Claim No: TLQ/2009/1071
IN THE HIGH COURTS OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
BEFORE:
HIS HONOUR JUDGE HARVEY CLARK QC
(Sitting as a Deputy Judge of the High Court)
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BETWEEN:
MULLEN | Claimant |
- and - | |
ACCENTURE SERVICES LIMITED | Defendant |
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Mr Andrew Buchan (Instructed By Magrath) Appeared On Behalf Of The Claimant
Mr David Thomas For John Mcdonald (Instructed By Dwf Llp) Appeared On Behalf Of The Defendant
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Judgment
JUDGE CLARK QC:
Part A - Preliminary
The Defendants, Accenture Services Limited are a well known management consultancy. Amongst other services provided, the company assists clients with the introduction of new technology. In April 2004 the Claimant, Kevin Mullen, joined the Defendants as an analyst. On 14th March 2006, whilst working at the Defendants’ office in Leeds, the Claimant suffered a mental breakdown in the course of his employment. He never returned to work with the Defendants. Eventually, at the end of November 2007, his employment with the Defendants was brought to an end as a consequence of his starting work in early December 2007 as a computer programmer with the Royal Institute of Chartered Surveyors. 11 months later, however, he was dismissed from this employment. Since then he has been unemployed.
The Claimant brings an action for damages for personal injury and consequential loss on three broad grounds. First, he claims that while he was working at the Leeds office in the first two and a half months in 2006, he was victimised and bullied by his line manager, Mr Gareth Hall. He says that Hall’s behaviour was permitted and condoned by the project manager, Mr Gareth Everson. This behaviour caused him to suffer emotional distress and psychiatric injury as a result of which he was unable to continue working for the Defendants. Further, or in the alternative, the Claimant maintains that during this period in Leeds he was exposed to such stress at work that he developed a stress related illness, namely anxiety and depression, which effectively prevented him from remaining in the employment of the Defendants. Thirdly, he claims that, irrespective of any common law liability, the Defendants were in breach of Regulations 3 and 4 of the Management of Health and Safety at Work Regulations 1999 and, it is submitted on his behalf, that breach of the statutory regulations gives rise to an actionable claim which involves a less onerous test in respect of foreseeability and causation.
Section B - The Factual Background
The Claimant was born on 21st February 1980 in Ayrshire in Scotland. At the age of about four he was sexually abused by a neighbour. This incident apparently remains his most vivid memory of childhood. Academically, as a schoolboy, he did well. In 1997 he gained a place at St Andrews University to study computer science. At Christmas 1998, however, he came face to face with the man who had sexually abused him as a child. In January 1999 he reported symptoms of panic attacks to his local general practitioner in St Andrews (trial bundle page 930). The GP referred him to a psychologist (page 954). In evidence the Claimant denied experiencing panic attacks at that time, but did accept that he was referred to Dr Jane MacMillan. She reported in May 1999 (page 958) that he was “low in mood and experiencing anxiety.” She continued, “He presents as a very sensitive and intelligent young man who feels confused about his own sexual identity.” On three occasions that summer she treated him for his symptoms. In 2001 the Claimant received a 2:1 at the end of his degree course. While at university he had been physically active and in particular, participated in sky diving. In the autumn of that year he started a PhD in computer science at St Andrews. In 2002 he noticed a disturbance of his heart rhythm and in September consulted a cardiologist. He was suffering heart palpitations, but no significant abnormality was discovered (page 1015).
In August 2002, however, he reported to his GP (page 935A), “stress re departure of girlfriend overseas” and in May 2003 he was having problems establishing sleep patterns. Of more significance is an entry for July 2003 (page 935C), which reads:
“At a post-graduate assignment on 13th June, at which he was told his work was not going well. He had thought things were going rather well so this was a blow and he has not really got back to work since then; took three weeks off to reflect on it. Now back at work and all okay, but may need certificate.”
The letter dated 30th July from the GP to the university (page 982G) refers to the Claimant receiving medication for his depression. In evidence he said there was at this time a big problem with his project. Moreover, he said:
“I was unhappy and lonely. I had learned that I was gay and was coming to terms with my sexuality.”
In his report dated 23rd December 2007, Professor Tom Fahy, the consultant forensic psychiatrist, described the Claimant as (page 562):
“A highly intelligent and motivated person who creates a positive impression on interview. Nevertheless his GP records suggest that he is vulnerable to psychiatric symptoms at times of stress, especially following disruption to intimate relationships. It is clear that his emotional reaction to such events can reach clinically significant proportions.”
Dr Anthony Cleare, the consultant psychiatrist instructed on behalf of the Defendants, agreed with this assessment. In their joint report dated 15th June 2010 (page 598) the psychiatrists agree that the Claimant:
“Has a prior history of psychological vulnerability, evidence for this including previous anxious and depressive reactions to stressful life events and a history of childhood adversity. This vulnerability would have continued regardless of Mr Mullen’s experiences at work.”
In the autumn of 2003 the Claimant left St Andrews University whilst still only halfway through his PhD course. At the end of the year he applied for a job with the Defendants. His job application (page 1117) contained the observation:
“Concerned about lack of stability if need to settle. Not bothered by long hours.”
In January 2004 he was interviewed. In answer to a question in or before one of the interviews he stated that he had no current health issue or medical history (page 1125). In evidence the Claimant said:
“I divulged that I had been on anti-depressants in my medical history before I joined Accenture.”
In saying this he was referring to the answers he gave in an assessment form he submitted to a company called Previa, who carried out health checks on people applying to join the Defendants. This assessment form was produced during the course of the hearing. It should be emphasised straightaway that, for reasons which do not matter, the form was never seen by any employee of the Defendants. Further, any medical information contained on the form was not passed on to the Defendants. All the Defendants knew was the opinion of the independent occupational health adviser that the Claimant was “fit for specified employment” (page 1128).
Nevertheless, the answers given by the Claimant to the questions on the assessment form are of some relevance. In answer to the question, “Have you been absent from work for any medical reason for more than 10 days in the past 12 months.” He replied, “No.” This answer ignored or overlooked the fact that for three weeks the previous summer he had, because of depression, not been working on his PhD at university. Of greater significance were his answers to questions 17 and 18:
“Question 17: Have you received treatment for anxiety/depression or other mental health disorder? Answer: Yes. I had insomnia and became depressed after I lost my partner of seven years, whom I had been with since we were at school together. My symptoms were directly related to a difficult event in my personal life. I am no longer receiving treatment.
Question 18: Have you had treatment or support from a psychiatrist, psychologist or counsellor?
In his evidence the Claimant said:
“I accept those answers are not full and are not entirely truthful. I was depressed, because I was lonely and wanted to meet another gay man.”
In evidence Professor Fahy said:
“The answer to question 18 is incorrect, while his answer to question 17 does not present an accurate picture of his medical history.”
I accept that the Claimant was, quite understandably, reluctant to reveal in a medical questionnaire the fact that he was homosexual. In addition, he naturally wanted to present as favourable a medical picture of himself as he could. On the other hand, his answer to question 18 was quite simply untrue. He had received treatment and support from the psychologist, Dr Jane MacMillan, during the spring and summer of 1999. Further, his answer to question 17 was misleading in that it suggested his insomnia and depression were a direct and temporary response to the break-up of a romantic attachment formed at school. As I have indicated, the truth was rather different, particularly insofar as his depression the previous summer had been triggered by criticism of the quality of his work. In the event the answers he gave both to the questionnaire and under cross-examination about it, did not fill me with confidence about his reliability as a witness of truth.
The Claimant was duly recruited by the Defendants and started work with them in April 2004. All the evidence suggests that the Defendants can properly be described as a performance-driven company. They recruit intelligent young graduates, especially, but not necessarily, those with expertise in computers and/or business skills. Initially the recruits start as analysts. They are assigned to various projects. All the while they are being assessed. If an analyst does well, then after two or three years they can reasonably expect to be promoted to the position of consultant. If a consultant is successful, then after another two years or so he or she will be promoted to the rank of manager. Those who reach that position will then be looking for further promotion up the hierarchy of a company with worldwide interests. It is a company which attracts able young people with ambition, drive and determination. They can expect to work long hours and under pressure to achieve results. Salaries are impressive. They reflect the level within the company structure an individual has reached.
In his statement of evidence the Claimant said (page 83):
“From April 2004 I was generally engaged on location working for the Defendant’s clients on the implementation of IT solutions. From April 2004 until December 2004 I worked on a desktop renewal project for Cable & Wireless Plc. The objective was to replace 20,000 desktop PCs and laptops in their offices all over the country. In January 2005 until April 2005 I was again engaged on a project for Cable & Wireless. This time I was working on an analysis phase of a customer relationship management project to replace existing systems. From April until June 2005 I was once again engaged on a project for Cable & Wireless. This time I was concerned with the functional design and implementation of the data migration of multiple systems onto one platform. From June until November 2005 I was engaged on a project for (the Williams) Formula 1 Team. This was an asset tracking system to allow the team to track car components, from their production to storage to the wind tunnel testing environment.”
Pausing there, during the course of this case not only has there been reference to technical language involving computers, but in addition various witnesses and documents have referred to matters in what might be described as management-speak jargon. In the course of this judgment I shall try wherever possible to avoid using technical language or jargon, but to speak in plain English, intelligible, I hope, to the average, educated person.
Antonia Watson was the senior manager with the Defendants, but no longer works for the company. In her statement of evidence (page 506) she observed:
“Kevin worked for me on a telecommunications project shortly after he joined Accenture. We always got on very well. Kevin performed above competency for his role and I was very pleased with the work he did for me. That is not to say that he is the best that I have ever worked with, but he was definitely not the worst either. He was, however, easily agitated and often rather hyper in his behaviour and needed reining in. Kevin tended to make a mountain out of a molehill and became easily agitated with the task in hand. I regularly had to calm him down and take him through matters step by step.”
Under cross-examination the Claimant said:
“I don’t recall getting agitated. I was not hyper in my behaviour.”
He assured the court that when she gave evidence Mrs Watson would withdraw these observations if she were true to her oath. Mrs Watson, however, did not do so. She agreed that in 2004 she had thought a great deal of him, but, she said, the observations in her statement were a “fair and accurate” reflection of the Claimant’s performance and characteristics when he worked on the first Cable & Wireless project. Mrs Watson came across as an independent-minded witness who had no particular axe to grind on behalf of the Defendants. I accept her evidence. It gave a helpful clue to one’s understanding of what happened when the Claimant joined the project based at the Leeds office of the Defendant company.
Before I set the scene to enable the evidence relating to that period to be considered in detail, however, I should refer to two documents, which the Defendants call “Global assessment tools” or “GATs”. As I have said, all their employees are continually being assessed. At the end of each project or year an employee receives a GAT, which should include a balanced assessment of the performance of that employee during the previous assignment or year, as the case may be. In November 2004 the Claimant received a GAT with a moderately encouraging assessment or “contribution rating” of “sustained contribution” (page 613). By May 2005 his “contribution rating” had risen to “sustained contribution plus” (page 623). He seems to have done well on the Williams Formula 1 assignment, although no specific “contribution rating” was given to him. A table of contribution ratings is to be found at page 74H. “Sustained” and “High sustained” come below, “Outstanding” and “Exceptional.”
Daniel Downing is a senior manager with the Defendants. In the latter part of 2005 he was engaged as a programme manager on the NHS project. This was a massive undertaking on the part of the Defendants to help introduce computer technology to our National Health Service. I understand that for a variety of reasons, which have no present relevance, in about 2008 the Defendants pulled out of the NHS project. Be that as it may, as part of the overall NHS project, in the autumn of 2005 the Defendants were engaged in the Emergency Care Solutions Project, or “Ambulance Project” as it was called and how I shall describe it. Essentially, the Ambulance Project was a scheme to introduce laptop computers or “tablets” into ambulances so that paramedics could record on computer their findings at the scene of an accident or other life-threatening trauma. That information would come upon the screen of the nearest appropriate hospital department so that the emergency trauma team would know in advance what equipment and specialists were required. The use of computers would avoid the paramedics having to write out lengthy hand-written appraisals or reports. The software for the scheme was being produced in Canada by a company called Medusa. The Defendants were engaged to liaise with Medusa and the Ambulance Service and to put the scheme into operation. The Ambulance Project was, as I understand it, based at the Defendants’ office in Leeds. It was to be trialled with, inter alia, the South Yorkshire Ambulance Service. The project manager was Gareth Everson. Mr Downing had been sent the CV of the Claimant. He thought the Claimant might be the kind of specialist analyst who would be a useful asset to Mr Everson’s team. In November 2005 he was in touch with Everson. In December Everson decided to take the Claimant on as “build lead” within the team.
It is important to set out briefly the Ambulance Project Team structure. There were four sub-teams working within the project: the functional team, whose particular role was to liaise with the client to find out exactly what was required; the build team, whose role was to build the software components onto the test servers each time Medusa either produced new software or amended software so as to deal with a technical glitch or bug, as it was called; the test team, whose role was to test new software releases for bugs and to provide feedback to Medusa; and the service team, who were responsible for the live system after it had been built and deployed by the build team. I am conscious that this is a simplification of the roles of the four teams, but it is also clear that there was considerable overlap between the work done by each of the teams. For instance, there was close cooperation and interaction between the build team and the test team.
In terms of personnel, under Gareth Everson (the project manager) were Gareth Hall (head of the build team), Louise Davis (head of the test team) and Jean Liao (head of the function team). The Claimant worked under Mr Hall. The Claimant had two subordinates, Sandeep Chotal and Thomas (TJ) Begley. Also within the build team were Paul Bloomfield, Thomas Brightwell and Carl Robinson. All three had specialist roles. Louise Davis had four subordinates in her team including Karen Kinsella. The layout of the open-plan office in Wellington Street, Leeds, is helpfully set out in a diagram at page 882. It can be seen that Gareth Hall sat alongside the Claimant on the other side of the desk partition. Gareth Everson faced Gareth Hall, and Louise Davis and Jean Liao were close by. Carl Robinson and Karen Kinsella were slightly further away.
At this stage I am simply going to summarise, for the most part, the key events occurring between December 2005 and the late evening of 14th March 2006. At the time the Claimant lived in London. He spent the week before Christmas on the project in Leeds. He then had his Christmas/New Year holiday. After two days of illness he returned to Leeds on Thursday, 5th January. Thereafter, he travelled up to Leeds each Monday morning returning on Friday afternoons. But in the relevant period he took a snowboarding holiday in the Alps between Saturday, 21st and Monday, 30th January and a long weekend with his partner in Barcelona between Saturday, 18th and Tuesday, 21st February. Pausing there, in April 2005 the Claimant had met and had formed an intimate relationship with a young man called Roman Podolczuk. From that time on they had been living together in a flat in South London. In his statement of evidence Mr Podolczuk described the Claimant as a hard-working, but fun-loving, individual who had been fit and healthy. He went on to describe (page 433) how, from January 2006 the Claimant had become increasingly stressed as a result of working on the Ambulance Project. Weekends had ceased to be the happy times they had been the previous year.
To revert to the key events from January 2006 onwards, on about 16th January an incident occurred involving a conversation between the Claimant and Mr Everson on the subject of structured query language (“the SQL” incident). The significance of this incident will be considered in due course. Shortly afterwards the Claimant saw Mr Downing to discuss what had happened. On the night of Thursday, 19th January, the Claimant and his team worked until morning to introduce a new software program called Release Two Plus onto the computers used in the trial area. This “cut over” to the new software went successfully, but in the weeks that followed glitches began to emerge in the system when in practical use. On his return to the office on 31st January the Claimant received a briefing on these problems. Over the next few weeks he did his best to help solve such problems, albeit in his own particular way, a matter to which I shall return. It is clear that many team members, particularly those on the technical side, were working long hours to try to resolve the problems that were arising.
During February, on a date which is unclear, an incident occurred when a laptop containing confidential information concerning patient medical records was left on a desk over the weekend. The Claimant had responsibility for ensuring it was locked away securely. On the Monday morning both Gareth Everson and Gareth Hall raised the matter generally within the office. This event has been described as the “tablet” incident. At about the same time in February Karen Kinsella was found crying in the ladies lavatory. She said she spoke to Jean Liao and complained about the way the Claimant was being treated by Gareth Hall.
In early March the Claimant asked Gareth Hall if he could have feedback on how he was performing. On 6th March Hall sent Gareth Everson an email (page 1636) listing areas where there was room for improvement in the Claimant’s performance. On the same day he asked the Claimant for a list of the positive contributions and achievements the latter felt he had made. The Claimant replied by email to Mr Hall, email dated 7th March (page 1639). On the morning of 14th March, Hall sent the Claimant an email listing under various topics the latter’s “strengths” and weaknesses, or “areas for development” as they are described. This important email, which amounted to interim feedback, or perhaps a provisional GAT, is to be found at page 1648. It was intended to form the basis for further discussion between Gareth Hall and the Claimant.
In her statement of evidence Antonia Watson said (page 507):
“I was Kevin’s career counsellor. This is a role that I took seriously and which I know Kevin was pleased that I had taken on. Having worked for me on the Telecommunications Project Kevin requested that I take on the role after he moved into the same area of the consulting workforce as me. I felt that we had a good relationship and I always tried to be as supportive as possible in my role. Kevin knew that I was always there for him. I made sure that I made contact. I did get in touch with him every few weeks to check that everything was okay.”
Pausing there, in his evidence the Claimant doubted whether Mrs Watson had actually contacted him during the period he was on the Ambulance Project. Be that as it may, Mrs Watson continued (page 508):
“I do recall that he told me that he was having a hard time with his manager Gareth Hall, not long before he left Accenture. I pressed him further on this issue and I remember saying that I thought we should meet up. I had a lot on myself at the time and, therefore, asked Kevin if it was okay if we put the matter off until the next week when we would also be able to meet in person rather than just chat on the phone. He said it was fine to wait until the following week. I was quite harsh on myself afterwards when I found out that he had gone off work, but I have gone over and over what he said at the time and there was nothing to alert me to the fact that I needed to speak to him or action anything urgently at that stage.”
In evidence the Claimant said:
“I contacted Antonia Watson, because I knew I was not going to get an unbiased GAT. I agreed to see her the following week. I did not know I was going to have a mental breakdown.”
It would seem that the Instant Messenger emails between the Claimant and Mrs Watson were on 13th or 14th March 2006.
In early March David Downing contacted the Claimant to see if he would be prepared to do a presentation on his work at an Accenture conference in Madrid. The Claimant declined, but offered to prepare some slides for the presentation. At nine o’clock in the evening of 14th March he sent these slides by email to Downing (page 2995). There is nothing in the email to suggest or foreshadow what was to happen later that evening. Downing’s encouraging reply came at just after ten o’clock. In the meantime the Claimant had sat down at his desk in the office and prepared a “to do” list. In his statement of evidence at page 125 he said:
“I sat looking at the list trying to figure out how I was going to get everything done. As I stared into the list I think I eventually realised that rectification of the position in time for the final GAT was simply not going to be possible. There was no way that I could realistically manage the tasks that were before me. I started thinking about my career counsellor and the members of my group and how let down and disappointed they would be when they received my GAT stating “Does not meet expectations.” I started thinking about my career and how such a rating would set me back years. I racked my brains thinking about how I could turn the situation around. A wave of panic then washed over me and I found myself grabbing the arms of my chair very tightly.”
This was the start of his mental breakdown. Fortunately, a colleague was in the office and an ambulance was summoned. The Claimant was taken to hospital and checked by the doctors. They advised he take two weeks off work. What happened after that is set out in detail in Professor Fahy’s report at page 552. After going on leave the Claimant’s mental health deteriorated sharply. For some time he remained a virtual recluse in his flat. His relationship with Roman Podolczuk suffered. Eventually the strain was such that the relationship came to an end. The psychiatrists agree that the Claimant (page 600):
“Experienced clinically significant anxiety and depressive symptoms from March 2006 to March 2007.”
From March 2007 onwards there is a divergence of opinion. Professor Fahy believes the Claimant’s heightened sensitivity, loss of confidence and diminished resilience continued for an unspecified period, but had disappeared by the beginning of 2010. Dr Cleare believes it lasted for no more than perhaps six months after March 2007 (page 601). I shall return to this issue in due course.
Before I move on, however, I shall point out a curious, but possibly telling, piece of evidence arising from the psychiatrists’ reports. As I have indicated, the Claimant was dismissed from his employment with the RICS. His letter of dismissal (page 421) makes it clear that the reason for this was that his performance did not meet “the requirements that the position demands.” When he saw Professor Fahy in January 2010, however, the Claimant said that he had been made redundant (page 568). Under cross-examination the Claimant was asked why he did not tell Professor Fahy the truth. He said:
“I didn’t think I was telling a lie. When I said I was made redundant I was basically saying I had lost my job. I wasn’t deliberately lying about it.”
To most normal people there is a significant difference between saying “I have been made redundant” and “I have been dismissed from my employment”. The Claimant’s inability to understand the difference and his unimpressive explanation in evidence once again left me with a significant doubt as to whether he was a credible, reliable witness.
Before moving on to outline the legal framework within which to judge cases of this nature I should recite in short form what happened as a result of the Claimant submitting a formal notice of grievance to the Defendants. The relevant documents are to be found between pages 737 and 926. The Claimant’s grievance letter dated 16th May 2006 extends to 68 closely-typed paragraphs (page 737 to 746). Belinda Berger, a senior human resources manager with the Defendants, was assigned to investigate the matter. At every stage full notes were taken and transcribed. Mrs Berger interviewed nine witnesses as well as the Claimant. They included four witnesses, Nayyar, Mistry, Begley and Bloomfield, who have not given evidence in the present proceedings. Her detailed report is to be found at pages 808 to 821.
Mr Andrew Buchan, Counsel for the Claimant, invites me to pay careful regard to Mrs Berger’s findings and to take them very much into account when forming my own judgment on the evidence. He submits that under the Civil Evidence Act they are admissible documents of record. Moreover, findings by a senior personnel manager within a few months of the relevant events cannot and should not be lightly disregarded. Mr John McDonald, Counsel for the Defendants, accepts that the various documents are admissible, but he submits I should pay little or no regard to the findings by Mrs Berger. The evidence before her differed from that in front of this court; in many instances one does not know how questions were actually framed; and it is difficult to know exactly from Mrs Berger’s report what exactly she thought about the reliability of the different witnesses, a crucial consideration for the court in the present proceedings.
In resolving this argument I propose to take a middle course. I cannot and do not ignore the findings by Mrs Berger. I have read them and take into consideration in particular her conclusions on pages 818 and 819. Nevertheless, I am satisfied that I must decide the present case primarily on the evidence given before this court. I do not propose to place much weight on the content of transcripts of interviews with possible witnesses who have not given evidence in front of me or, who are not the subject of Civil Evidence Act notices. For the record, the witnesses for the Claimant in the present case have been the Claimant himself, Karen Gilholm (formerly Kinsella), Roman Podolczuk, Professor Fahy and, by way of Civil Evidence Act notice, Carl Robinson. The latter is currently in China and would have given oral evidence over a video link, but for the fact that the Chinese authorities, almost at the last minute, refused him permission to do so. In the circumstances I do regard him as a witness in these proceedings. As for the Defendants, their witnesses have been Gareth Everson, Gareth Hall, Antonia Watson, Jean Liao, Daniel Downing, Louise Davis and Samantha Clark.
The Claimant, in fact, was dissatisfied with some of Mrs Berger’s conclusions. He appealed against her finding that Messrs Everson and Hall had been unintentionally insensitive (page 822). An appeal panel was convened. It interviewed Antonia Watson and re-interviewed a number of other witnesses. Its findings are set out on page 831. Again, I have read and shall take into consideration these findings, but I propose to decide the case primarily on the evidence given before this court.
The appeal led to (i) an informal warning being given to Gareth Everson about his management style and, (ii) a formal disciplinary hearing involving Gareth Hall in relation to his “alleged aggressive management style” (page 836). At this disciplinary hearing the panel had all the various witness statements and other documents arising from the grievance procedure and the appeal. Mr Hall, however, was allowed to call a number of witnesses in his defence. Apart from Louise Davis and Jean Liao, none of them have given evidence in the present proceedings. At the conclusion of the hearing the panel did not find any evidence to support the claim of bullying and victimisation, but felt that Mr Hall had used inappropriate language at work (page 867). As before, I have read and shall take into consideration these findings, but I do propose to decide the case primarily on the evidence given before this court. The Claimant has roundly criticised the fairness of the disciplinary hearing on the ground that it heard oral evidence on behalf of Mr Hall, but no oral evidence in support of the case against him. This court, however, is not an appeal tribunal nor is it acting in an administrative court capacity. In the circumstances I propose to say no more about the fairness or otherwise of the disciplinary hearing. For present purposes this matter is irrelevant.
(The short adjournment)
Section C - The Legal Framework
The leading authority in this kind of case is Hatton v. Sutherland [2002] EWCA Civ 76 the headnote of which reads:
“Claims by employees for damages in respect of psychiatric injury caused by stress arising from their employment should be considered in accordance with the ordinary principles of employers’ liability applying the same test in all cases, whatever the employment, of whether the kind of harm to the particular employee was reasonably foreseeable and, once the risk of harm to health from stress in the workplace was foreseeable, whether and in what respect the employer was in breach of his duty to take reasonable care and whether that breach of duty had caused the harm suffered.”
In paragraph 43 of her judgment, Lady Justice Hale helpfully summarised some practical propositions which included:
“(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
(3) Foreseeability 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.
(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.
(7) 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.
(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.
(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services is unlikely to be found in breach of duty.
In her summary at sub-paragraph 5, Lady Justice Hale posed a series of factors likely to be relevant in answering the threshold question. Of particular pertinence to the present case are the following matters:
“Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Are there signs that others doing this job are suffering harmful levels of stress? Has this employee a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work?”
These practical propositions have been generally accepted and followed in cases involving work-related stress. They do not, however, have the force of statute law, see, for instance, paragraph 28 of the judgment of Lady Justice Smith in Dickins v. O2 Plc [2008] EWCA Civ 1144. For instance, in that case and in Dow v. Intel Corporation [2007] Industrial Cases Reports 1318, the Court of Appeal observed that the reference to counselling services in Hatton did not make such services a panacea by which employers can discharge their duty of care in all cases. This is particularly relevant in the present case. The existence of Antonia Watson, the Claimant’s career counsellor, and her contact with the Claimant are factors to take into account, but they do not in themselves absolve the Defendants from liability for work-related stress.
In considering the present case I have found it particularly helpful to have in mind the words of Simon Brown LJ in Garrett v. Camden [2001] EWCA Civ 395, where at paragraph 62 of his judgment he observed:
“It is not easy to make good the cause of action embarked upon by Mr Garrett in this case, a claim in negligence for damages for injury, loss and damage sustained consequent on work-related stress. 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: be it simple overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was 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 Bonser v. UK Coal Mining [2003] EWCA Civ 296, Simon Brown LJ reiterated these caveats at paragraph 30 of his judgment:
“It is not enough for employers to have foreseen stress; it must be foreseen that illness would follow. Overwork of itself is likely to lead to stress. It is altogether less likely to lead to the breakdown of the stressed employee's health. For that to be foreseen, the claimant will generally need to establish, not only that the employers knew that he or she was being overworked, but, in addition, one or other of the following circumstances: either (i) that the employers knew that the individual employee was, for some reason, particularly vulnerable to stress induced illness; or (ii) that the claimant was manifesting clear signs of some impending harm to health before eventually illness followed.”
In Bonser’s case the Court of Appeal referred to the need for a Claimant to establish an indication evident to a reasonable employer of “impending harm to health.” Ward LJ said at paragraph 25 that the Claimant in that case:
“... did not manifest by her conduct, or by complaint, anything which in my judgment sufficiently put her employer on notice that she was vulnerable to imminent risk of injury to her health.”
Six weeks earlier the Court of Appeal in Pratley v. Surrey County Council [2003] EWCA Civ 1067 took a similar approach. The Claimant in that case suffered a mental breakdown from overwork as a care manager, but at paragraph 23 of the judgment Mance LJ said:
“What was communicated, foreseen and foreseeable on both sides, was a future risk, if work overload continued. What was unforeseen and unforeseeable was the immediate collapse that occurred, even though this can now be seen (in the light of subsequent events and the psychiatric evidence before the judge) to have been caused in fact, at least to some material extent, by the failure to take steps to introduce stacking (of new care cases) upon the Claimant’s return to work.”
Mr Buchan, has in the course of his submissions referred me to a number of Health and Safety Executive publications, either listing the factors which employers should take into account in identifying the risk of work-related stress or giving guidance to employers and employees with regard to recognising possible mental health problems. These publications are of undoubted interest, but in my judgment they only have a limited bearing on the issue in the present case, namely whether there were clear signs of impending or imminent harm to the Claimant’s health. As Ramsey J observed in Sayers v. Cambridgeshire County Council [2007] IRLR 29 at paragraph 151:
“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.
In the present case there is the additional allegation of victimisation and bullying. The general principles relating to stress claims are similar to those in respect of bullying - see Clark v. Chief Constable of Essex [2006] EWHC 2290 (QB). Two main issues arise: (a) is the conduct complained of sufficiently serious to constitute bullying and, (b) are there “real warning signals” of impending harm? This was a phrase used by Gray J in Barlow v. Borough of Broxbourne [2003] EWHC 50 (QB) at paragraph 26. As in the present case, in Barlow the court had to consider allegations of both bullying and work-related stress. The allegations of bullying were particularly unpleasant, but the court rejected the claim that they amounted to an actionable breach of duty on the part of the employer. In paragraph 26 Gray J observed:
“I should add that, even if I had felt it right to hold that the Defendant had, through its officers, bullied or victimised the Claimant I would still not have held that the Claimant had established the right to damages. The reason is that I am unable to accept that the Defendant, through its officers, either knew or ought reasonably to have known or foreseen that the conduct complained of would cause the Claimant harm. It was not suggested on behalf of the Claimant that any of the officers had actual knowledge that such harm would result. I do not think that those officers ought to have foreseen the harm, which in the event occurred. There were no real warning signals.”
What amounts to bullying? In Waters v. Commissioner of Police [2000] 4 All ER 934, Hutton L observed at page 943E:
It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers.”
In H v. Isle of Wight Council [High Court 23 February 2001] Wright J said at page 21 of the judgment:
“The criterion of what does or does not amount to bullying in any given circumstances is not to be judged solely by the subjective perception of the victim himself, but involves an objective assessment of the observed behaviour taken in conjunction with any apparent vulnerability in the target of the behaviour complained of.”
This is a helpful observation in the context of the present case, because the Claimant clearly believes he was subjected to bullying. At one point in his evidence he described the treatment meted out to him by Gareth Hall as “psychological torture.” My task, however, is to go beyond the Claimant’s perception and to assess the facts as objectively as possible.
Mr Buchan has drawn my attention to the cases of Green v. D B Services UK Limited [2006] EWHC 1898 and Veakins v. Keir Islington Limited [2009] EWCA Civ 1288. It is noteworthy that in both cases there was an allegation of harassment. In Green this was linked to an allegation of bullying, but in Veakins the Court of Appeal focuses its attention on the meaning of harassment in the context of s.11 of the Protection of Harassment Act 1979. It accepted the test that harassment involved conduct that was “oppressive and unacceptable” as opposed to merely unattractive, unreasonable or regrettable (see paragraph 11 of the judgment of Maurice Kay LJ). The court held that the unchallenged evidence of the Claimant (see paragraph 14) involving allegations of victimisation, callousness and utterly unreasonable and extraordinary behaviour did amount to “oppressive and unacceptable” conduct sufficient to sustain criminal liability for harassment (see paragraphs 15 and 16) and, that the presence of malice makes satisfaction of the “oppressive and unacceptable” test easier to achieve (paragraph 16).
In the present case malice is not alleged. Nor is harassment alleged. Quite how far an allegation of bullying has to reach the “oppressive and unacceptable” test is less clear, but I am inclined to adopt the approach suggested by Lady Hale in Majowski v. Guys and St Thomas NHS Trust [2007] 1 AC 224 at paragraph 66, when she said:
“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.”
In the case of Green, Owen J had no doubt that the behaviour of which the Claimant in that case complained crossed the line by a considerable margin (paragraph 99):
“The Claimant was subjected to a relentless campaign of mean and spiteful behaviour designed to cause her distress. .... I am satisfied that the behaviour amounted to a deliberate and concerted campaign of bullying within the ordinary meaning of that term. Her perception of her treatment at the hands of the group was not in my judgment distorted by her childhood experiences. That is clearly demonstrated by the evidence that others were bullied in similar ways. I am also satisfied the behaviour of the four women amounted to harassment within the meaning of the 1997 Act. It occurred with great frequency, was targeted at the claimant and was calculated to cause her distress. On any view the behaviour of the women was oppressive and unreasonable.”
So Green provides an instructive example of what may constitute bullying within the ordinary meaning of the term. It is a useful yardstick by which to judge conduct in the present case.
Finally on the law I turn to the statutory provisions under the 1999 Regulations. To reduce what is becoming a lengthy judgment, I do not propose to set them out here. They are conveniently to be found at paragraphs 4 and 5 of the amended Particulars of Claim. Regulation 3 effectively requires an employer to consider any applicable statutory provisions, contravention of which would expose an employee to risks to health and safety and then to consider what measures should be taken to avoid contravention. Regulation 4 is only material in a case in which an employer has in fact implemented preventive and protective measures. Since the complaint in the present case is that the Defendants effectively did nothing, Regulation 4 can have no application here.
In his closing submissions Mr Buchan drew my attention to a document, which had not been considered in the course of the evidence, namely a risk assessment carried out on behalf of the Defendants at the office in Leeds in December 2005 (page 3105). At page 3133 there is reference to the stress levels being “tolerable.” Mr Buchan submitted that since the evidence suggested that after Release Two Plus went live in January the stress levels increased, there was a failure on the part of the Defendants to carry out a further assessment at the premises. He further submitted that once there was a proven breach of Regulation 3 it was unnecessary to prove that the particular harm suffered by the Claimant was foreseeable. This was a somewhat surprising submission. It appeared rather like the proverbial rabbit out of a conjurer’s hat. I would have expected it to have been explored with the Defendant’s witnesses, notably Daniel Downing and Samantha Clark. The latter in particular is a senior personnel officer who gave evidence about the Defendant’s approach to health and safety and the assessment of risk. If asked she might well have said that she did not consider there had been a material change in circumstances between December 2005 and February or March the following year. After all, the Ambulance Project had been running for some time and so far as I am aware Release One and Release Two had been put into operation on a trial basis at an earlier stage. The mere fact that the Defendants’ risk assessment indicated a regular monthly reassessment is neither here nor there if in truth the broad risk of employee stress did not materially change.
Putting these concerns to one side, however, I reject the second limb of Mr Buchan’s submission. It cannot be right that if there is a breach of Regulation 3 at a workplace any employee who suffers psychiatric illness in the relevant premises is by virtue of that breach entitled to compensation from his or her employers. There must be foreseeability on the part of the employers in respect of the particular illness suffered by the particular employee. If it were otherwise a coach and horses would be driven through the careful enunciation of the law in Hatton and the other appeal court cases referred to in this judgment. The clear-cut law on causation would be bypassed. I am fortified in taking this view by the decision of His Honour Judge Seymour QC in Paterson v. Surrey Police Authority [2008] EWHC 2693 (QB) where at paragraphs 110 and 111 he rejected a similar argument submitted under the Working Time Regulations 1998. Further, I cannot help but point out that Mr Buchan seems to have advanced the same argument in Sayers v. Cambridgeshire County Council (ibid) (see paragraph 149). But, at paragraph 152 Ramsey J turned to consider the crucial question as he saw it in that case, namely was there sufficient evidence to make the psychiatric illness suffered by Mrs Sayers reasonable foreseeable to the Council. I shall adopt a similar test on foreseeability in the present case.
Section D - The Factual Issues
It is the Claimant’s basic case that during the relevant period, between January and March 2006, he was victimised and bullied by Gareth Hall. He said in evidence that he did not expect to be subjected to the kind of treatment he did receive. Had he known what to expect he would have never joined the Defendants in the first place. His evidence was to the effect that at various times during the two month period he was humiliated in front of other members of the staff. He was shouted and sworn at regularly by Mr Hall. He was put under immense pressure to solve any problems arising from the use of the computerised system and, despite working long hours and losing sleep, nothing he did seemed to satisfy his manager. The Claimant suggested that the interim feedback (page 1648) clearly shows personal bias against him by Hall.
In assessing these claims I am going to start by referring to an observation made by Antonia Watson in her statement of evidence at paragraph 17:
“The problem with many people, who join an organisation containing a lot of high flyers like Accenture, is that they are used to being in the top tier among their circle of friends or colleagues. When, however, they are put together and compared with others, some of whom are considerably brighter, their own flaws can be highlighted. Some people react positively to this and rise to the competition, whereas some people find it difficult to accept.”
Having seen and heard the Claimant give evidence I am entirely satisfied that when he joined the Ambulance Project he believed that he should be promoted sooner rather than later to the level of consultant. He had energy, commitment and self belief, and he was confident he could prove his worth to his superiors. What he did not appreciate was that, in the first place, his technical abilities were more limited than he thought and, secondly, his adverse reaction to advice or criticism tended to make matters worse.
Louise Davis was in a similar position to the Claimant. She was a bright young university graduate (without a computing background) who had joined the NHS Project in November 2004. As test team lead in the early part of 2006 she liaised regularly with Gareth Hall and the Claimant and sat at a desk very close to them and Gareth Everson. I have no doubt that she was speaking the truth when she said in evidence:
“I agree that after Release Two Plus went live we were under a great deal of pressure, but at times Kevin was slow to grasp the concepts which I would have expected him to grasp more quickly. The whole team was trying to identify the bugs in the system, but at times there was general frustration at Kevin’s slowness. He quite often followed a different path than that suggested to him in order to resolve matters. I agree that both Everson and Hall found him frustrating. They displayed their frustration by talking to Kevin directly rather more than would normally be the case, but I never heard either man swear directly at him. Both Hall and Everson had a tendency to use the F word, but only at situations, not at anybody in particular. Their language was forceful, sharp, brisk and clear. Yes, I did feel we were carrying Kevin within the team and there were times when people were frustrated by Kevin’s attitude or slow response, but I never heard anything said to or directed at him in a cruel, mean or vindictive way. On a number of occasions Gareth Hall would go into a separate room with Kevin to talk things through. I was quite aware that neither Everson nor Hall thought he was coming up to expectations with his performance. Kevin would quite often be given advice to do something in a particular way and he would not heed that advice and the way he reacted facially indicated that he was not appreciative of the comments which had been made to him.”
I found this evidence from Louise Davis compelling. It fitted into the general pattern which, with one notable exception, to which I shall refer, emerged during the course of the hearing. I accept that Miss Davis has been and remains a valued employee of the Defendants. She has now reached the status of manager and will no doubt go further, but I detected nothing to suggest that she was motivated by ill-will or spite on the one hand, or loyalty to the company on the other, when giving the evidence she did. Her evidence was confirmed by Gareth Everson the project manager who said:
“Kevin told me he was skilled in key areas on various technical issues, but after he joined the team some of the questions he asked suggested his skills were not as good as he had previously indicated. He was not living up to expectations on the technical side and this was somewhat surprising and disconcerting. Yes, I valued certain aspects of his work quite highly - his commitment, his enthusiasm, his desire to be successful were all very admirable and we were really pleased, but I would assess his performance overall as reasonable, but not outstanding.”
Gareth Hall also spoke about the need to give the Claimant coaching:
“There were incidents when he had to be given coaching, which I would not have expected in a person of his experience and he had an inability to organise himself and his team. But the real problem I had with Kevin was that he would go down a different route. The vendor (Medusa) would suggest a particular way of solving a problem and we were instructed that this should always be the first port of call, but Kevin would often go down a different route and would get so focused on the issue himself that his team were left not knowing what to do. Kevin would often challenge Medusa’s instructions. He always thought he knew best. I would disagree and we would have conversations on this in the office. Where something of importance arose I would take him into a separate room and speak privately. This would happen if, when I asked him to do something, he argued with me or otherwise dismissed it.”
I broadly accept the evidence of these witnesses. The picture they present coherently explains how events unfolded. The other side of the coin, however, came from Karen Gilholm (formerly Kinsella) who graphically described Gareth Hall as an aggressive bully. He “singled Kevin out and was horrid and quite cruel and mean.” Having seen Mr Hall for the better part of a day in the witness box I do not accept Mrs Gilholm’s opinion. I do not doubt that she believes what she said, but in my judgment, she continues to feel a sense of guilt at not intervening to help the Claimant before his mental breakdown. She clearly liked him and from her desk in the corner of the office she would have heard Gareth Hall from time to time speaking bluntly and abruptly to him. She would have overheard arguments, but they did not directly concern her team. She would have heard Hall use swear words in the course of his conversation, but in my judgment, these words were not directed specifically at the Claimant. At that time Hall habitually used swear words in his conversation. It was a matter raised with Everson by Louise Davis and became the subject of much investigation in the grievance and disciplinary proceedings. I do not, however, consider that Hall deliberately victimised or bullied the Defendant, or indeed swore directly at him. Hall was concerned to move things forward, to iron out any technical problems and to achieve the most effective results from his team. For the reasons expressed he found the Claimant somewhat frustrating, but in my judgment, Hall was determined to bring him to a better and more effective standard of performance. I shall return to this matter in due course when considering the interim assessment at page 1648.
I do not propose in this judgment to review all the matters raised in the course of the evidence. My intention is to focus on what seemed to me to be the crucial issues. Great attention, however, has been placed on certain incidents and their aftermath and, out of deference to the parties, I shall record my findings in respect of these concerns.
The Claimant says he should have been given a better handover from his predecessor as build team leader, Paul Bloomfield. I have not heard from Bloomfield, but have read the interview he gave in the grievance investigation (page 791). On this issue I have heard evidence from Everson and Hall. I reject the complaint. The Claimant received an adequate briefing when he started on the Ambulance Project. If he did not take it all in, that was not the fault of his team leader. As it was, Bloomfield, Begley and Robinson were all sitting within speaking distance of his desk. If, as he settled into his position, he needed more information about some aspect of the work, he had only to ask one or more of them.
The Claimant says that the SQL incident undermined his confidence and reflected oppressive behaviour on the part of Gareth Everson. What happened was that Everson mentioned in the course of office conversation that there might be an opportunity for someone in the team to learn SQL to investigate a particular problem. The Claimant responded with a glib remark to the effect “Are you looking for an opportunity to learn SQL Gareth? I will teach you.” If the remark was intended as a joke, Everson did not see it. According to the Claimant, Everson replied “If you fucking dare say anything like that again you’re out of here.” Everson accepts he took the Claimant’s remark seriously. He felt anger and surprise. He says he felt insulted enough to respond “I don’t need you to teach me SQL.” He maintains that he did not say words to the effect “Don’t say that again or you will be fired.” There is disagreement between those who overheard the conversation as to whether he did. In his interview on 5th June 2006, Carl Robinson said he did think Everson had said something along these lines (page 763) and Jean Liao agreed when she was interviewed the following day (page 7850. In her evidence Miss Liao said she could not remember hearing the remark, but this suggested to me that she had a selective memory. For what it is worth, in my view, in all probability Everson did, in the heat of the moment, say something along the lines indicated by the Claimant. Nevertheless, what is significant about the incident is not what was said, but what happened afterwards. The Claimant had lunch that day or the next with Daniel Downing, who told him he was getting worried over nothing (page 516). The Claimant then had a private word with Gareth Hall, who told him it was “Not a big deal. That he was making a mountain out of a molehill and that the best thing to do was to get on with his work and that way he would earn Everson’s respect.” (See email at page 3003) There is nothing to suggest Everson ever spoke about the incident again. The fact that the Claimant raised it in the grievance enquiry and has been raising it ever since suggests an unusual degree of ultra-sensitivity on his part.
There is no doubt that after 20th January glitches occurred in the practical application of the software. When he returned from holiday 10 days later the Claimant says he felt there was a blame culture centred on him. I do not accept this. As indicated, everyone within Everson’s project was working hard. On the technical side they were all doing their best to solve the problems. It is true the Claimant worked long hours, but so did many of his colleagues and, if he worked long hours, it was partly as a consequence of his creating more work for himself by not following the instructions from Medusa or Gareth Hall. Further, I am satisfied that Gareth Everson was a sensible and fair-minded project leader. He permitted the Claimant to go to the gym, he allowed a proper lunch hour and at the end of a working day he would invite everyone to pack up for that day. The fact that the Claimant did not go to the gym, take a proper lunch break or leave the office when others left was not the fault of management. It follows that in my judgment, the Claimant was putting stress onto himself. It may well have been a stressful time for all those involved in the Ambulance Project. It may well be that the project and its success were very much under the scrutiny of senior management. It may well be that some of the technical glitches in the system were particularly aggravating. None of these matters, however, indicate an oppressive, overbearing management: nor do they suggest that the Claimant was victimised as he claims.
One Friday in February a tablet was left out unsecured. On the Monday morning Hall and Everson spoke in the hearing of everyone to find out how it had happened. They both said in evidence, and I accept, that they were intent on ensuring that it did not happen again. Leaving tablets out unsecured risked the loss of confidential data. It was a very serious matter. Hall said in evidence that he did not discipline the Claimant publicly in front of the whole team. The Claimant accepts he had ultimate responsibility for tablet security, but, according to Bloomfield, tried to pass the blame onto him. The Claimant denies this. He maintains that he felt humiliated by the public dressing down given by the managers. In my judgment, this is another example of his ultra-sensitivity. He was not being humiliated. The managers were simply concerned to ensure that security was enforced.
At about the same time Karen Kinsella was found crying in the ladies lavatory. In evidence she has said she felt bad about the way the Claimant was being treated. I have already expressed my view about her evidence. Jean Liao in her evidence could not recall the content of her conversation with Karen Kinsella, but on 28th July 2006 she had a clearer recollection (page 829). In the event, Liao spoke to Louise Davis, who in turn asked Everson to request the technical team, including Hall, to be more courteous and to tone down their forceful language. I am satisfied that this was done, but it has no direct bearing on the issue that I have to decide.
In the office there was general banter along the lines of “That’s one for your GAT.” In evidence Gareth Everson accepted that this happened, for example, when someone spilt some coffee. It was meant humorously and was not to be taken seriously. The Claimant said in evidence that he did not like such conversation “I don’t think it is appropriate to banter about such things.” On this topic the appeal panel upheld his complaint (page 834). Nevertheless, the Claimant’s dislike of such banter seems to me to reflect his evident and serious concern that he should receive a favourable GAT at the end of the project.
This concern led him to request an interim appraisal from Gareth Hall. The Claimant maintains that the email at page 1,636 shows that Hall was biased against him. “When Hall asked me to list my achievements I felt I had done nothing right. I thought I ought to be promoted to the consultancy level. Hall had nothing positive to say about me and I regarded his interim assessment (page 1,648) as a one-sided document, because I had had to list my strengths. Hall and Everson did not recognise my achievements. They had a grudge against me. The person who wrote the assessment was biased against me. If I had not provided the “achievements” there would simply have been “areas for development.”
In his evidence Gareth Hall flatly disagreed with what the Claimant had said earlier in court. He said that it was his normal practice before preparing an assessment to invite a junior employee to list his strengths and achievements. This is, so he said, to avoid missing anything relevant out. “At the meeting with Kevin in March I was focused on getting him promoted. It was not simply for his benefit, but for my own. We get measured on our ability to promote talent. I have said ‘You have done some good work, but there are areas of development which need to be addressed before June.’ I certainly had positive things to say about Kevin. At the meeting I said ‘The strengths are there, but let’s focus on the areas for development opportunities.’ The intention was that in the months leading up to the GAT assessment in June we would have weekly review meetings so that we could build on his strengths.”
On this issue I prefer the evidence of Gareth Hall to that of the Claimant. I was impressed by Hall’s evidence and note that he has recently been highly commended for his management abilities. The principal reason why I accept his evidence, however, is that the document at page 1648 does not contain under the heading “strengths” a bare recital of the contents of the Claimant’s email at page 1639. In the course of the week following receipt of the Claimant’s email, Hall clearly spent a good deal of time and thought preparing an interim assessment on the Claimant. Where he has listed “strengths” under the various topics raised, he has used his own language and included a number of matters, which were not mentioned by the Claimant in his earlier email. This does not suggest to me a man with a biased or prejudiced approach to his subordinate. Indeed, I accept what Hall said at the end of his evidence “I tried to help Kevin, but when I suggested a particular direction he saw it as undermining him. I was trying, however, to get the best out of him and to put him in the best position for promotion.” As for Gareth Everson, I am satisfied that he was a forceful, but sensitive leader of the project. He was and is not a bully and if any bullying involving Hall had occurred he would not have permitted it to continue. I accept the character assessment about Everson given by Daniel Downing in his evidence:
“For Gareth Everson it would have been out of character to bully a member of staff. I heard of nothing untoward on his previous assignment, which involved particularly stressful circumstances.”
In reaching my conclusions I have taken into account the transcript of the two interviews with Carl Robinson in 2006 (page 763 and page 824). Robinson was not complimentary about Gareth Hall. He thought Hall picked on the Claimant and Everson and Hall spoke to him “with a nasty edge.” But he was also uncomplimentary about the Claimant saying that, “He often moaned and whinged about issues and sometimes focused on the wrong things.” In his second interview he said “Gareth Hall would undermine Kevin Mullen’s decisions in front of people and use an aggressive tone of voice. Hall’s manner with Mullen was uncomfortable to watch. Mullen was mild and analytical and Hall is a driver. Hall got frustrated with Mullen.” As I say, I have taken these matters into account, but in the absence of Robinson from the witness box, it is difficult to know how much weight to place on them. In broad terms they do not deflect me from the conclusion reached in paragraph 48 above. For instance, Louise Davis denied that there was a nasty edge to the tone of voice used by either Hall or Everson towards the Claimant. On the balance of the evidence I am satisfied that the Claimant was not bullied by either Hall or Everson. They may have used blunt language and inappropriate banter, but I am satisfied that in doing so they were solely motivated by a desire to achieve the best for both the project, the teams and up to a reasonable point the Claimant personally.
In these circumstances I reject the allegation that the Claimant was the victim of bullying. He was not at the receiving end of “genuinely offensive and unacceptable behaviour.” There may sometimes be a fine line between strong management and bullying, but I am entirely satisfied that it was not crossed in this case. I fully appreciate that the Claimant will not agree with this judgment, but my task has been to view the evidence objectively and nothing he has said persuades me to the contrary.
That leaves the case based on occupational stress. There are two questions: (a) did the Claimant suffer psychiatric illness as a result of stress at work? (b) if so, ought his employers to have reasonably foreseen that as a consequence of his work he was at real risk of suffering imminent harm to his health?
The answer to the first question is “Yes”. On the evidence I am satisfied that the Claimant’s breakdown was as a direct result of his work. In my view, his description of what happened is entirely consistent with the minor depression he suffered in 2003 when he was told that the work for his PhD was not going well. On 14th March 2006 he was deeply disturbed at the potential prospect of not being promoted to consultant, an ambition upon which he had set his heart.
In his report Dr Cleare canvasses other possible causes, which are summarised in the joint report at page 599, but I agree I with Professor Fahy when he rejected the clinical significance of these other possibilities. There is no evidence to suggest that the broken rib, which the Claimant says he suffered whilst snowboarding, had anything to do with his breakdown starting on 14th March. Nor was the fleeting episode of “sleep paralysis” experienced by the Claimant on a train journey from London to Leeds of any relevance. The other suggestion that the breakdown may have been due to the deteriorating relationship with his partner can be equally rejected. The evidence overwhelmingly suggests that it was stress at work and the Claimant’s consequential mental breakdown which caused the relationship to founder.
I am entirely satisfied, however, that the answer to the second question is “No”. In my judgment the significant evidence all points in the same direction. In the first place there is no evidence to suggest that the Defendants knew the Claimant was particularly vulnerable to stress-induced illness. It is, as I have said, agreed that they never saw the Health Assessment Form referred to in paragraph 6 above. Even if they had done, it is questionable whether, in view of the answers given by the Claimant, they would have been put on notice of any relevant mental ill-health in his past. Secondly, all the witnesses have said that the Claimant’s mental breakdown came as a complete surprise. Significantly, there is no evidence of anyone else in the Ambulance Project suffering similar illness or symptoms of any similar illness. Gareth Everson said “There was nothing in his (referring to the Claimant’s) behaviour in the last fortnight to suggest he would have a breakdown. I was really surprised when it happened. His demeanour had barely changed throughout the period he was with the Project. I did not know about his broken rib or any lack of sleep. If I had known he was on the verge of a breakdown I would have done something to assist. We were very concerned to learn of his collapse.” In his statement of evidence Gareth Hall said (page 476) “If Kevin had come to me or I had been put on notice that he was upset or not coping I would have taken a more hands-on role or got human resources or his career counsellor involved.” In evidence he said, “He didn’t tell me he had problems sleeping.” In evidence Antonia Watson, the Claimant’s career counsellor said “If I had realised it was a serious as it was I would have arranged an immediate meeting. I was very upset about what happened to Kevin. I cared about him.” She was saying, in other words, that, had she realised from their contact in the days leading up to the evening of 14th March that he was in imminent danger of suffering the breakdown that he did, she would have put aside all other matters and seen him immediately. Nothing the Claimant said, however, alerted her to his underlying problems. Karen Gilholm expressed a similar view. Even though she thought the Claimant was under pressure and she had particular sympathy for him, if she had thought or suspected that he was likely to suffer a mental breakdown, she would have stepped in, but she did not. In his evidence, Roman Podolczuk, who knew the Claimant better than anyone commented “I didn’t realise before 14th March that he was likely to suffer a mental breakdown. Although I could see he was under a lot of pressure, I could not foresee the mental breakdown happening.” As indicated in paragraph 20, the Claimant himself accepts this.
Mr Buchan has argued forcefully that there must have been some signs that the Claimant was under stress. He refers to the long hours the Claimant was working, his forgetfulness, his refusal to take lunch breaks and reliance on snack foods, and his evidence that at one point he was in tears and on another occasion close to tears. Pausing there, I should say that Gareth Hall has no recollection of either occasion. Nevertheless, even if I were to accept the Claimant’s evidence, it still falls far short of the required threshold. Was it reasonably foreseeable that the Claimant would suffer an imminent mental breakdown? The answer must be “No”. Using the language of Simon Brown LJ in Garrett, there was no real risk of breakdown, which the Claimant’s employers ought to have foreseen and which they ought properly to have averted. In these circumstances the claim fails.
Section E - Quantum
In the light of this conclusion any determination of quantum of damages is academic. But for the record, however, and in the event of the matter going any further, my conclusions are as follows. In paragraph 22 I have referred to the difference of opinion between the psychiatrists concerning the duration of the Claimant’s continuing symptoms. Dr Cleare considered they had substantially resolved by the end of the summer of 2007. In this period the Claimant was taking or preparing for computer programming examinations. Professor Fahy felt they had continued for some time afterwards. The latter, however, accepted that he could not put a firm date on when they cleared up and he accepted that there was no evidence that the Claimant’s work at the RICS was substantially affected by any continuing symptoms. The Claimant himself gave evidence that on only two occasions whilst working with the RICS did he temporarily suffer any symptoms of stress or loss of confidence.
In the circumstances I would have assessed general damages for pain, suffering and loss of amenity on the basis of a significant mental breakdown lasting approximately 12 months and a further period of no more than approximately 12 months in which the relevant symptoms diminished and effectively disappeared. In my judgment, the appropriate figure for damages in those circumstances would have been £8,000.
Subject to liability, loss of earnings up to December 2007 has been agreed at £10,000. That would leave the claim for continuing loss of earnings. The claim has been put on the basis that but for his mental breakdown the Claimant would have continued in his employment with the Defendants and that such employment would have been likely to continue significantly after November 2007. This aspect of the claim is hedged with a considerable degree of uncertainty. In the first place his income from RICS clearly has to be taken into account, his salary level there being at a higher level than his salary would have been had he stayed with the Defendants. Secondly, after November 2008 he turned down possibly suitable employment opportunities on the ground that the salary being offered was insufficient. In evidence the Claimant explained that over the years he had incurred a very considerable debt on his credit cards and if he were to accept employment at a modest salary the credit card companies would, so to speak, demand their pound of flesh and make him bankrupt. He explained that it was better to stay unemployed than put himself at risk on a modest salary level. This explanation brought to mind the old line of authorities which say that a Claimant cannot avoid reasonable mitigation of damage by relying on his impecuniosity. The matter, however, has not been argued further.
Thirdly, and most significantly, however, there was evidence from Samantha Clark that during the so-called credit crunch in 2008 and 2009 the Defendants made nearly 1,000 people redundant. Many were in the systems integration and technology group, of which the Claimant was a member. Most of this reduction occurred through voluntary redundancy, but there were 180 compulsory redundancies. She pointed out that many of the voluntary redundancies occurred in respect of those employees at consultancy or analyst level who were not doing outstandingly well and would have been advised by their managers that it was perhaps time to move on. Miss Clark thought that, in the light of his record, it was realistically possible that the Claimant would have been considered for compulsory redundancy. Alternatively, he might have found the voluntary redundancy package appealing and applied to leave. His redundancy payment would have been approximately £16,000.
On behalf of the Claimant there is a continuing claim for net loss of earnings after November 2008. His employment at RICS involved advanced computer programming, which was not his chosen speciality. His dismissal from that employment does not, it is said, break the chain of causation arising from his loss of employment with the Defendants. It is further said that it was the Claimant’s boyhood dream to work for a company like the Defendants and that he is hardworking, talented and ambitious. In those circumstances it is unlikely that he would have been made redundant compulsorily and it is equally unlikely that he would have accepted voluntary redundancy. So, there is a claim for loss of earnings to date and a claim for future loss of earnings on the basis of a three year multiplier.
I have not found this aspect of the case an easy one upon which to adjudicate. The matter has not been argued or analysed in any detail. There is no expert employment evidence upon which to make a considered judgment. The Claimant’s present employment prospects are unclear and I am troubled, as I say, about the issue of mitigation of damage. I am further troubled by a matter which has not been explored properly in evidence, namely why having been on sick leave for 18 months the Claimant could not have returned in some capacity to work for the Defendants instead of taking up a job as a programmer with RICS. Nevertheless, doing the best I can and adopting a broad brush approach, I would have been minded to assess net loss of earnings after November 2008 in the round figure of £50,000. This figure necessarily reflects the various ifs and buts, the uncertainties that I have mentioned.
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