Rayment v Ministry of Defence

The claimant brings this action for damages pursuant to a breach of the Protection from Harassment Act 1997 (“The 1997 Act”) and/or negligence. The allegations arise during the period January 2004 to June 2005 when the claimant was employed by the defendant, the Ministry of Defence, at the Honourable Artillery Company (“HAC”). It is pleaded that the claimant was subjected to bullying, victimisation and harassment in the form of persistent, offensive, abusive, intimidating, bullying, humiliating and insulting behaviour.

The allegations concern separate incidents and are directed in particular against three individuals: Major Paul McCaffery, Captain Chadwick and Regimental Quartermaster Perrin. As a result of the actions of these men and others, it is alleged that the claimant has suffered psychiatric damage, namely an adjustment disorder with resultant loss of employment.

The relevant parts of the 1997 Act provide as follows:

“1.

(1) A person must not pursue a course of conduct –

a)

which amounts to harassment of another, and

b)

which he knows or ought to know amounts to harassment of the other.

(2)

For the purpose of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3)

Subsection (1) does not apply to a course of conduct if the person who pursued it shows……..

(c)

that in the particular circumstances the pursuit in the course of conduct was reasonable.

2.

(1) A person who pursues a course of conduct in breach of s.1 is guilty of an offence.

(2)

A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.

3.

(1) An actual or apprehended breach of s.1 may be the subject of a claimant’s civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2)

On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

7.

(1) This section applies for the interpretation of s.1-5.

(2)

References to harassing a person include alarming the person or causing the person distress.

(3)

(a) “Course of conduct” must involve conduct on at least two occasions.

(4)

“Conduct” includes speech.”

In Majrowski v Guys and St Thomas’ Trust Ltd [2006] UKHL 34; [2006] IRLR 695 the House of Lords concluded that an employer could be vicariously liable for acts of harassment caused by an employee in breach of the 1997 Act. The meaning of the word “harassment” had been addressed by May LJ in Majrowski in the Court of Appeal, [2005] QB 848 and his definition was not the subject of the appeal to the House of Lords. In his judgment May LJ said:

“The Act does not attempt to define the type of conduct that is capable of constituting harassment. “Harassment” is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in s.7 and which is oppressive and unreasonable…

Thus, in my view, although s.7 subsection 2 provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood.”

In Veakins v Kier Islington Ltd [2009] EWCA CIV1288 Maurice Kay LJ considered the case of Majrowski. He referred to the speech of Lord Nicholls where it was stated:

“Where….the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upsets, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable and conduct which is oppressive and unacceptable.”

Baroness Hale said (at paragraph 66):

“A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.”

Maurice Kay LJ referred to the authority of Ferguson v British Gas Trading Ltd [2009] EWCA CIV46, where Jacob LJ said (at paragraph 17-19):

“I accept that the course of conduct must be grave before the offence or tort of harassment is proved…

It has never been suggested generally that the scope of the civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognised, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will interfere…”

Expressing the opinion of the court, Maurice Kay LJ said (at paragraph 11):

“Leaving aside the fact that Jacob LJ in Ferguson variously described the necessary level of conduct as “grave” and “fairly severe”, it seems to me that since Majrowski, courts have been enjoined to consider whether the conduct complained of is “oppressive and unacceptable” as opposed to merely unattractive, unreasonable or regrettable. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which “would sustain criminal liability.”

The court may take account of the claimant’s behaviour and apparent robustness of character Johnstone v Bloomsbury Health Authority [1992] QB 333.

In Hammond v International Network Services [2007] EWHC 2604 (QB) His Honour Judge Peter Coulson QC, sitting as a Judge of the High Court, considered this question. In so doing, he considered the summary provided by Owen J in Green v DB Group Services [2006] EWHC 1899 (QB). His Honour Judge Peter Coulson QC stated that in order to establish harassment under the 1997 Act, there must be conduct:

Given the particular facts of this case, the judgment of Hale LJ in Hatton v Sutherland [2002] I.C.R. 613 at paragraph 43 subparagraph 3 is particularly relevant:

“(3)

Forseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury but may be easier to foresee in a known individual than in the population at large…An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.”

The claimant issued her claim on 4 April 2007. The defendant sought to rely upon the three year limitation period in respect of allegations of negligence prior to 4 April 2004. These allegations are no longer relied upon by the claimant.

The claimant is now aged forty one. In September 1994 she had a daughter, Elisha, who is profoundly deaf. The claimant has brought up Elisha as a single parent. It is clear that she has striven hard to ensure Elisha receives all necessary support, be it educational or medical. The claimant has had her own difficulties, namely an extensive past psychiatric history of depression following the birth of her daughter. This depression can be triggered by adverse life events, for example, a boyfriend leaving her, incidents at work, discovering that her partner was married. The claimant has been treated for many years with anti-depressants and has on occasion been seen and assessed by practitioners in the field of psychiatry. It was accepted by the medical experts that the claimant had a considerable pre-existing vulnerability to developing a psychiatric disorder.

In 1987 the claimant joined the Territorial Army (“TA”) as a volunteer and remained as a member until February 2003. During the claimant’s time with the TA, she received driving training which qualified her to drive vehicles ranging from cars to HGVs. Her duties thereafter included work as a driver. Prior to joining the HAC in 2003, the claimant had worked as a civilian for the Ministry of Defence, for the TA and in the non-military sector.

In January 1999, whilst working as a tanker driver for BP, she sustained a back injury. The claimant commenced legal proceedings against her employers, which were settled. In March 1999 the claimant moved from TA251 Provost Co as a volunteer to TA21 Special Air Services Regiment (“21SAS”). In September 1999 the claimant was the victim of a serious sexual assault whilst taking part in a TA exercise in Germany. She initially complained but said that she was placed under pressure to discontinue.

In July 2002 the claimant commenced work as a civilian employee for the MoD, as an administrative assistant with 3 Military Intelligence Battalion (volunteers) (“3MI”). In February 2003 the claimant resigned from the TA. In her witness statement, she says that it was a consequence of the breakdown of her relationship with the senior NCO in 22SAS. By 2003 the TA required its volunteers to be available to work overseas and given the commitment to her daughter, this was not possible for the claimant.

In May 2003 the claimant began working as a civilian employee, namely a stores person at the ceremonial stores at the HAC in City Road, London EC1. In her witness statement, the claimant says that her basic contractual hours of work were 36 hours per week, generally 9.00am to 4.30pm. In addition she would have to attend drill nights two to three times per month, for which she would receive overtime pay or time off in lieu.

In December 2003 a vacancy was advertised for the post of staff car driver, Grade A, as driver for the Commanding Officer (“CO”) of the HAC. It was a post for a non-regular permanent soldier (“NRPS”). The primary role was driver for the CO, the secondary role was to work with the Military Transport quartermaster’s department running the unit’s spares account. The dual role was proposed as the role of driver and was not full time. Lieutenant Colonel Garrett, the CO, was a member of the TA and was in full time civilian employment.

On 15January 2004 the claimant applied for the post. It represented a significant promotion for her. She believed the secondary stores role would be much less demanding than her job in the ceremonial stores. The claimant was confident that she could meet the demands of the job and her home responsibilities. The claimant was successful in her application.

Prior to March 2004, the claimant’s timekeeping and attendance was of concern to her line manager, as were her relations with colleagues. RQMS Perrin’s evidence was that punctuality became a concern almost immediately. The claimant either did not turn up for work, was late in arriving, or phoned in sick. On 12 February 2004, the claimant was called to a meeting with her line manager, Captain Chadwick, to discuss her attendance record. Between 8 July 2003 and 12 January 2004, the claimant took 36 days sick leave. The claimant accepted that she had had time off work due to sickness and had taken flexi-time to resolve problems that she had had with her daughter’s education and benefits. She objected to the way in which her days off had been calculated. At the meeting, Captain Chadwick raised his concerns about the claimant’s ability to do the work of the CO’s driver. On the claimant’s account, it related to her daughter and her sickness record. Captain Chadwick said that he asked her to reconsider applying due to her previous poor record of attendance.

In February 2004 Major Paul McCaffery joined the HAC as Adjutant. As Adjutant, Major McCaffrey was the CO’s primary staff officer. As the CO was a member of the TA, much of the day to day running of the regiment was done by the three most senior officers, Major McCaffrey, Captain Chadwick and Major Papenfus. It was the evidence of Major McCaffrey that within a short period of taking up his appointment and certainly prior to 27 February, the date of the interview for the post of driver, he had heard allegations, rumours and gossip relating to the claimant. They related to her disruptive conduct, her timekeeping and problems with other units. Major McCaffrey decided to speak to the QM at 3MI. He was told the following:

Major McCaffrey took no steps to investigate the truth of these allegations but did inform Lieutenant Colonel Garrett of the substance of what he had learnt. Had steps been taken to establish the veracity of these allegations, it would have been found:

The claimant did not accept that her conduct was a cause for concern at 3MI, however it was conceded on her behalf generally that there were problems with her timekeeping.

By February 2004, the claimant was driving on a temporary basis for the CO. During these journeys the CO and the claimant would converse. The CO learnt more of the personal circumstances of the claimant. He asked the claimant if she could reconcile care of her daughter with the demands of the job. The claimant said that she could. It was the evidence of Lieutenant Colonel Garrett that the claimant openly boasted of the number of times she had sued a previous employer or reached a settlement with a local authority regarding the provision of services for her daughter. Lieutenant Colonel Garrett became concerned. He had the impression that the claimant could be trouble and would use the system against her employers. He had also become aware that some of his staff were finding the claimant difficult to deal with.

As a result of his concerns, the CO instructed a Captain Longbottom to attend the Army Board in London HQ on the date of the claimant’s interview to “ensure that the Board was aware of the practical difficulties we were having with the claimant”. In the event, the Board was directed by its Secretary not to take account of innuendo or gossip. The Board appointed the claimant to the position, a full time soldier with the rank of Lance Sergeant, as an NRPS.

From 1 March 2004, the claimant began to undertake driving duties for the CO, in addition to her ceremonial store’s duties. Officially, her post commenced on 1 April 2004. Records relating to her hours would have been kept in overtime sheets and work tickets. The work tickets are no longer available and the claimant relied upon entries in her diary to record the number of hours which she worked. In the first three weeks of March, her diary entries record that her working hours could finish late in the evening or in the in early hours of the morning. During this period, she claimed up to twenty one hours overtime.

By mid-March, the claimant was concerned that the combination of stores and driving duties led to excessive hours. She sought clarification of her job specification. Because of the claimant’s concern, she was moved from the stores to the less demanding role of Transport Officer in the Military Transport Department. That job lasted just one week. Sergeant Craigie, the Military Transport Warrant Officer, asked the quartermaster if the claimant could be moved elsewhere as there was friction between the claimant and the other staff in the department. Sergeant Craigie said that from the first day there was an atmosphere in the workplace, the claimant clashed with another driver, she refused to carry out certain tasks. The claimant returned to work in the stores.

The position in March appears to be this:

What in fact occurred was that the claimant would drive the CO in the evening and then take time off in lieu the next day. Unfortunately, she did not inform her line manager of the time she intended to arrive at work, which caused difficulties for other employees.

On 29 March 2004, the claimant was driving the CO to Stanstead Airport in the early morning when she began to feel ill, weak and thought she was about to faint. The next day she was still experiencing the same symptoms and consulted her GP, who thought that the problem might be related to her ear. On 1 April the symptoms continued.

It was the evidence of Captain Chadwick that on 1 April 2004, Sergeant Craigie had to call the claimant at home to find out where she was, as she had taken time off without authority. On Captain Chadwick’s account, the claimant arrived for work at 15:00hrs. On 2 April 2004, Sergeant Craigie again called the claimant at her home, to enquire where she was. The claimant told Sergeant Craigie that as she was going to be working late, she would start late. On the claimant’s account, she arrived at the HAC at 11:00am and was called to a meeting with Sergeant Craigie at which he shouted at her, informed her that she was now in the military and that he and Captain Chadwick were “pissed off” with her behaviour. The claimant at that meeting complained of her long hours, of feeling unwell and that she could not cope unless she had adequate time off. She also complained about the state of the female toilets which she believed had been deliberately fouled by a male member of staff and about pornographic pictures on the wall of the Military Transport restroom.

I accept that the claimant understandably took exception to the manner in which she was addressed by Sergeant Craigie. I have no doubt that Sergeant Craigie was fed up and frustrated by the attitude and the behaviour of the claimant. Having seen and heard both witnesses, I believe that each was perfectly capable of holding their own during any such exchange.

On 5 April 2004, the claimant was driving to work, felt unwell and was unable to continue. She attended her GP’s surgery, experienced considerable dizziness and was taken by ambulance to Basildon Hospital. She was admitted and remained until 8 April 2004. No diagnosis of the claimant’s condition was made, various investigations were instigated.

On 7 April 2004, Captain Chadwick visited the claimant at the hospital. The claimant alleges that Captain Chadwick told her that it was thought that she had suffered a mental breakdown and he told her that the best thing she could do was to rest. Captain Chadwick sought to obtain swift medical care for the claimant and arranged for her to be seen and assessed at the Baird Medical Centre, a military centre at St Thomas’s Hospital, London. Captain Chadwick’s reference to a breakdown is pleaded thus:

“It is the claimant’s case that this was a deliberate attempt to undermine the claimant’s confidence.”

Captain Chadwick’s evidence was that he visited as a friend and thereafter used the military service to obtain prompt medical care for the claimant. I accept Captain Chadwick’s evidence.

The claimant remained on sick leave. On or about 21 April 2004, she telephoned Captain Chadwick to request transport to attend a medical appointment the next day, as she said she was unable to travel on public transport. It so happened that on the day of that call, the claimant had been persuaded by her mother to go on a coach trip to Kent, a fact which did not impress Captain Chadwick when she told him of it.

On 13 May, the claimant attended a medical appointment at the Baird Medical Centre. She was still awaiting a CT scan, no diagnosis had been made. Dr Schauder informed the claimant that she would not be permitted to drive for six months or until the CT scan or other tests had shown otherwise. Dr Schauder wrote a letter confirming this matter. The claimant returned to work on 17 May 2004.

On arrival at the HAC, the claimant was called to a meeting with Major Paul McCaffery and Major Papenfus. The claimant handed Dr Schauder’s letter to Major McCaffrey. On the claimant’s account, Major McCaffrey then told her that as she could no longer drive, she would be unable to work as the CO’s driver. He also said that there had been a mistake, that she was not employed as an NRPS but was a TA volunteer. In short, she had no job. The claimant was shocked and upset.

The claimant sought out Captain Chadwick to see if the job within ceremonial stores was still available and was told by him that it was now filled. The claimant went to see the Chief Clerk to discuss the financial implications of the news and was told that she had to repay her month’s salary as she had never been an NRPS. The amount was approximately £1300. This further added to the claimant’s distress and she left the barracks in tears. The next day she contacted Army Welfare Service.

The matters which led to the meeting on 17 May initially arose from a genuine administrative error on the part of individuals at the Army Personnel Centre (“APC”) in Glasgow and the HAC. The claimant wished to be readmitted to the TA as a volunteer and as part of the process, had to take an oath of allegiance and sign attestation papers. That was done on 5 February 2004. In order to take up her position as the CO’s driver and as an NRPS, the claimant was required to swear the same oath and sign attestation papers. In an effort to speed up the administrative process, it was agreed between the APC and the HAC that the original attestation papers could be amended to reflect the claimant being attested as an NRPS soldier. Papers were signed to that effect and dated 1 April 2004. When the form, dated 1 April 2004, was scrutinised by a member of APC, it was appreciated that the original attestation, taken on 5 February 2004, could not be valid, as it predated the claimant’s appointment as the CO’s driver.

By 12 May 2004, Major McCaffrey had been informed that the claimant would not be able to drive for a period of six months. Major McCaffrey made his own enquiries of the APC in Glasgow and was aware of the administrative error that had occurred. All that was required to solve the problem was the retaking of the oath and the signing of the correct NRPS attestation papers by the claimant. Major McCaffrey chose not to take that course. In his evidence, Major McCaffrey said that his concern was for the Regiment, the claimant was unable to work as a driver and the Regiment needed a driver for the CO. Major McCaffrey denied using an administrative error to get rid of the claimant. I do not accept Major McCaffrey’s evidence. By 17 May, the view had clearly been formed that the claimant was a troublesome and challenging employee. I find that Major McCaffrey wrongly sought to use an innocent administrative error as a means of attempting to rid the Regiment of the claimant.

In a letter dated 13 May 2004, written by Major McCaffrey to the APC in Glasgow, Major McCaffrey stated:

“She was awarded the NRPS job of CO’s driver EF01 April 04 but unfortunately owing to sickness, has been unable to sign the correct NRPS attestation papers. Therefore she is currently only legitimately attested as a TA soldier until such time that she signs the correct document. This statement represents my honest understanding of events up until this point.”

It was incorrect to state that sickness prevented the claimant from signing the correct NRPS attestation papers. Prior to 13 May, she had not been requested to do so.

The Army Welfare Service took up the investigation of the claimant’s problem and it came to the attention of Colonel G.A. Hazelwood, Deputy Chief of Staff, Headquarters London District. In a letter dated 27 May 2004, addressed to the CO, Colonel Hazelwood set out in blistering detail his concern as to the facts and the handling of the matter. In that letter, Colonel Hazelwood made the following points:

The result of this letter was that the claimant was reinstated on 27 May 2004. When giving evidence, Lieutenant Colonel Garrett expressed disappointment that the claimant had contacted Army Welfare Services rather than speaking to individuals within the Regiment. It is difficult to see how the claimant could have spoken to people in the Regiment given the events of 17 May. She took wholly appropriate action in contacting the services which were specifically provided for individuals in her situation, they took the matter up and properly investigated it.

Upon her return to work, the claimant spoke to Captain Chadwick and Quartermaster Perrin. She was told to put the past behind her and get on with the job. Significantly, no person offered her an apology. On 1 June 2004, the claimant retook the military oath with Major Murray. She returned to her original employment in the ceremonial stores.

From 1 June 2004 onwards, the claimant catalogued a series of incidents which her own counsel described as being either petty, purely malicious or just ill-mannered behaviour. When cross-examined as to these incidents, the claimant repeatedly spoke of the “tone” adopted by individuals who spoke to her. Correctly or otherwise, the claimant now believed there was a real sense of hostility directed towards her by those who worked at the HAC. It would be fair to say that the matters surrounding the 17 May meeting did nothing to improve the claimant’s attitude towards those with whom she worked or her timekeeping.

By July 2004, the claimant had begun to discuss with the Army Welfare Service the making of an application for redress of complaint under the Army’s grievance procedure. On 26 July 2004, Captain Chadwick had a meeting with the claimant. On her account, he informed her that she was unreliable and as a result, would be removed from duties at evenings and weekends in the stores and that she would no longer be responsible for ceremonial uniforms and combat kit. By this time, the claimant was still awaiting the result of a CT scan and medical confirmation that she was fit to drive. That was given on 3 August 2004. On 31 August 2004, the claimant resumed her driving duties as the CO’s driver. She had no secondary role but would also drive for other officers.

On 5 October, the claimant gave her redress of complaint to the CO. The complaint stated:

“between 01MAR04 and 01SEP04, I have been discriminated and harassed in my working environment with varying degrees of verbal and non-verbal abuse, resulting in feelings of isolation and anxiety.”

The allegations commenced in February 2004 with a perceived act of discrimination in the Sutling Bar, they encompassed the long hours of March 2004, the 17 May meeting and incidents thereafter. The CO asked Major Papenfus to investigate the matter.

By a letter dated 24 November 2004, the CO responded to the application. In that letter, he states:

“The picture painted by the totality of the investigation once all points of view are heard, is of an almost complete breakdown in working relations with your supervisors in the MT and the Stores. One issue is clear and undisputed; both in this appointment as my NRPS driver, and your previous appointment as a civil servant in the unit, you have had a substantial amount of time off, mainly through sickness but on occasions for compassionate reasons. This has caused considerable disruption. You are entitled to sick leave, and compassionate leave up to a point, and to be fairly treated, but nonetheless you should be sensitive to the feelings of your colleagues and supervisors who have had to cover the gaps, often at considerable inconvenience to themselves.”

The HAC has to accept responsibility for the matters relating to the meeting on 17 May 2004, but I accept that the claimant could be a challenging individual who did not always assist her own cause.

The claimant made no disclosure to the HAC in advance of her employment as a civilian or the CO’s driver of her lengthy history of depression. As part of her application for the CO driver’s job, the claimant had to complete a medical questionnaire. Questions were asked as to any existing or previous medical conditions. It included one which referred to “nervous breakdown or mental illness”. The claimant said that she thought this referred to something serious such as schizophrenia or a breakdown which prevented permanent function. She did not think that her history came within such a description and made no disclosure. It is clear from the medical records that when the claimant first suffered ill health on 29 March 2004, it took months before an eventual diagnosis of panic attack was made. That is no criticism of those investigating her, it is simply a fact and explains the comment in the letter of November of the difficulty that the HAC had experienced in trying to obtain a medical opinion as to the nature and extent of the claimant’s medical condition.

The claimant was unhappy with the response from the CO. On 1 December 2004, she had a meeting with Major McCaffrey and RSM Finney and was given a revised mid-term appraisal, she had objected to her first appraisal. The first paragraph of the appraisal stated that she had failed in her secondary role on the unit’s spares account because she was a disruptive influence. The claimant described this as being “fundamentally wrong”, burst into tears and left the room.

On 2 December 2004, the wife of the CO was late in arriving for a parade, having being driven there by the claimant. Having heard the account of what occurred from the claimant and Major McCaffrey, I am satisfied there was a genuine misunderstanding as to the instructions that were given by Major McCaffrey and as they were understood by the claimant. In her witness statement describing the actions of Major McCaffrey, the claimant says “I felt stressed and harassed because it seemed to me that this had been a deliberate attempt to trip me up.”

On 6 December 2004, the claimant told Major McCaffrey that she had applied for annual leave in order to take her daughter to Disneyworld, Florida in January, at the same time as the CO was on leave. She had in fact booked the holiday prior to making application. The claimant was of the view that as she had been working long hours, she had accrued sufficient time off in lieu. Major McCaffrey was unhappy because the period sought was not part of the HAC’s block leave and he appeared not to be convinced that the claimant was entitled to further annual leave or time off in lieu. In the event, he gave the claimant the time she sought. In her statement, the claimant says she felt “anxious and panicky that my line manager was making life difficult for me and I knew that Elisha would be very disappointed.” Omitted from her written account is the fact that the claimant presented Major McCaffrey with a fait accompli, which he had to deal with. This one example exemplifies the attitude of the claimant to those in authority at the HAC and the manner in which she would make her own decisions and inform others of it afterwards.

By 19 December 2004, the claimant states that her situation had become unbearable, a combination of long hours at work, her unresolved redress of complaint, the hostility she was experiencing at the HAC and her feeling of isolation. In her oral evidence, the claimant did not suggest that all treated her in a hostile manner. By reason of her feelings, the claimant began to prepare a further redress of complaint.

The claimant took her holiday in January. On her return, she telephoned the HAC and said that she could not face returning. On 18 January 2005, she attended the Baird Medical Centre. The claimant said that she was told by a doctor there that she was suffering from anxiety and stress and was not fit for normal duties for seven days. She was also given a letter from the Community Psychiatric Nurse to be given to the CO, which stated that she should be transferred to another unit, while her complaints of bullying and harassment were being investigated. The period of being medically unfit for normal duty was further extended by the doctors.

On 21 February 2005, while still at home, the claimant was visited by a member of the HAC and given a formal written warning. The warning was in the name of the CO and was dated 14 February 2005. The duration of the warning was three months. The warning began with the following paragraph:

“Justification by Originating Officer

In light of your poor suitability to your contracted role within the Regiment, I’m officially placing you on a formal warning for the period of three months. I am disappointed to have to do so; however your probationary period thus far has been dominated by your disruptive influence within the Regiment, and apparent predilection to seek reprisal for any apparent wrong doing that you believe you have suffered and continued absence. My concern is the totality of my experience of you as an employee and vital member of my support staff.”

Unsurprisingly, the claimant was deeply upset. She took the warning to her CPN. On 11 March 2005, she submitted a further redress of complaint directed at the handling of her previous complaint by the HAC. The CO rejected that application on 11 March 2005.

The warning expired on 21 May 2005. The claimant was still on certified sick leave and received no formal notification of the expiration. On either 9 or 10 June 2005, the claimant was visited by a member of the Regiment and given the Originating Officer’s assessment. The essence of the assessment was two-fold:

The recommendation of the CO was that administrative action should commence against the claimant to have her removed from her role as the CO’s car driver. The effect was to bring to an end, not only that role, but also her role as a TA volunteer. The discharge was an administrative discharge. From that date, the claimant has continued to press for a proper investigation of what occurred at the HAC and has filed two further redress of complaints relating to her discharge and the delay in dealing with earlier applications.

As to certain issues, there can be no dispute. From the first incident on 29 March when the claimant suffered a panic attack, all her subsequent periods of sickness were appropriately certified by medical practitioners. The process of medical diagnosis proved to be problematic as it was initially thought that her condition could be related to her ears or vertigo. From the date of the issue of the first warning, the claimant did not return to work but was at all times appropriately certified as being unable to resume her normal duties. As to the redress of complaints, any employee was entitled to make these.

Behind the formal warning is the “hand” of Major McCaffrey. It is clear that on 24 November 2004, he was in contact with HQ Londist, seeking professional advice in respect of the claimant, one issue being as to whether he could issue a three month warning order to someone because her attendance had been unsatisfactory due to sickness. The reply from HQ Londist contained the following:

“The “solution” to the sickness absences is to extend her probationary period. You certainly cannot put someone on a three month warning order for being sick! If you are suspicious as to her sickness absences, you should ensure she provides the relevant evidence or even have her examined by the RMO for a second opinion.”

The scepticism felt by Major McCaffrey towards the claimant is demonstrated by this extract from the email of 25 November, which he sent in response to the email from Londist.

“Performed adequately for the 1^st two weeks (without prejudice statement of this effect from RQMS). Failed to attend two x All Arms Storemans Cses despite selecting dates herself. Always at last minute and to do with her child – unlucky coincidence or premeditated?.....Every time an effort is made to establish medical issues, we are hit with a brick wall from herself and the medical authorities. There has been no proven ailment with the exception of stress which you or I could very easily and competently complain of. She has been examined comprehensively but if someone says that they are stressed then how can this be disproved?”

Evidence was given in respect of the claimant’s failure to attend one of the courses. Having heard the evidence, I am satisfied that it occurred due to an unexpected and late failure of foster carers’ availability to care for the claimant’s daughter.

I find that the written warning was unfair and unjust. The claimant’s “continued absence” was due to correctly certified medical unfitness for normal duties. Her “apparent predilection to seek reprisal for any apparent wrong doing that you have suffered” amounted to no more than two redress of complaints, which she had a right to make. There is merit in the allegations that the claimant was disruptive, no doubt by reason of her attitude to those with whom she worked and her willingness to take time off in lieu without proper consultation or agreement.

The final discharge was unfair and unjust. The warning period had expired. The claimant had been unable to return to her normal duties due to ill health. The Regiment knew of this as appropriate medical certification had been provided. The reliance on the redress of complaints simply serves to illustrate the paucity of the HAC’s reasoning. The warning and the discharge were acts on the part of the HAC that I regard as unacceptable and oppressive and had one purpose and that was to rid the Regiment of the claimant.

Events pre-5 April 2004

As to the allegation that Captain Chadwick called the claimant a “barrack room lawyer”, on the claimant’s own account, she was challenging him as to the manner in which he had calculated her periods of absence. Captain Chadwick does not recall making the remark on this occasion, but even if he did, in the context of the claimant’s complaint, I do not regard this as a valid allegation of harassment.

On 15 March 2004, the claimant spoke to Captain Chadwick, requesting clarity as to the nature of her job specification. The pleaded response is that Captain Chadwick told the claimant that she was a “barrack room lawyer”. That was the pleading in the original particulars of claim, dated 28 September 2007. By amendment dated 24 October 2008, the following was pleaded:

“by mid-March 2004 the claimant was concerned about the effects of the combination of her duties and the ceremonial stores and the additional driving duties were working out. The claimant told the CO Lieutenant Colonel Garrett and Captain Chadwick that she was becoming too tired doing both driving and store work and wanted a job specification. Further the claimant asked Major McCaffrey to provide a “forecast of events” so she could accommodate her child care issues on a long term basis.”

The amended allegation is denied by the defendant. If it was the case that by mid-March the concern of the claimant was such, that she raised her tiredness with both her CO and line manager, it is an allegation that I would have anticipated pleaded in the original particulars of claim, given the detail of that document. Lieutenant Colonel Garret remembers only one occasion when the claimant raised tiredness with him, it was when she picked him up at the airport and on that occasion he offered to drive. By mid-March the claimant was in receipt of a job specification and Major McCaffrey was already providing a weekly “forecast of events”. The nature of the role of a CO’s driver is that a driver has to be available at short notice. It is not always possible to provide a reliable forecast of events in advance. That was the nature of the job and the claimant, as an experienced driver, would have been aware of the fact when she applied for it. I find no substance in this allegation of harassment.

The Military Transport restroom was a room used by drivers and others. The claimant first used it in or around February or March 2004, when she began her driving duties. She was the only full time female driver to use the room, it was used by other women on drill nights. She found on the walls of the room, pornographic photographs of near naked women in sexually explicit poses. It appears they had been present since about 1994. In March, the claimant was clearing and repainting the room. She removed the photographs and put them on the window ledge. It was the evidence of Sergeant Craigie that the photos were taken from the ledge to a locker in the changing room. On a date and by a person unknown, the photos were replaced on the walls. On 2 April 2004, the claimant complained of this to Sergeant Craigie.

Between early April and September 2004, the claimant did not return to the room. In September 2004, when the claimant returned to the room, she saw that the photos were once more on the wall. She complained to Army Welfare Service, who gave her advice. Acting on that advice, the claimant took photographs of the photographs on 1 November 2004 and complained to RSM Finney. The photos were immediately removed and destroyed.

The photographs were pornographic and offensive. Lieutenant Colonel Garrett said that they would be offensive to anyone. It was the responsibility of those who had control over the room, to ensure that photographs of this sort were not present on the walls. In failing to remove the photographs, in particular between the initial removal in March 2004 and 2 April 2004, I am satisfied that the behaviour of the defendant was oppressive and unacceptable. Given that at this particular time the claimant was the only full time driver using the room, such actions can be construed as being directed at her.

In this judgment I have identified a number of individual incidents which are relied upon to support a claim under the 1997 Act. Many more are alleged, examples include the state of the female lavatory (pre-5 April 2004), the refusal of Captain Chadwick on 21 April 2004 to provide the claimant with transport in order to attend a medical appointment, an alleged refusal by a military clerk to assist the claimant with a computer program. I do not seek to minimise the other incidents but having read or listened to the relevant evidence, I am satisfied that none would satisfy the test enunciated by Maurice Kay LJ in Vekins, namely that the conduct was “oppressive and unacceptable”. There were faults on both sides. The claimant was a challenging employee, those who worked with her were increasingly frustrated by her attitude and conduct and on occasions, this showed. In 2003 to 2004, the claimant presented as a woman well able to challenge that which she did not accept and accustomed to military establishments where robust language could be used.

There are three incidents which do satisfy the test of “oppressive and unacceptable”:

The actions by Major McCaffrey on 17 May 2004, the issue of the final written warning and the discharge were all deliberate acts designed to end the claimant’s employment as the CO’s driver. In my view, these acts do not easily fit with the concept of negligence, namely a duty to exercise reasonable care for the safety of an employee, given that each act was premeditated with a specific aim.

As to the many acts alleged which postdate 5 April 2004, it is accepted that there is overlap between allegations of negligence and harassment. I repeat the observations made in paragraph 70 herein. As to negligence, I refer to what is said by Hale LJ in Hatton v Sutherland. In order for a common law duty to arise, there must be a foreseeable risk of injury. It is conceded by the defendant that prior to 5 April 2004; the “Hatton” foreseeability test would be difficult to satisfy.

When the claimant suffered her first panic attack, it was the defendant who arranged for her to access military medical services to better facilitate prompt and appropriate medical care. The claimant was provided with a personal adviser, an assisting officer by the Army Welfare Service. Her duties were divided. She either drove or she worked in the stores. She did not do both. I accept the defendant’s contention that during this period, they took steps to ensure that the claimant’s condition did not deteriorate.

On behalf of the claimant, it is submitted that the events at the HAC, from January 2004 to June 2005, caused the claimant to develop an adjustment disorder and depression. It is admitted that the claimant had pre-existing psychological problems and vulnerabilities. Dr D Alun Jones, a psychiatrist, was instructed on behalf of the claimant. Dr M Baggaley, a psychiatrist, was instructed on behalf of the defendant.

Both doctors agreed the claimant had considerable pre-existing vulnerability to developing a psychiatric disorder. They differed as to diagnosis. Dr Jones made a diagnosis of adjustment disorder with anxiety and depression. Dr Baggaley said that the claimant suffers from a recurrent depressive disorder.

The claimant has an extensive psychiatric history, which dates back to 1994. Her psychiatric records for the period of 1995 to 1999 record depression, dizziness, tiredness, sickness, head and neck aches and vertigo. In January 1997, the claimant was seen by a psychiatrist who did not find her to be clinically depressed. In January 1999, she sustained a back injury at work, which resulted in some months of certificated sick leave. The accident resulted in depression with mood swings, poor concentration, lethargy and irritability. The depression continued in 2001 and 2002, it being linked to the claimant’s difficulties at work and her daughter’s education.

On the 10 March 2003, a psychiatrist who had seen and assessed the claimant, wrote to her GP as follows:

“…been feeling depressed for the past nine years…worse over the past three years following an accident at work when she was working as a lorry driver for BP…currently working as a civil servant for the past six months…two severe upsets at work which she blames on the bad reference from her boss… her mood was subjectively low and objectively she appeared depressed…did not express any suicidal ideation…suffering from a depressive illness…started her on Prothiaden…would benefit from counselling…”

The claimant has been treated for many years with anti-depressant medication.

It is agreed that on 29 March 2004 the claimant suffered a panic attack when driving. Dr Jones stated that the severity and constancy of the pre-existing vulnerability, stress and depression has been greater since 2004. He attributes her present condition of adjustment disorder with anxiety and depression to the results of stressors, which she experienced in relation to her work. In particular, the hostility directed towards her from February/March 2004, the manner in which she was “sexually harassed with pornographic pictures”, the long unpredictable working hours were of particular stress to the claimant because of her home situation. Dr Jones is of the opinion that the disorder continues and cognitive therapy is necessary. It is of note that the claimant has in fact received such therapy.

Dr Baggaley examined the claimant on the first occasion on 1 March 2008. He could find no evidence that the claimant suffered from any psychiatric disorder. He diagnosed the claimant as suffering from a recurrent depressive disorder in the period prior to her joining the HAC. In Dr Baggaley’s opinion, the alleged bullying and harassment did not cause an increase in her psychiatric disorder. He stated that the claimant was very vulnerable from a psychiatric point of view and the role of CO’s driver was unsuitable for her because of its unpredictable nature and the long hours whilst having to look after her daughter.

Dr Jones and Dr Baggaley each gave evidence and spoke to their reports. Dr Jones was a consultant psychiatrist in North Wales from 1964 to 1995, when he retired. He has continued with clinical work since that date, this appears to be more in the nature of assessment, rather than clinical treatment. He prepared a number of reports for these proceedings. The reports rely heavily upon the witness statements of the claimant rather than upon detailed mental state examinations. Dr Jones told the court that on one occasion, he met with the claimant to see and assess her prior to compiling a report for these proceedings. The meeting took place in a corridor in the Royal Courts of Justice as Dr Jones was in the building on another matter. There were times in Dr Jones’ evidence when he appeared to take upon himself the role of advocate for the claimant.

Dr Baggaley is a consultant psychiatrist in current practice, employed by the South London and Maudsley NHS Foundation Trust. It was his evidence, accepted by both parties at the conclusion of the hearing, that there was no substantial difference between the diagnosis of adjustment disorder and that of depression. Dr Baggaley was unaltered in his view that the claimant’s depression had arisen before any alleged bullying or harassment. It was due to her unsuitability for the job of CO’s driver. Specifically it was the job itself, not the driving, the fact that the claimant was at the “beck and call” of the CO. In his reports and in his evidence, Dr Baggaley raised his concern that the claimant had failed to disclose her psychiatric history when applying to the HAC for employment. He said that had she done so, she would have been sent for a health assessment as a result of which, she would not have been given the same duties as she undertook from 1 March 2004.

As to the future, Dr Baggaley said that as the claimant had suffered from depression of a fluctuating character for the past fifteen years, she would always be vulnerable to further episodes. Having seen and heard the claimant in court, he was of the opinion that she was not presently suffering from a psychiatric disorder.

Having read the reports and seen both doctors give evidence, I prefer the evidence of Dr Baggaley, who impressed as an objective, practising clinician.

As to the events which post-date April 2004, specifically the meeting of 17 May 2004, the written warning, the discharge of June 2005, Dr Baggaley accepted that such events would exacerbate the existing depressive illness. Doing the best he could, he postulated a period of mild to moderate depression of two to three months duration in respect of each event. He saw the exacerbation as a blip, not as causing a fundamental increase in the severity of the disorder. Dr Baggaley does not believe that the claimant has suffered from depression since 2007.

I find that the panic attack suffered by the claimant on 29 March 2004, together with the period of anxiety and stress which immediately followed, represented a recurrence of her existing psychiatric disorder and is not attributable to any act on the part of the defendant.

The actions of Major McCaffrey at the meeting of 17 May 2005, the issue of the final warning and the administrative discharge were acts which caused injury and distress to the claimant. I also find that the pictures on the wall of the Military Transport restroom caused the claimant distress.

The damages I assess on the basis of the evidence of Dr Baggaley. In respect of the 17 May meeting, the warning and the discharge, he assessed each as an exacerbation of mild to moderate severity of the claimant’s depression for a period of 2 to 3 months. I allow a period of 9 months. These were to be seen as blips and not as a deepening of an existing condition. Any continuing symptoms are a manifestation of the claimant’s recurrent depression and are not attributable to the acts of the defendant. For these incidents, I assess damages in the sum of £5000. I allow a further £500 for the distress caused by the pornographic pictures.

The claimant sustained no actual loss of earnings until 15 July 2005. I accept the defendant’s submission, namely that as the claimant was unsuited to the role of CO’s driver, it was highly unlikely that she would have successfully completed her probationary period. It is likely that her employment would have been terminated in any event on or before April 2005. Her role in the ceremonial stores was not available by 15 May 2004. Accordingly, I find there is no continuing loss of earnings.

Claims have been made for travel expenses and complimentary medical treatment. The travel expenses related to visits to the GP’s surgery and for 50 taxi journeys following the claimant’s return to work in May 2004. An estimated £12 per journey is claimed. No receipts are available. Complimentary medical treatment, reflexology, massage and acupuncture are identified at an average cost of £40 per session. No documentation supports this claim.

Given the absence of documentation and specific dates, a precise calculation cannot be made for a period of 9 months represented by the exacerbation of the depression. I allow £500 for travel expenses and 2 sessions of treatment per month: £560.

There is none.

I assess general damages in the sum of £5500. I assess special damages in the sum of £1060. At the handing down of this judgment, I will hear submissions as to the appropriate rate and calculation of interest.