then talked about various matters concerning Mrs Railton, including the meeting on 29 November 2001. Ms Tompkins says that afterwards she believes that she and Ms Goodall spoke about the matter but that “ it was clear that Lois was not in any way whatsoever letting us have this information because she wished us to take it anywhere.”

There was, it seems, a third incident in another meeting in early 2002 about the contact centre which involved outside representatives when Mrs Railton criticised Mrs Sayers. The meeting was attended by Mr Newman, an outside consultant. He recalls that something was not going well in Mrs Sayers’ area of responsibility and there was a one way conversation from Mrs Railton which he considered to have been unprofessional, inappropriate and humiliating for Mrs Sayers and embarrassing for him. Ms Goodall recalls Mr Newman saying to her, after the meeting, that “Liz wiped the floor with her” although he could not recall this.

Mr Wrycroft’s recollection of Mrs Sayers being upset following a meeting with Mrs Railton concerning the contact centre, when Mrs Railton had criticised Mrs Sayers, is evidently a reference to one of these meetings.

The evidence shows that Mrs Sayers became tearful and upset on a few occasions between 2000 and 2002. On each occasion it arose because of a particular incident. In her witness statement Mrs Sayers says that she was often tearful and upset. If that were so, I would have expected others to have noticed it but they did not, except for the occasions set out above. Alternatively, Mrs Sayers kept this to herself. So far as the evidence of what those working with her knew, I find that they were aware of isolated incidents over a period of two years and that the incidents were explicable because of such matters as the difficult relationship with Mr Wrycroft in July 2000, the criticism by Mrs Railton and the failure to obtain the post at Milton Keynes. They were all explicable on that basis and not as signs of an underlying sign of psychiatric illness.

In terms of the Council’s knowledge that Mrs Sayers was seeing a doctor or taking medication, Mr Wrycroft’s only recollection was that she had told him once that she was on medication but he did not know what it was but assumed it was due to life stresses. He said, and I accept, that he was not aware that Mrs Sayers was taking medication for psychiatric illness and was not aware of any psychiatric episodes prior to her illness in 2002. I do not consider that Mr Wrycoft should have been put on notice or that, as suggested by the Claimant, he should have made further enquiries as to the medication.

So far as other employees are concerned, Ms Powell at paragraph 19 of her witness statement says that “I became aware that Lois had been prescribed medication, which I was given to understand was of an anti-depressant nature.” In cross-examination she said that she had been told by Mrs Sayers that she was taking anti-depressants and that this was quite a while before August 2002. She said that she would not feel free to talk about it; she would keep it to herself and not spread it around because, as a manager, Mrs Sayers would not want people to know. Ms Powell also said she did not know whether she was told as a friend or a work colleague and she was not sure how to divorce the two.

From her evidence and the medical records, it is not clear when Ms Powell could have been told this. However, I accept the Council’s submission that the evidence establishes that Mrs Sayers was not on anti-depressants between July 2001 and September 2002. It must therefore have been prior to July 2001.

In her witness statement Ms Welton refers to a conversation with Mrs Sayers after she had taken absence in August 2002. She says in that context: “I was also aware myself that for some time Lois had been taking anti-depressant medication.” She was asked why she had not told others in the Council. She stated that she had used the 360° feedback procedure to describe pressure and as Mrs Sayers was her line manager she did not think it easy for her to go to Mr Wrycroft. She said she could not comment on the timescale and she was not aware either that Mrs Sayers had stopped taking medication or had not taken it for a year before August 2002. Again, it is not clear when Ms Welton became aware of this although it was clearly before July 2001.

I have come to the conclusion that this limited knowledge by two employees that Mrs Sayers was taking medication is not to be equated to knowledge by the Council. That knowledge was possessed by Ms Powell and Ms Welton but was not passed on by them. They kept it to themselves and clearly did not consider it appropriate or necessary to report it to more senior personnel in the Council.

In relation to this aspect the Council referred me to Hartman. In that case, Mrs Hartman had made some disclosure of her previous history of mental ill health to the defendant’s occupational health doctor, who then decided that she was nonetheless fit or employment. The Court of Appeal decided that the bond of confidence between the doctor and the claimant precluded that knowledge being imputed to the defendant.

The Council accepts that in Hartman the Court of Appeal did not consider whether this duty of confidentiality was wider and applied to other situations in which an employee of the defendants knows of the vulnerability of the claimant, but does not pass that information on, there have been other cases where such knowledge has been considered.

In this context, I was again referred to Croft, in which the Court of Appeal considered a case where the judge’s findings as to knowledge were challenged. Potter LJ held that the evidence did not support the findings of knowledge of the relevant personnel. As a result, when they attended a meeting of the Council, the Council could not have derived any knowledge at that meeting. Whilst the decision was based on the facts, at paragraph 70 of the judgment of the Court of Appeal treated as relevant the fact that the chairman of the meeting had no knowledge. I was also referred to Barber, in which it was said that the claimant’s sister, who knew of her brother’s true mental state, was employed as a teacher at the same school.

The Council submits that imputed knowledge is of two types. The first is knowledge which it is the employer’s responsibility to obtain, such as information about the danger caused by a particular substance. This type of imputed knowledge, it submits, is recognised in such cases as Stokes v. Guest Keen and Nettlefold. The second type of knowledge is information held by an employee which is imputed to the employer, such as a complaint to the foreman about some danger in a factory.

Otherwise, the Council submits that knowledge passed by one employee to another in confidence does not come within the category of knowledge which an employee is liable to pass on to the employer. I accept that submission. I bear in mind that the issue I am considering is whether it was plain to the Council that Mrs Sayers was at risk of suffering a psychiatric injury. In that context it seems to me that the knowledge of an individual which is not communicated to the higher management but is treated as information held confidentially by that employee cannot be knowledge, actual or imputed, of the Council for the purpose of determining whether the indications are plain enough for the Council, as a reasonable employer, to realise that it should do something about it.

Following the unsatisfactory appraisal interview in July 2000, Mrs Sayers was off work and saw her doctor. Although the medical notes state that she saw the doctor for stress related problems, the medical certificate which was produced to the Council at the time on 15 July 2000 stated that Mrs Sayers had an upper respiratory tract infection and that produced on 21 July 2000 stated that she had a chest infection. Mrs Sayers stated that she had agreed that the doctor would put that on the medical certificate and it is evident that she did not want Mrs Railton or Mr Wrycroft to know the real reason.

Prior to that, there are medical certificates in March and April 1997 for a chest infection, with an absence from work from, it seems, 21 March to 14 April 1997. On that occasion, too, the doctor’s notes refer to “considering retirement on ill health grounds” and “Some disturbed sleep. Tearful. Stress ++ at work. Impression-depressed. Prescribed Fluoxetine.” Again, that was not shown on the medical certificate.

The next medical certificate was that of 30 August 2002 which, for the first time, stated “anxiety and depression, stress related problems in work.”

In those circumstances, there can be no suggestion that the Council had any knowledge of Mrs Sayers’ previous history of psychiatric illness.

The Claimant also relies on the fact that other employees of the Council had suffered illness as a result of excessive workloads. The evidence of the illnesses suffered by the other employees is limited. I shall refer to them by initials. There are three specific pleaded allegations: Mrs M who suffered a nervous breakdown in 1999; Ms H who was off work in 2001 and Mr B who took ill health retirement.

Mrs M had a husband with Multiple Sclerosis, marital difficulties and a family of young children. Mr Wrycroft said that she had never complained to him or, so far as he knew to others, about her workload. Mr B was coming up to retirement and he suffered a stroke. He then suffered a major mental health breakdown following the stroke and his loss of capacity. There were also considerations of early retirement because he did not wish to work for the mental health trust.

Ms H cared for her son who had ME and had a number of physical health problems. There was a grievance by her in November 2001 against Mr Wrycroft following a period of sick leave with stress and depression which seems, at least in part to have been due to her workload. Mrs Sayers was involved in the grievance procedure and in preparations for Ms H to return to work.

In an email of 14 November 2001 to Mrs Railton in relation to Ms H’s grievance, Mrs Sayers said:

“What amazed me was that [Ms H’s] increasing and evident ill health did not affect her management of the work, conversely, she became obsessive about it to the point of aggression when challenged.

There are many many more things I could say about[Ms H’s] experiences and this situation, some of which have touched my own professional and personal life irreversibly too. I failed to adequately communicate the seriousness of the situation previously when the opportunity was there. I have responded to you in writing in relation to the specific issues you have chosen to raise but the problem is much wider and deeper than just this area.”

As pointed out in Hatton,psychiatric illness is likely to be harder to foresee than physical injury. Factors which may be relevant to the foreseeability of psychiatric illness are the nature and extent of the work being done by the employee and signs of impending harm to health (not signs of stress) from the employee. Such signs may include frequent or prolonged absences from work for physical or psychological complaints which are uncharacteristic for the person concerned, but there must be good reason to think that the underlying cause is occupational stress rather than other factors. It could arise from the nature of the employee's work or from complaints made about it by the employee or from warnings given by the employee or others around him.Unless an employer knows of some particular problem or vulnerability, that employer is usually entitled to assume that his employee is up to the normal pressures of the job and is entitled to take what he is told by or on behalf of the employee at face value.

In this case, the following matters were known to the Council. First, that Mrs Sayers was complaining of being overworked and was working long hours of 50 to 60 hours per week. Secondly, that on certain occasions in 2000, 2001 and 2002 Mrs Sayers had become tearful and upset. Thirdly, that Mrs Sayers had had limited absences from work for illness. Fourthly, Mr Wrycroft had been told once by Mrs Sayers that she was on medication but he did not know what it was but assumed it was due to life stresses. Fifthly, that some other employees had suffered psychiatric illness.

I accept that I have to assess this knowledge against both general awareness and the Council’s awareness of the risks of illness arising from work related stress. On that basis, I do not consider that these matters, either individually or in combination, made it foreseeable that Mrs Sayers would suffer psychiatric illness caused by the stresses imposed on her by her employment by the Council.

In relation to overwork and long working hours, I do not consider that this alone could make the illness foreseeable to the Council. Different people have different capacities for the amount of work they take on and the number of hours they work. Mrs Sayers was a successful Operations Manager and although her very heavy workload was a “constant refrain”, she had been promoted to a demanding and difficult post.

As Lord Phillips MR observed in Bonsor, happily most employees are sufficiently robust to withstand a heavy workload. Given Mrs Sayers’ successful career and promotion, I do not consider that there were any signs that would indicate a vulnerability to psychiatric illness caused by that workload.

This is not a case such as Hone where the employee worked for 90 hours a week on a 7 day basis without an assistant. In Hone, the Court of Appeal considered an argument that a failure to comply with the Working Time Regulations was relevant on the question of reasonable foreseeability. In that case Dyson L.J. (with whom Lord Phillips MR and Wall L.J. agreed) said: “The significance of the Regulations is that, where an employee refuses to give his consent, an employer may not require the employee to work more than 48 hours per week. The plain and obvious purpose of the Regulations is to protect the welfare and health of employees.” Whilst accepting that principle, I do not consider that a period of 2 to 12 hours a day, with regular breaks at evenings and weekends, time off in lieu and holidays, made the illness suffered by Mrs Sayers reasonably foreseeable. In Hone, the Court of Appeal considered that it should not interfere with the judge’s assessment of reasonable foreseeability, but Lord Phillips MR indicated that the matters relied on, which were much stronger than in this case, “were far from the most compelling indications that Mr Hone was at risk of succumbing to the stress of his very long hours”.

In relation to Mrs Sayers becoming tearful and upset, I have found that this occurred on limited occasions and that on each occasion there was an explanation for this as a natural reaction to such matters as the difficult relationship with Mr Wrycroft in 2000, the criticism by Mrs Railton and the failure to obtain the post at Milton Keynes. I consider that these occasions would have been seen as the natural reaction of a dedicated person, such as Mrs Sayers, to confrontation, criticisms or a failure to achieve. They would not be seen as being incipient signs of an impending psychiatric illness.

In relation to Mrs Sayers’ absences from work, there was nothing unusual in the limited absences which she had. More importantly, Mrs Sayers deliberately avoided any reference to illnesses being caused by depression or symptoms of psychiatric illness. This makes it difficult for Mrs Sayers to say that the Council should have seen what she, understandably, concealed.

In relation to the fact that Mr Wrycroft had once been told by Mrs Sayers that she was on medication, it is clear that he did not know what it was but assumed it was due to “life stresses”. Mrs Sayers was evidently concerned that the Council should not know of her medical condition. The Council was not aware of the episodes which the experts agree took place in 2000 and 2001 and previously. In such circumstances, I do not consider that a mere reference to medication can make it foreseeable that Mrs Sayers was suffering from or would be suffering from a psychiatric illness.

In relation to the psychiatric illness suffered by the other employees, I do not consider that there is anything in relation to these individuals which could make the illness of Mrs Sayers foreseeable. The fact that a combination of stresses at home and at work can lead to psychiatric illness in individuals does not affect foreseeability of illness to Mrs Sayers. In relation to Ms H Mrs Sayers was directly involved in dealing with her grievance and illness. Nothing was said or done by Mrs Sayers in relation to that which could reasonably have been seen as a sign of Mrs Sayers’ vulnerability. The comments in the email of 14 November 2001, could not possibly amount to any signs that Mrs Sayers was in a similar position. Indeed she expresses amazement at the position of Ms H when it now seems she was herself in a similar situation.

As the cases of the three individuals show, each individual had a combination of stresses which seems to have led to some degree of psychiatric illness. There is no discernable pattern of particular incidents that make such illness foreseeable to others such as in Melville. There is also nothing to link those situations to the position of Mrs Sayers, particularly given her involvement in the grievance of Ms H.

Whilst I have dealt with the matters individually, I have also considered whether the combined knowledge of all the factors should have put the Council on notice of a real risk of psychiatric illness. Mrs Sayers had been working for the Council for some 9 years when she suffered the episode in 2002. She had applied for and obtained promotions during that time without anything being raised by her as to any psychiatric illness. She had a difficult and demanding job which she performed well. In such circumstances, having reviewed all the matters known to the Council and applying the requirement of “positive thought” and taking account of the awareness of stress related illness, I do not consider that it can be said that it should have been plain to the Council that Mrs Sayers was at risk of suffering a psychiatric injury caused by her work. Rather, I consider that the Council was entitled to assume that Mrs Sayers was up to the normal pressures of her job and had no particular reason to apprehend a danger that psychiatric injury would be caused to her.

Given my conclusions on foreseeability, it is unnecessary for me to consider whether the Council were in breach of a duty to act. However, given the full submissions, I go on to consider what the position would have been had I come to a different conclusion on foreseeability.

The Claimant has pleaded breach of duty in paragraph 16 of the Re-Re-Amended Particulars of Claim. Those breaches may be categorised as follows:

The Claimant submits that the Council failed to take any steps to reduce the risk to Mrs Sayers’ health by reducing her workload. In particular, it is submitted that the Council failed to consider the allocation of work with the Claimant and that this was a breach of duty in the light of the concerns she was raising about her workload.

I accept that the Council’s handling of the workload imposed on Mrs Sayers was inadequate. She raised concerns about the size of her workload at least from 2000 but, apart from suggestions that she should manage her time, there was no proper detailed review of the workload which was being imposed on her until her post was reviewed in the proposed restructuring being considered in 2001.

However, that restructuring and Mrs Sayers’ new position from 1 April 2002 meant that, from 2001, the Council did take steps to reduce the workload on Mrs Sayers. She says in her statement that in supervision after deciding on this new locality model for the organisation of the Operations Managers, Mr Wrycroft repeatedly said that this would also provide for a resolution to her workload issues. She says that Mr Wrycroft had said that her workload was “completely unmanageable” and she refers to this change of attitude compared to what was said in the 2001 appraisal. Mrs Sayers in her 2001/2002 appraisal recognised that the restructuring would lead to a lessening in her workload and further reduction in her hours.

I find that after Mrs Sayers’ post became countywide in 1999, the Council took no proper steps to deal with her workload or reduce her hours of working when it was aware that she was constantly referring to a very heavy workload and working long hours. However, in terms of causation I have found that overwork did not cause her illness in August 2002 and there was no causative potency in the overwork in 2000 or 2001.

In addition, given the findings as to the effect of the reduction in her workload in 2002, even if the Council had acted earlier, it would have found it difficult to reduce her workload without, at the same time, causing the problems that occurred in 2002. In particular, the Fenland PCT was an area which Mrs Sayers originally wished to have removed from her remit. When this was later considered possible, Mrs Sayers wanted to remain involved. Whilst I accept that this was, in part, due to the circumstances at the time, Mrs Sayers was also keen to gain further experience in working with health services, as appears from her interview for the post at Milton Keynes. I perceive that the reduction of Mrs Sayers’ remit in other areas would also have been difficult.

In those circumstances, I find that the steps which were taken in 2001 and 2002 were effective steps belatedly taken, in part, to deal both with Mrs Sayers’ workload and working hours. Therefore, even if overwork had caused her illness in 2002, I consider that the Council properly discharged their duty by the reduction in workload and working hours resulting from the restructuring.

As I have found, there were problems with the relationship between Mr Wrycroft and Mrs Sayers during the period leading up to the grievance in 2000. However, as I have equally found, Mrs Railton took steps to resolve that grievance which effectively dealt with the situation and meant that the relationship between Mrs Sayers and Mr Wrycroft improved so that by 2001 and 2002 there was a good working relationship. In this respect, the Council properly discharged any duty.

The relationship between Mrs Sayers and Mr Wrycroft then deteriorated, first during the 28 June 2002 conversation concerning the reference at Milton Keynes and then particularly during the supervision session on 13 August 2002.

On the first occasion, on 28 June 2002, Mr Wrycroft explained the terms of the draft reference which he was proposing to give. It seems that it was intended to be given by Mrs Railton. Whilst I can understand that Mrs Sayers was disappointed that Mr Wrycroft was not more positive in his reference and about his statement that he had “concerns” about Mrs Sayers’ relationships in working with Health, a key area in the new post, I do not see that this can or does in any way engage a duty which the Council breached.

In relation to the supervision session on 13 August 2002, I find that the catalyst for the problems at that supervision was Mrs Sayers’ failure to obtain the post at Milton Keynes. Mr Wrycoft had, after the conversation on 28 June 2002, provided a reference to the Director at Milton Keynes. In his statement, he summarises the content of the reference. He says: “I mentioned that she was very supportive of her staff, hardworking and had high professional standards. I said her staff were very loyal. I was also asked how well Lois worked with outside agencies. I gave my opinion namely Lois was less confident in this area but gaining experience. I did indicate she was beginning to work with Health more and cited her work with the Fenland Primary Care Trust.” This is generally consistent with what Mrs Sayers recalls was related to her by Mr Wrycroft at the supervision and I find that this accurately reflects the terms of the reference given by Mr Wrycroft over the telephone.

I have considered the terms of that reference and cannot find any criticism in terms of the contents of the reference in that it appears that it expressed reasonable views which were honestly held by Mr Wrycroft.

It is clear that Mrs Sayers was not satisfied with the absence of a written reference but, as Mr Wrycroft explained, no written reference had been given and he provided one over the phone in the absence of Mrs Railton. Mrs Sayers blamed Mr Wrycoft for her failure to obtain the post at Milton Keynes. Mr Wrycroft raised this issue and Mrs Sayers became upset. Mr Wrycroft was clearly defensive about his involvement in the reference. The outcome of the meeting was unsatisfactory and the comment that Mrs Sayers was unmanageable and that Mr Wrycroft could no longer continue to manage her understandably upset her.

However, I do not consider that this engaged a duty by the Council or that it breached any duty. The relationship between Mrs Sayers and Mr Wrycroft was dealt with by the Council when the problems arose in 2000 and I do not consider that there was anything in 2001 or 2002 which could have alerted the Council to the breakdown in their relationship at the supervision. In any event, the Council cannot be and is not in breach of duty merely because of an unsatisfactory situation on 13 August 2002 for which I find both Mrs Sayers and Mr Wrycroft were partly to blame. If there were problems then the grievance procedure could have been implemented. There were, however, no steps that the Council could have taken in advance of the supervision session to deal with the situation. It had, I find, taken effective steps and discharged its duty in relation to the 2000 grievance.

I do not accept that Mr Wrycroft’s attitude to Mrs Sayers after 2000 can be criticised, except at the meeting on 13 August 2002. I do not consider that Mr Wrycroft’s attitude after the grievance 2000 can be described as bullying or otherwise criticised. Mrs Sayers was in a senior post as an Operations Manager and Mr Wrycroft, as Assistant Director, was her line manager. Having observed them when they gave evidence, they clearly have different approaches to management. Mrs Sayers managed her work by being closely involved with her staff and becoming involved in the detail. Mr Wrycroft took a more remote management stance and delegated more detail to his staff. As the development of their relationship after the 2000 grievance shows, they both learnt from each other. I do not consider that there was anything generally that could be critcised in Mr Wrycroft’s attitude and both Mrs Railton and he gave Mrs Sayers support in her work. I reject the allegations made of bullying or other such conduct and whilst Mr Wrycroft’s comments on 13 August 2002 that Mrs Sayers was unmanageable were inapt, I do not consider that it engaged a duty by the Council which it breached.

The Claimant relies on the failure of the Council to carry out a risk assessment or put in place adequate strategies to deal with Mrs Sayers’ position.

I do not see that a risk assessment would have done anything towards preventing Mrs Sayers’ illness in this case. The risk assessment form produced by the Council indicates the matters which might have been assessed. However, the assessment of risk depends on the information available. In this case there is no evidence that Mrs Sayers would have disclosed her previous history of psychiatric illness or any other evidence which would have led to a different conclusion on the foreseeability of a risk than I have found to be the case. The evidence is to the contrary and even Dr Orr was initially unaware of her previous medical history.

The Council had, I find, adequate general strategies for dealing with risks in relation to workplace stress and they employed mentors and coaches to assist employees. Those strategies depend, though, on the needs of Mrs Sayers being assessed and, for the reasons given above, no matter what strategies were implemented, there is no evidence that such strategies or assessment would have led to a different conclusion as to the foreseeability of a risk in this case.

In the circumstances, I do not consider that the Council was in breach of any duty to carry out a risk assessment or conduct any particular strategy in this case which would not, unfortunately, have prevented Mrs Sayers’ illness in August 2002.

The Claimant also criticises the restructuring which took place in 2001/2002. In particular, Mrs Sayers says that she felt that her experience in hospital teams and her interest in doing children’s work was not recognised and there is criticism of the absence of consultation and discussion with Mrs Sayers about her new role.

There was consultation with Mrs Sayers in the run-up to the introduction of the new structure in April 2002. She was actively involved in the choice of the Primary Care Trust area which she and the other Operations Managers were to take on. There was also, as appears from the documents, a good deal of general discussion on the restructuring involving Mrs Sayers, including away-days.

The complaint by the claimant relates, though, essentially to three aspects of her work:

Mrs Sayers states that at a meeting with Mr Wrycroft and Ms Hind, the Chief Executive of South Cambridgeshire PCT, on 15 May 2002 Mr Wrycroft informed them that Mrs Sayers’ role would not include children’s work.

Mr Wrycroft accepts that he had suggested to Mrs Sayers that as she had an interest in children’s services and South Cambridgeshire had strategic lead for children’s services, there might be opportunities in the future to look at that work. He says he made it clear that children’s services were not part of her current remit but would be a development for the future. He says that Mrs Sayers’ role was as Operations Manager for Adult Services and that the position was explained at management team meetings and at away days on 12 February, 25 February and 4 March 2002. Mr Wrycroft says that on 15 May 2002 the meeting with Ms Hinds was to clarify roles not change them.

Having considered the documentation in and after February 2002 relating to Mrs Sayers’ restructured role, I have come to the conclusion that the children’s work was not to form part of her responsibility. I accept that Mr Wrycroft may have held out the future possibility of Mrs Sayers taking on children’s work but there was no commitment in that respect. In such circumstances, the meeting with Ms Hinds merely confirmed the position.

Mrs Sayers states that on 26 June 2002 she received an email from Mr Wrycroft instructing her to transfer the Hinchingbrooke Hospital team to Ms Simpson, the new Operations Manager for Huntingdon and Fenland.

Mr Wrycroft says that he attended a meeting with the Hinchingbrooke Hospital team in Huntingdon in June 2002 at which he explained the need to give consideration for management of that team to pass to the new Operations Manager for Huntingdon and Fenland as national policy suggested a locality integrated approach.

In the email of 26 June 2002 to Mrs Sayers, Mr Wrycroft says that “as set out in previous emails and discussion we will need to transfer line management of the Huntingdon team to Gaynor [Simpson]”.

From the documents it seems that initially in a discussion paper Mrs Sayers was to be the line manager for the Hinchingbrooke Hospital team but that, following further discussion, this was allocated to the Operations Manager in the locality. I do not see that Mrs Sayers can complain about lack of consultation in this respect or a policy to attach the Hinchingbrooke Hospital to the local operations manager.

Mrs Sayers says that on 12 August 2002 there was a meeting with Ms Taylor, the Assistant Director for Sensory Services/Director of Health and Ms Black the Health Director for South Cambridgeshire at which Ms Taylor told Mrs Sayers that the operational management for a new hospital discharge team at Addenbrooke’s Hospital would be placed with Cambridge City PCT. Mrs Sayers says she was not aware of this and this caused embarrassment at the meeting.

The documentation shows that this was a new team and that a possible allocation was to Mrs Sayers. In the event, it seems that the decision to allocate his to the Cambridge City PCT was a decision taken at the higher level and poorly communicated to Mrs Sayers.

In conclusion on this aspect, I consider that the restructuring was evidently complex and required tasks to be re-allocated. However, given the nature of that restructuring and the detailed decisions which had to be made, I do not consider that Mrs Sayers has made out a complaint of a failure to consult or discuss the restructuring. In any event, I do not consider that there was any breach of duty in relation to this. The three matters are all instances of Mrs Sayers’ workload being reduced. Given that the burden of her statements prior to 2002 were that she had too much work, I do not think that the Council can be in breach of duty by reducing that work load in the way they did.

The Claimant relies on the failure to comply with the Working Time Regulations in a number of ways, including as a breach of the common law duty.

As I have found, Mrs Sayers was generally working 50 to 60 hours a week up to April 2002 and therefore was working 2 to 12 hours per week over the statutory period of 48 hours, which, as I set out below, applies to her employment. Given the evidence of a reduction of hours, I have found that after 2002 she was not working significantly in excess of 50 hours a week, at most a few hours over the 48 hour limit.

There was therefore a breach of the Working Time Regulations. I have found above that the workload was reducing and overwork was not a cause of her illness in August 2002. Even if overwork had caused her illness, I consider that the Claimant would have had difficulty showing that the few hours over the 48 limit could be said to be causative.

As I have said, in Hone, the Court of Appeal considered an argument that a failure to comply with the Working Time Regulations was relevant on the question of reasonable foreseeability and upheld the judge’s findings that Mr Hone’s illness was reasonably foreseeable and the employer was in breach of duty because, in such circumstances, the reasonable employer would have engaged an assistant manager.

In this case, I have found that the employer’s knowledge of the working hours of Mrs Sayers, even taking into account the Working Time Regulations, did not make Mrs Sayers’ illness reasonably foreseeable so that the Council had a duty to act. In any event, with the reduction of Mrs Sayers’ workload caused by the restructuring planned from 2001 and implemented from 2002, I consider that the Council would have discharged any duty to Mrs Sayers.

The Claimant also makes a claim based upon breach of the implied term of trust and confidence. It relies on the same matters as being both breaches of the common law duty and breaches of contract.

In the context of psychiatric injury claims, the Court of Appeal has considered the contractual obligation of trust and confidence route in Gogay v. Hertfordshire County Council [2000] IRLR 773. This was a case in which the claimant was a residential care worker who was suspended whilst there was an investigation of child abuse. It was found that there was no case to answer; the child had never disclosed any child abuse or anything that could be construed as abuse. The claimant could not return to work because of clinical depression brought about by the suspension. A finding that the employer was in breach of the implied contractual duty of trust and confidence was upheld on appeal.

Hale LJ after referring to the speeches of Lord Nicholls of Birkenhead and Lord Steyn in Mahmud v. BCCI [1998] AC 20, continued at para. 55:

“Did the authority's conduct in this case amount to a breach of this implied term? The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend the claimant, but to do so by means of a letter which stated that 'the issue to be investigated is an allegation of sexual abuse made by a young person in our care.' Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one's employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was 'reasonable and proper cause' to do this.”

In Mahmud, Lord Nicholls put the requirements of the implied term in this way at 34:

“the bank was under an implied obligation to its employees not to conduct a dishonest or corrupt business. This implied obligation is no more than one particular aspect of the portmanteau, general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages. …

The trust and confidence required in the employment relationship can be undermined by an employer, or indeed an employee, in many different ways. I can see no justification for the law giving the employee a remedy if the unjustified trust-destroying conduct occurs in some ways but refusing a remedy if it occurs in others. The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances.”

Lord Steyn analysed the term in this way in Mahmud at 45:

“It imposes reciprocal duties on the employer and employee. Given that this case is concerned with alleged obligations of an employer I will concentrate on its effect on the position of employers. For convenience I will set out the term again. It is expressed to impose an obligation that the employer shall not,

"without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

The Council therefore submits that the term is in the following terms: that the employer shall not,

without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

The Council submits that there is no breach of that term. The Council further relies on liability in Tort and in contract requiring proof of the same matters in terms of foreseeability. In particular, the Council relies on the summary by the Court of Appeal in Victoria Laundry v. Newman[1949] 2KB 528 of the rule first outlined in Hadley v. Baxendale 9 Exch. 341 in this way:

“In cases of breach of contract the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach.

What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events, by the party who later commits the breach.

For this purpose, knowledge "possessed" is of two kinds; one imputed, the other actual. Everyone, as a reasonable person, is taken to know the "ordinary course of things" and consequently what loss is liable to result from a breach of contract in that ordinary course. This is the subject matter of the "first rule" in Hadley v. Baxendale. But to this knowledge, which a contract-breaker is assumed to possess whether he actually possesses it or not, there may have to be added in a particular case knowledge which he actually possesses, of special circumstances outside the "ordinary course of things," of such a kind that a breach in those special circumstances would be liable to cause more loss. Such a case attracts the operation of the "second rule" so as to make additional loss also recoverable.”

I accept the Council’s formulation of the implied term of trust and confidence which derives from Gogay and Mahmud v. BCCI. On that basis, I do not consider that reliance of that term improves the Claimant’s position in relation to its position under its claim for breach of duty.

As I have set out above, the Council’s relevant action in 2001 and 2002 did reduce the workload and took account of Mrs Sayers’ concerns; the Council did deal effectively with the relationship between Mrs Sayers and Mr Wrycroft and there was no breach in relation to the events of June and August 2002; there was no relevant operative failure to carry out a risk assessment or put in place adequate strategies and the Council was not in breach of its obligation in managing Mrs Sayers’ change of role in 2001/2002. In relation to the failure in relation to the Working Time Regulations, I do not consider that the implied obligation of trust and confidence adds anything given the express term which applied to the contract of employment in this case.

In relation to foreseeability, I accept the Council’s submission that, in order to succeed in a claim for breach of contract, the claimant must establish that the employer had knowledge at the time of the contract which made psychiatric harm as a result of the Council’s breach reasonably foreseeable. In this case, for the reasons set out above, I do not consider that the Council had either imputed or actual knowledge so as to make Mrs Sayers’ psychiatric illness reasonably foreseeable. I accept the Council’s submissions that the test in proposition (7) in the judgment of Hale L.J. in Hatton requires similar knowledge to that required for foreseeability in breach of contract, although for breach of contract the requirement of the knowledge existing at the date of the contract provides a further limitation for contract claims.

Finally, the Council referred in passing in its written submissions to an argument that, in any event, damages for emotional distress are not recoverable. This matter was not fully argued and I prefer to limit the ground on which I reject the claim in this respect to one of foreseeability.

For those reasons I do not consider that the Claimant’s case for a breach of the implied term of trust and confidence can improve the position over the case based on breach of a common law duty. In my judgment, the claim for breach of an implied term also fails both in relation to breach and foreseeability.

The Council submits that the Regulations do not apply to Mrs Sayers. It submits that Regulation 20 contains a number of exemptions and provides that Regulations 4(1) and (2):

“do not apply in relation to a worker where, on account of the specific characteristics of the activity in which he is engaged, the duration of his working time is not measured or predetermined or can be determined by the worker himself, as may be the case for (a) managing executives or other persons with autonomous decision-taking powers; …”.

The Council contends that Mrs Sayers is a personwith autonomous decision-taking powers and so Regulation 4 does not apply to her.

The Claimant does not accept this and, in the absence of any authority, submits that, as Regulation 20 is an exception, it should be given a restrictive interpretation. Mrs Sayers, it is submitted, was a middle manager at Management Band 4 (“MB4”); she had no control over the hours she worked and she did not have “autonomous decision making powers.”

The Claimant relies on the Council’s own employee handbook which restricts those who qualify under the exception to “Chief Officers” and Mrs Railton confirmed that Mrs Sayers was not a Chief Officer. All employees below that level are required by the Council under the Working Time Regulations to complete a record of their working time including breaks.

The Claimant also relies on the collective agreement as amended in September 2001 and July 2004 which was disclosed towards the end of the hearing. She refers to paragraph 5.2 which deals with the exceptions and states that “workers whose work cannot be measured or predetermined and who have control over the hours that they work are excluded from the Regulations. In this category, under the collective agreement the Council excludes the Chief Executive and Directors. However, the Council expects these workers to comply with the principles of the Working Time Directive.”

The Claimant relies on this agreement between management and the unions upon how the exception is to be interpreted and submits that her work could be measured and predetermined and was not the Chief Executive or a Director.

Whether Regulation 4 of the Working Time Regulations applies to Mrs Sayers’ employment depends on whether because of the specific characteristics of the activity in which she is engaged, the duration of her working time is not measured or predetermined or can be determined by her, as may be the case for a “managing executive” or“other person with autonomous decision-taking powers”.

In the case of Mrs Sayers, she had a contract of employment which regulated her hours. I do not consider that there are any specific characteristics of the activity in which she was engaged which meant that the duration of her working time was not measured or predetermined or could not be determined by her. She was an Operations Manager and whilst this was a high level post in the Council, she reported to a Deputy Director. I do not consider that in her role Mrs Sayers could be described as a managing executive or other person with autonomous decision-taking powers. Whilst it is a matter for the interpretation of the Regulations, I note that the Council appears to have taken the same view in restricting the exception to those who are “chief officers”, “the Chief Executive” or “Directors”.

The Claimant relies on these Regulations in relation to the claim for breach of the common law duty and also as giving rise to a contractual claim based on breach of a contractual term requiring compliance with these Regulations and also as providing a claim for breach of statutory duty. I have already considered the impact of the Regulations in relation to the common law duty. I now consider the other claims.

The Claimant relied originally on the decision of Gage J in Barber v. RJB Mining (UK) Limited[1999] ICR 679 at 690 E – G and submitted that it correctly decided that there was an implied term in any contract that an employee could not be required to work more than 48 hours per week without his express written consent in advance (alternatively, that no contract of employment could be construed so to provide).

When, just before closing submissions, the Council provided the Claimant with a copy of an extract from the National Agreement on Pay and Conditions of Service (Green Book First Edition 1997 updated as at September 2001) which applied to Mrs Sayers’ employment, it became apparent that Part 2 Section 6 “Working Time” included the following provision at 6.4: “Working arrangements will comply with relevant Health and Safety legislation, including the European working time directive and its associated UK legislation.” The Claimant therefore amended its pleading to plead this as an express term.

The Council contended that there was no implied term. Whilst it accepted that Barber v. RJB Mining suggested that the 1998 Regulations create contractual rights, it submitted that this view conflicted with the decision of the Court of Appeal in Inland Revenue v. Ainsworth. It submitted that Barber was cited in argument and Ainsworth appeared to proceed on the assumption that it is wrongly decided. However, following the amendment the Council accepted, subject to the applicability of the Working Time Regulations to Mrs Sayers’ employment, that there was an express term covering the matter in Section 6.4 of the National Agreement.

Although I have found that Mrs Sayers worked between 50 and 60 hours per week up to April 2002 and not significantly over 50 hours per week after April 2002, I have found that this was not causative of her illness in August 2002. Further, the Council submitted, as it did for the breach of the implied term of trust and confidence, that even if there was a breach, damage must be foreseeable and that damages for emotional distress are not recoverable.

As I have set out above, I consider that for Mrs Sayers to succeed in a claim for damages for breach of a contractual term, she must establish that damage in the form of psychiatric illness was foreseeable. Whilst the question of the existence of a breach is clearly different, I see no difference in principle in the foreseeability required for damages to be recovered for breach of the implied term of trust and confidence and this express term. I therefore find that the Claimant’s claim would not have succeeded, in any event, on this basis.

As before, in relation to the Council’s submission that damages for emotional distress are not recoverable, I prefer to limit the ground on which I would have rejected the claim in this respect to one of foreseeability as the matter was not fully argued.

The Claimant relies on the existence of a cause of action for breach of statutory duty in order to overcome any finding that Mrs Sayers’ injury to her health was not reasonably foreseeable. At para. 16(xxiii) of the Re-Re-Amended Particulars of Claim it is pleaded that the Council “failed to ensure that the Claimant did not work regularly in excess of 48 hours per week as required by Regulation 4 of the Working Time Regulations 1998 and Article 6(2) of the Working Time Directive 93/104/EC.” Reliance on Article 6(2) of the Directive arose from a late amendment at the time of closing submissions.

The Claimant submits that the Court can and should ensure compliance with the Working Time Directive by interpreting Regulation 4 of the Working Time Regulations so as to give rise to a claim for breach of statutory duty, as if it were implemented pursuant to the 1974 Act or as a “Becker” claim, alternatively a “Francovich” claim against a emanation of the state for the direct effect of Article 6(2) of the Working Time Directive.

In relation to a breach of statutory duty, the Claimant submits that the recitals to the Working Time Directive demonstrate that the purpose of that Directive is to protect workers against the risk of injury to their health from working excessive hours. The Claimants relies on the principle that the legislature intended that a private law right of action should be conferred upon individuals in respect of any breach of the prohibition and refers to principles in Groves v. Lord Wimbourne [1898] 2 QB 402 and R v. Deputy Governor of Parkhurst Prison Ex parte Hague [1992] 1 AC 58 (see at 170 per Lord Jauncey).

The Claimant argues that the prohibition in Regulation 35 of the Working Time Regulations must have been intended by Parliament to have the effect it purports to have upon the face of it and that effective enforcement of the core obligation is necessary for proper implementation of the Directive in domestic law. This does not mean enforcement by requiring an employer on pain of criminal sanction to take “reasonable steps”, but by conferring a right to claim damages for breach of statutory duty.

It is submitted on behalf of the Claimant that so far as Regulation 4(1) of the Working Time Regulations is concerned, if there is no cause of action for breach of statutory duty, it has no other means of enforcement, since breach of it is neither an offence (see Regulation 29, and the definition of “relevant requirement” in Regulation 2(1)), nor does it give rise to remedy under Regulation 30.

The Claimant points out that the legal basis for the Working Time Regulations 1998 is the Working Time Directive (93/104/EC) which is a daughter directive of the Framework (Health and Safety) Directive (89/391/EEC). The legal base for both these directives is ex-Article 118a EC (“ex-Article 118a”).

The Claimant refers to Case C-84/94 United Kingdom v. Council [1997] ICR 443, in which the ECJ considered, in the context of a challenge against the choice of legal base for the Working Time Directive, the expression “safety and health” in ex-Article 118a. The Claimant refers to the Opinion of Advocate General Léger and the decision of the ECJ in United Kingdom v. Council, following the Opinion of the Advocate General and submits that the terms “safety” and “health” must have the same meaning in the Framework (Health and Safety) Directive and the Working Time Directive as they do in ex-Article 118a. Not only was ex-Article 118a the legal base for the Framework (Health and Safety) Directive, but that Directive was the principal general legislative instrument enacted under ex-Article 118a following introduction of the latter in the Single European Act 1986. In the absence of any indication in the Framework (Health and Safety) Directive and the Working Time Directive that the terms “safety” and “health” were to have a meaning different to that which they had in ex-Article 118a, it is very likely that the Community legislature intended those terms to have the same meaning in all three instruments.

The Claimant submits that, as the Working Time Directive is a “health and safety” Directive, it follows that any Regulations that purport to implement that Directive in England and Wales are also “health and safety” Regulations. It refers to Case C-151/02 Landeshauptstadt v. Jaeger [2003] IRIR 804 at paras 92 and 93 and states that this conclusion has received the approval of four ECJ cases in 10 years: UK v Council, SIMAP, Jaeger and Pfeiffer.

The Claimant refers to the Health and Safety at Work Act 1974 (“the 1974 Act”) which provides, among other things that the provisions“shall have effect with a view to (a) securing the health, safety and welfare of persons at work” (Section 1); that the Secretary of State shall have power to make “health and safety regulations”(Section 15(1)) and that “Breach of a duty imposed by health and safety regulations … shall, so far as it causes damage, be actionable except insofar as the regulations provide otherwise” (Section 47(2)).

The Claimant submits that, despite the ruling in the European Court case C-84/94 United Kingdom v. Council [1997] ICR 443, which clearly stated that the Directive was a health and safety measure, the WTR were made under section 2(2) of the European Communities Act 1972 which, unlike section 47(2) of the 1974 Act, does not provide that breaches of regulations made under it are actionable in civil proceedings, absent an express statement to the contrary.

The Claimant submits that Articles 3, 5 and 6 of the Working Time Directive do not receive protection equivalent to similar domestic law rights under domestic Health and Safety legislation. As the Working Time Regulations were not implemented pursuant to the 1974 Act, they do not automatically give rise to civil liability absent an express exclusion.

The failure to implement the Working Time Directive through the 1974 Act means that the Statutory Framework set up for the implementation of Health and Safety legislation in the UK has not been used. As a consequence, such protection as there is, provided by the 1974 Act, is not present for breaches of the Working Time Regulations. They are not “health and safety regulations” within the meaning of that Act and therefore do not form part of the enforcement policies of the HSE or Local Authorities.

The Claimant submits that whilst Regulation 30 of the Working Time Regulations provides that an employee may present a complaint to an Employment Tribunal that his employer has refused to permit him to exercise certain rights he has under the WTR, as set out in Regulation 30(1)(a) and (b), the Claimant states that Regulation 30 does not entitle an employee to complain to an Employment Tribunal for breaches of Regulation 4 (maximum weekly working time) or Regulation 8 (pattern of work). Therefore the Employment Tribunal provides no civil remedy for breaches of these two Regulations.

The Claimant refers to Case 397 Pfeiffer and others v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] ICR 1307 in which the ECJ held that a national court, hearing a case between individuals is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by the Directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in order to achieve an outcome consistent with the objective pursued by the Directive; and that, accordingly, in that case the national court had to do whatever lay within its jurisdiction to ensure that the maximum weekly period of working time set out by article 6(2) was not exceeded.

In response, the Council relies on the following matters as indicating that damages for personal injuries are not recoverable on proof of breach of a statutory obligation under the 1998 Regulations:

In my judgment, there is no justification for imposing a cause of action for breach of statutory duty in respect of Regulation 4 of the Working Time Regulations. I reach this conclusion for the following reasons:

The Claimant added a “Becker” liability claim for breach of statutory duty in relation to Article 6(2) of the Working Time Directive (“WTD”). Lord Hope summarised the basis for Becker liability in Three Rivers No 3 [2003] 2 AC 1 as follows:

“In Becker v Finanzamant Munster-Innenstadt (Case 8/81 {1982} ECR53, 70-71 the court made the following observations as to the conditions for the application of the direct effect principle to a Directive:

“22.

It would be incompatible with the binding effect which article 189 ascribes to Directives to exclude the principle the possibility of the obligations imposed by them being relied on by persons concerned.

“23.

Particularly in cases in which Community authorities have, by means of a Directive, placed member states under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law.

“24.

Consequently, a member state which has not adopted the implementing measures required by the directive within the prescribed period, may not plead as against individuals, its own failure to perform the obligations which the Directive entails.

“25.

Thus, whenever the provisions of a Directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the Directive or in so far s the provisions define rights which individuals as able to assert against the state.”

The Claimant submits that Article 6(2) (maximum weekly working time of 48 hours) of the WTD is clear and precise and identifies the obligation which is imposed on employers for the benefit of workers; the ECJ found that this provision is directly effective in Case 397 Pfeiffer and others v. Deutsches Rotes Kreuz,Kreisverband Waldshut eV [2005] ICR 1307.

The Claimant submits that all of the relevant provisions of the WTD created rights clearly intended to be conferred on individuals and in many cases, the said rights are sufficiently clear and precise to have direct effect. It submits that where the relevant EC rights have direct effect or are intended to confer rights on individuals, Community law is particularly vigilant as to the procedural protection provided for such rights in domestic law (Case C-46 & 48/93 Brasserie du Pecheur v Germany and Factortame III [1996] ECR 1-1029).

The Claimant also puts forward an alternative argument on the basis that the states that it is sufficiently clear for the purposes of the ECJ test Case C-6/90 Francovich v Italy[1991] ECR 1-5357 (paras 10-27) that the rights in the WTD are for the benefit of workers at work, according to autonomous Community definitions of “worker” and “work”. Similarly, the subjects of the obligations referred to below are sufficiently identified as “employers” for the purposes of the ECJ’s test in the Francovich judgment. In particular the Claimant submits that:

The Council submits that there is no claim for breach of statutory duty under the direct effect of Article 6(2) of the WTD. It points out that Article 6(2) which states that “Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers - …

The Council refers to Article 16, Reference Periods and Article 17, Derogations. It submits that it is implausible that the Claimant can bring a claim under the WTD given the range of opt-outs and exclusions and the wide applicability which means that it cannot give a cause of action in many circumstances.

Because the matter was raised in a late amendment and the subject of late submissions, the arguments were not fully developed. However, I have come to conclusion that the Claimant’s arguments are not well founded because:

The Claimant accepts that it cannot, on its face, bring a cause of action for breach of statutory duty in relation to the Management of Health and Safety at Work etc Regulations 1999. I consider that such a concession was inevitable given the terms of Regulation 22 of the 1999 Regulations which provides that breach of a duty imposed by those Regulations does not confer a right of action in any civil proceedings.

The Claimant also relies on the express term in clause 6.4 of the National Agreement on Pay and Conditions of Service (Green Book First Edition 1997 updated as at September 2001) which applied to Mrs Sayers’ employment and provided that “Working arrangements will comply with relevant Health and Safety legislation….”. The breaches alleged all relate to a failure to carry out a risk assessment. Whilst a risk assessment was not carried out, I do not see that this cause of action would avail the Claimant of any relief. As stated above, the evidence shows that any risk assessment was not likely to have discovered Mrs Sayers’ vulnerability. Further, the claim for breach of contract has the same problems of foreseeability which preclude a claim, in any event.

In its Further Closing Submissions dated 9 February 2006, the Claimant stated that it had not “sought to overburden these submissions with arguments about the direct effect of Articles of the Framework (Health and Safety) Directive 89/391/EEC or the retrospective application of the 2003 amendment Regulations SI 2003/2457 in order to comply with EC law, due to issues of proportionality and the risks of an adverse costs order. However, [the Claimant] wishes to reserve her position on these two points should this case go further.”

Following consideration of the appropriateness of this course during closing submissions, I gave directions for any further submissions and on 15 February 2006 the Claimant served submissions upon the direct effect of the Framework Health and Safety Directive. The Claimant therefore sought to overcome the impact of Regulation 22 in one of two ways. First, by a contention that the Framework Health and Safety Directive has direct effect or, secondly, by a contention that the provisions of Regulations made in 2003 and which amended the 1999 Regulations have retrospective effect.

In those further submissions, the Claimant develops its argument on direct effect. The Claimant refers to Articles 1 and 6 of the Framework Directive 89/331 and, in particular, submits that the sphere of application of the Framework Directive is determined by the construction of the phrases “safety and health” and “every aspect related to work”.

The Claimant refers to Cross v. Highlands and Islands [2001] IRLR 336 in which the Scottish Court of Session (Outer House) held that the Framework Directive was not intended to cover work-related stress and did not do so. By reference to the Opinion of the Advocate General and the decision of the ECJ in Case C-84/94 United Kingdom v. Council [1996] ECR I-5755, concerning ex-Article 118a, the Claimant submits that, in the absence of any indication in the Framework Directive that the terms “safety” and “health” were to have a meaning different to that which they had in ex-Article 118a, it is very likely that the Community legislature intended those terms to have the same meaning in both instruments.

The Claimant submits that the approach of Lord Macfadyen in Cross is contrary to the teleological method of construction which every domestic judge is obliged to adopt when interpreting a provision of Community law and that, as Lord Diplock noted in Henn v. Darcy v DPP [1981] AC 850 (at p. 905) “[the ECJ] seeks to give effect to what it conceives to be the spirit rather than the letter of Treaties; sometimes, indeed to an English judge, it may seem to the exclusion of the letter. It views the Communities as living and expanding organisms and the interpretation of the provisions of the Treaties as changing to match their growth”. Thus, even if, at the time of the adoption of the Framework Directive in 1989, the phenomenon of stress at work was not in the contemplation of the Community legislature, the Claimant submits that it does not follow that psychological injury inflicted by such stress should be excluded from the sphere of application of the Framework Directive.

In this respect, the Claimant refers to Case C-49/00 Commission v. Italy (unreported judgment of 15 November 2001) where the ECJ stated, in relation to Article 6(3)(a) of the Framework Directive, that “the occupational risks which are to be evaluated by employers are not fixed once and for all, but are continually changing in relation, particularly, to the progressive development of working conditions and scientific research concerning such risks” (para. 13).

The Claimant therefore relies upon the principle that individuals may rely directly on the provisions of a Directive, regardless of any national implementing regulations under Article 249 EC, against an “emanation of the state” where the provisions of the Directive are sufficiently precise and unconditional (Case 41/74 Van Duyn v. Home Office [1974] ECR 1337). In this way the Claimant seeks to rely on Articles 6(2), 6(3) and 6(5) of the Framework Directive.

The relevant legal principles of whether the provisions are unconditional and sufficiently precise were dealt with by Mummery LJ inGibson v. East Riding of Yorkshire Council [2000] IRLR 598 at 599:

As regards the clear identification of the beneficiaries of the rights under the Framework Directive, the Claimant submits that it is sufficiently clear for the purposes of the ECJ’s test in the Francovich judgment that the rights in Articles 6(2), 6(3) and 6(5) are for the benefit of workers at work (Article 1), according to autonomous Community definitions of “worker” and “work”.

Similarly, the subjects of the obligations referred to below are, the Claimant submits, sufficiently clearly identified as “employers” for the purposes of the ECJ’s test in the Francovich judgment.

The Claimant accepts that more difficult is the assessment of the conditionality and precision of the rights under the Framework Directive. However, the Claimant submits that Article 6(2) of the Framework Directive provides for clear and unambiguous duties upon employers for the benefit of their employees. Although described in the Article as “general principles of prevention”, these obligations are likely to be sufficiently precise to be enforced in a domestic tribunal without further detail. In particular, the obligation to adapt the work to the individual at Article 6(2)(d) and the obligation to develop an overall prevention policy at Article 6(2)(e) require, no further action by a Community institution or a Member State in order for them to operate between employers and their employees.

Similarly, the Claimant submits that the obligation set out in Article 6(3) of the Framework Directive to carry out a risk assessment requires no further action by a Community institution or a Member State. This obligation is described in detail and permits no limitation on the part of the national authorities as to the manner of its implementation.

However, the Claimant accepts that the reference to “appropriate steps” and to “adequate instructions” in Article 6(3)(d) may be construed to be ambiguous and not capable of conferring rights on individuals, as the Framework Directive fails to define the expressions “appropriate steps” or “adequate instructions” or to provide machinery for the determination of these requirements. On the other hand, it is arguable that it is for the employer to determine what is appropriate and adequate in this regard and no further detail is necessary to establish obligations which may be enforced effectively without further explanation. If Article 6(3)(d) does not have direct effect because of the ambiguity of these expressions, this does not affect, the Claimant submits, the ability of Article 6(3)(a), (b) and (c) to confer rights on individuals. The Claimant also relies on Article 6(5) which it contends is unambiguous and does not require any further action or detail to be enforced effectively between employers and their employees.

The Claimant submits that the assessment by Lord Macfadyen in Cross fails to examine the terms of the Framework Directive in the manner approved by the ECJ in Francovich and the Court of Appeal in Gibson. It also submits that such an interpretation ignores the detailed obligations set out in Articles 6 of the Framework Directive itself.

The Claimant refers to Regulation 22 of the Management of Health and Safety at Work Regulation 1999 which provides that “Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings”.

The Claimant submits that, in the absence of the possibility of civil liability for the breach of the Community law rights contained in the Regulations, there is no effective deterrent against such breach, contrary to the decision of the ECJ in Case 68/88 Commission v. Greece [1989] ECR 2965.

The Claimant submits that the directly effective rights protected by the Framework Directive relate to the physical and mental integrity of individual workers, and thus deserve a higher degree of protection than those rights which may be characterised as purely economic. In the circumstances, it is appropriate for domestic rules to allow the beneficiaries of such rights access to every “type of action provided by national law, on the same conditions concerning enforceability and procedure as would apply were it is a question of ensuring observance of national law”: Case 15/80 Rewe Handelsgesellschaft Nord mbH v. Hauptzollamt Kiel [1981] ECR 1805.

In Case C-326/96 Levez [1998] ECR I-7835, the ECJ held that in considering the principle of equivalence, the national court must take into consideration both the purpose and the essential characteristics of similar domestic actions. In the case of a worker injured through breach of a directly effective provision in a health and safety Directive, the action would most likely resemble one for breach of statutory duty.

The Council submits that the Framework Directive does not have direct effect. It also refers the summary in Gibson of the circumstances in which a directive is capable of being relied upon as having direct effect.

The Council submits that, applying this test the Courts have considered whether the underlying directive satisfies these criteria and in Cross v. Highlands and Islands; Cowley v. Mersey Regional Ambulance Services NHS Trust; Millward v. Oxfordshire County Council; Westwood v. Accantia (at first instance and on an application for permission to appeal)and Martindale v. Oxfordshire County Councilthe courts have rejected the submission that the Framework Directive has direct effect after a detailed examination of the provisions of the directive.

Having considered the arguments put forward by the Claimant and in the light of the previous decisions referred to by the Council, I can summarise my views as follows:

In my judgment, therefore, the Claimant has no cause of action under the direct effect of the Framework Health and Safety Directive.

The Claimant claims in paragraphs 14D and 16(xvi) of the Re-Re-Amended Particulars of Claim that the Council was in breach of statutory duty in respect of the Management of Health and Safety at Work Regulations 1999.

Both the 1999 Regulations and the previous 1992 Regulations were made under the Health and Safety at Work etc Act 1974 which at s. 47(2) provides that breach of a duty imposed by health and safety regulations which causes damage is actionable, except insofar as the regulations provide otherwise. Regulation 15 of the 1992 Regulations and Regulation 22 of the 1999 Regulations both provided that, so far as relevant in this case, breach of a duty imposed by those Regulations should not confer a right of action in any civil proceedings.

In 2003, the 1999 Regulations were amended with effect from 27 October 2003 by the Management of Health and Safety at Work and Fire Precautions (Amendment) Regulations 2003 which substituted a new Regulation 22 in the 1999 Regulations which provides that: “Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in his employment.” The effect of this, read with s. 47(2) of the 1974 Act is to give a civil right of action to an employee against his employer, but not otherwise, for breach of the 1999 Regulations.

The Claimant therefore seeks to argue that Regulation 22 of the 1999 Regulations, as amended by the 2003 Regulations should have effect.

The Council submits that it is difficult to see how it can be argued that the 2003 amendment Regulations which amended the 1999 Regulations with effect from 27 October 2003 can have the effect of amending the 1999 Regulations and it relies on the Interpretation Act 1978 as precluding that view.

The Council also refers to Westwood v. Accantia(Unreported, 29 April 2005) in which the judge concluded that the amendment to the 1999 regulations did not have retrospective effect. On an application for permission to appeal, the Court of Appeal agreed with this view.

I do not consider that the 2003 amendment Regulation which came into effect on 27 October 2003 had retrospective effect. Even on the most purposive construction of the Regulations, it does not impose retrospective liability on employers. Further, the provisions of section 16 of the Interpretation Act 1978 apply to subordinate legislation, such as the Regulations by section 23 of that Act. Section 16 contains provisions which, subject to any contrary intention, have the effect of excluding any retrospective effect of any legislation. There is no contrary intention in this case.

I note that this was the conclusion which was reached in Westwood v. Accantia(Unreported, 29 April 2005) at paragraphs 145 and 146 in relation to the effect of the 2003 amendment on the 1992 Regulations. In considering an application for permission to appeal, albeit by reference to the task of applying the 2003 amendment to the 1992 Regulations, Rix LJ considered it an “impossible task” in the absence of an express provision.

As a result I do not consider that Mrs Sayers could have any claim for damages for breach of statutory duty under the 1999 Regulations.

I therefore conclude, with regret, that Mrs Sayers does not succeed in the claim which she brings in a number of ways against the Council.

She is obviously a talented person who commanded the trust and respect of many people and who had great dedication for the work she carried out in social services. The fact that she has persevered in this work despite the difficulties which are apparent from her medical history reflects to her credit. Whilst I am aware that the absence of a claim against the Council will be a disappointment for her, I hope that her talents and abilities will be put to good use in the future.