Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HON MR JUSTICE HICKINBOTTOM
Between :
JOANNA MELANIE MacLENNAN | Claimant |
- and - | |
HARTFORD EUROPE LIMITED | Defendant |
David Melville QC (instructed by Anthony Gold) for the Claimant
David Platt QC (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 30 and 31 January, 1, 2, 3, 6, 7, 8 and 10 February 2012
Judgment
Mr Justice Hickinbottom:
Introduction
From 24 November 2004, the Claimant (“Mrs MacLennan”) was employed as a Human Resources (“HR”) Manager in the London office of the Defendant company (“Hartford”). Hartford is a well-established financial services company based in Simsbury, Connecticut. Determined to break into the international market, it set up European headquarters in Dublin and, in April 2004, opened a London office as a base for sales of its various financial products through independent financial advisors in the United Kingdom. It started to trade from its London office in April 2005.
Having worked for Hartford for just over a year, on 6 January 2006 Mrs MacLennan felt dizzy and ill at work, and left the office. She has never returned to work. In Spring 2006, she was diagnosed as having Chronic Fatigue Syndrome (“CFS”), from which she still suffers. Through Hartford, she had permanent health insurance. That paid her an income until August 2009 when Hartford’s London office closed and, with the rest of the staff, Mrs MacLennan was made redundant, her insurance payments ceased and she began this action.
In this claim, Mrs MacLennan alleges that she developed CFS as a result of the amount and nature of her work at Hartford; and, during the period of her employment, the indications of impending harm to her health arising from stress at work were sufficiently plain that Hartford, as a reasonable employer, realised or ought to have realised that it should take steps to prevent that harm in fact occurring. It is submitted on her behalf that those steps should have included additional assistance, and additional support from her superiors, from May 2005 or from August 2005 at the very latest.
It is uncontroversial that Mrs MacLennan contracted CFS in late 2005 or early 2006, and still has the condition. Although the expert evidence on the issue is not agreed, after suffering from the condition for over 5 years, her prognosis is not good. She makes a lifetime loss claim valued at approximately £1.25m.
The claim is strongly resisted by Hartford. In particular, Hartford (i) denies that Mrs MacLennan’s CFS was caused by her work, and (ii) in any event denies that it was foreseeable that Mrs MacLennan would become ill as a result of her work, and contends that it was not in breach of any duty to her because there were no indications of impending harm to her health as a result of her work that triggered any obligation in Hartford to take reasonable steps to avoid such harm occurring.
Therefore, although there are a number of factual issues between the parties, the main issues for me to determine are twofold, namely:
medical causation: was Mrs MacLennan’s CFS caused by stress she suffered at work at Hartford?
foreseeability: was it reasonably foreseeable by Hartford that she would suffer the kind of harm that she has suffered as a result of her work?
A number of witnesses were called at the trial. Of particular importance amongst the lay witnesses were Mrs MacLennan herself, and two Hartford employees: Mrs Suzanne Zeller (Hartford’s Director of HR, based in Dublin, and Mrs MacLennan’s direct line manager), and Mrs Oonagh Kelly (Mrs MacLennan’s equivalent, HR Manager, in Dublin).
Mrs MacLennan met her future husband, Fraser, in 1995. They married in 2007. Tragically, on 31 March 2011, shortly before this matter was originally set down for trial, Fraser died in a road traffic accident. His statement dated 16 January 2011 was admitted under the Civil Evidence Act 1968.
Over and above the lay evidence, I had the benefit of hearing evidence from three experts: Dr William Weir (Consultant Physician) and Dr Adrian Winbow (Consultant Psychiatrist) instructed on behalf of Mrs MacLennan, and Prof Anthony Cleare (Consultant Psychiatrist) instructed on behalf of Hartford.
The Law
The law in relation to the duty of care owed by an employer to an employee in the context of stress-induced illnesses, alleged to have been caused by the volume or nature of the employee’s work, has been well-established since the landmark case of Walker v Northumberland County Council [1995] 1 All ER 737. It was reviewed by the Court of Appeal in Hatton v Sutherland [2002] EWCA Civ 76 in which, at [18]-[43], Hale LJ (as she then was), giving the judgment of the Court, set out a comprehensive analysis of the nature of the legal duty imposed upon an employer and the steps required to prove causation in a case of this kind. That analysis was approved by the House of Lords (Barber v Somerset County Council [2004] UKHL 13), and has been applied in many cases since.
Paragraph 43 of Hale LJ’s judgment helpfully set out a number of practical propositions, which both Counsel before me (David Melville QC for Mrs MacLennan, and David Platt QC for Hartford) readily accepted accurately reflected the current relevant law. Omitting cross-references and so far as relevant to this claim, Hale LJ said this:
“(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply.
(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.
(5) Factors likely to be relevant in answering the threshold question include:
(a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? 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? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
(b) Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
(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.
…
(13) In all cases… it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm...”.
Hale LJ’s judgment emphasises the need reasonably to protect those in work from injury they might suffer as a result of work-induced stress, whilst recognising the practicalities of the workplace (where stresses and strains are, from time-to-time, inevitable) and the need to avoid imposing unreasonable demands upon an employer. The propositions set out above seek to hold that balance.
Although each proposition is worthy, in many cases involving alleged injury as a result of stress at work the focus is upon “the threshold question” of foreseeability: was it reasonably foreseeable that this particular employee would suffer the kind of harm that he has suffered as a result of his work? That is often a determinative question in relation to liability. As I have already indicated, it is a vital issue in Mrs MacLennan’s claim; although in her case, given the defence outlined in paragraph 5 above, there is the logically anterior question of medical causation, namely: did stress at work cause Mrs MacLennan’s CFS? A positive answer to that question of medical causation is presumed in proposition (14), which concerns legal causation: did the Defendant’s breach of duty cause the condition?
Given the potentially crucial nature of foreseeability in this claim, it may be helpful to highlight some aspects of Hale LJ’s propositions relating to that issue.
First, it is insufficient for a claimant to show that his employer knew or ought to have known that he had too much work to do, or even to show that he was vulnerable to stress as a result of overwork. To succeed, he must show that his employer knew or ought to have known that, as a result of stress at work, there was a risk that he would suffer harm in terms of a psychiatric or other medical condition (see, e.g., Bonser v UK Coal Mining Limited at [27] per Ward LJ, and at [30] per Simon Brown LJ).
Second, even then it is insufficient merely to show that there was a known risk of some psychiatric or other injury in the future. The claimant must show that the employer knew or ought to have known that, as a result of stress at work, there was a risk that he would suffer harm of the kind he in fact suffered (Hatton at [43(2)], quoted above). Consequently, where (as in Mrs MacLennan’s case), she suffered a breakdown, it is insufficient for the employer to have actual or constructive knowledge that there was a risk that the employee might at some stage in the future suffer some other medical condition as a result of his work if the nature of the work continued unabated: the employer must have knowledge of an imminent risk of the sort of collapse of health that in fact occurred (Bonser at [25]; Pratley v Surrey County Council [2003] EWCA Civ 1076 at [23], [25] and [31]; and Hartman v South Essex NHS Trust [2005] EWCA Civ 6 at [11]-[12]).
Third, although most employees will have difficulties with the amount or nature of their work from time-to-time, very few are at risk of psychiatric illness as a result. An employer is entitled to assume that an employee can withstand the normal pressures of the job unless (i) the job is such that employees are known to be at particular risk if injury (e.g. if other employees doing the same or similar work have become ill as a result of the work), or (ii) the employer knows or ought to know that a particular employee is especially vulnerable to stress-induced illness because, for example, that employee has already had a psychiatric episode as a result of stress at work about which the employer is or ought to be aware, or he manifests clear signs to his employer of some impending harm to health prior to the illness in fact suffered (Hatton at [29]; and Bonser at [31]). Either of those may trigger a duty on the employer to consider taking steps to protect the health of the employee; although, because each employee will have a different ability to deal with stressful situations, whilst the nature of the work will always be relevant, usually the actual or constructive knowledge of the employer as to a particular employee’s vulnerability to stress-related illness is of greater importance. Hence, Hale LJ’s comment in proposition (3) above, that: “Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee”. It is often said that this is because each employee will have a different ability to “cope” with stressful situations.
However, care is needed here. Like “stress” (see paragraphs 23-5 below), “cope” has a variety of meanings in an employment context. At large, its meaning is “to deal successfully” with something; but, in a work context, there are differing parameters for “success”. Where an employee has too much to do, the usual consequence is that his performance of that work suffers: some of the work does not get done, or there is a reduction in the quality of the work that is done. In performance terms, such an employee is not “coping” with his work. Most employees will on occasions be “overworked”, and will have problems in “coping” with their work, in this sense. However, that does not mean that work necessarily poses a threat to that person’s health. Indeed, even in those circumstances, it will rarely do so. Doing your work whilst maintaining your function and health is to use another legitimate marker of “success” for the purposes of the definition of “coping”, but a marker that is quite different and distinct. When used in an employment context, “cope” may have either meaning: but it is often used in reference to performance, rather than health.
Fourth, an employer has a duty to act only when “the indications [are] plain enough for any reasonable employer to realise that he should do something about it” (Hatton at [31]). Of course, for all sorts of reasons, it is understandable that an employee may not wish to reveal to his employer that he is having difficulties with his job, or may not wish to reveal the full extent of his difficulties. As Hale LJ said in Hatton (at [15]):
“Some things are no-one’s fault. No-one can blame an employee who tries to soldier on despite his own desperate fears that he cannot cope, perhaps especially where those fears are groundless. No-one can blame an employee for being reluctant to give clear warnings to his employer of the stress he is feeling. His very job, let alone his credibility or hopes of promotion, may be at risk. Few would blame an employee for continuing or returning to work despite the warnings of his doctor that he should give it up. There are many reasons why the job may be precious to him.”
However, where an employee keeps his difficulties, and any resulting stress and/or medical condition, from his employer, Hale LJ continued:
“… it may be difficult in those circumstances to blame the employer for failing to recognise the problem and what might be done to solve it.”
Although of course there may be circumstances in which there are other signs of impending harm to health, sufficiently clear to an employer to trigger his duty to take steps, where an employee does not, directly or through a doctor, inform his employer that work is having a detrimental effect on his health, or at least risks doing so, then it may be difficult for him to prove that the employer ought to have foreseen a risk to his health as a result of his work (see, e.g., Barber at [6], per Lord Scott).
That is especially so because an employer has no general obligation to make searching or intrusive enquiries, and may take at face value what an employee tells him. In particular:
“An employee who returns to work after a period of sickness without making further disclosure or explanation to his employer is usually implying that he believes himself to be fit to return to work which he was doing before. The employer is usually entitled to take that at face value unless he has good reasons to think to the contrary.” (Hatton at [30]).
The foreseeability threshold in claims such as this is therefore high (see, e.g., Bonser at [28] per Ward LJ, where it is described as such); and it may prove a formidable obstacle on the facts of a particular case (Garrett v The London Borough of Camden [2001] EWCA Civ 395 at [62]-[63] per Simon Brown LJ).
Stress
When a person is challenged by life events, his body raises its output of hormones such as adrenalin and cortisol, causing changes in blood pressure, heart rate and metabolism. These physiological responses are intended to improve a person’s physical and mental performance, with a view to meeting the challenge. However, perhaps as a result of overproduction of certain of these hormones, the ability to cope may be disrupted, rather than enhanced, by such challenges, particularly when they are constant or recurrent. Adverse life events may therefore detrimentally affect a person’s normal functioning or health.
Hatton (at [7]-[10]) includes a useful discussion on “stress”. As a word in general usage, it is has various meanings, including both forces that create strain and the effects of those forces namely the strain itself. When transposed into the human context, it continues to be used in those two ways; and, in that context, “stress” may be used inclusively or exclusively of the beneficial effects I have described, as well as the detrimental effects. Although of course more frequently associated with the adverse effects, “stress” is clearly different from, and does not necessarily imply, ill-health.
In the passage in Hatton to which I have referred, various definitions of “stress” are set out. It is unnecessary to repeat them here. However, most indicate that “stress” is concerned with an individual’s response to a challenging situation which may, as I have described, result in a diminution in function or good health. That chimes with the point emphasised in Hatton, that occupational stress is dependent upon both the nature of the relevant work on the one hand, but, vitally, an individual’s personality and response to the challenges of that work on the other. Therefore, whilst as a proposition it is generally accepted that stress may increase the risk to function and health, without markers such as those identified above it is impossible to predict what effect particular potential stressors will or might have on a specific person.
Chronic Fatigue Syndrome
It is Mrs MacLennan’s case that, but for her work, she would not have contracted CFS.
She contends that her work at Hartford caused her stress, which resulted in her immune system being undermined to such an extent that she began suffering from recurring and persistent infections from January 2005, culminating in chickenpox in September and October 2005. Chickenpox is a primary infection with Varicella zoster virus, a type of herpes virus. The chickenpox, she alleges, triggered her CFS in late 2005 or early 2006. However, even if she had not caught chickenpox then, with her immune response being by that stage inadequate because of the stresses she had suffered at work, within a relatively short space of time – months, at most – it is her case that she would in any event have caught another serious infection that would have triggered CFS. Therefore, for her to succeed on the issue of causation, whilst it is not necessary for her to prove that but for her stress at work she would not have suffered the chickenpox infection from which she did suffer, it is an essential link in that causation chain that her work undermined her immune system.
That is by no means a straightforward case on causation.
The aetiology and pathogenesis of CFS are unclear. As a condition, it is defined simply by a constellation of mainly somatic and neurocognitive symptoms, lasting for more than six months, without other medical explanation. Whilst there are a number of hypotheses for its mechanism, none appears to be properly supported by epidemiological or other statistically sound data; although research has provided clues with regard to factors that might predispose, precipitate and perpetuate the condition in an individual.
In 1998, amidst uncertainty as to the cause of the disease and indeed its very existence, the Chief Medial Officer Sir David Calman issued a statement formally recognising CFS as “a real entity” – a real medical condition – affecting and debilitating large numbers of people. He established an Independent Working Party, particularly to make recommendations for the care of CFS patients and for any further research that might be beneficial. The Working Party reported in January 2002.
Although focusing on clinical issues, the report also considered the nature of the disease in the light of the research and experience of clinicians and patients then available. It confirmed the existence of a disease characterised by heterogeneity of its causative factors or its clinical nature or both. The report was inconclusive as to whether that heterogeneity reflected the range of a single disease, or several diseases with similar symptoms being bracketed together under the same banner.
CFS develops in about twice as many women as men, and the report suggested that gender was a predisposing factors. It considered that personality was another; although conceding that the supportive evidence was weak, and the association could simply reflect the effect of chronic disability upon personality. Previous mood disorder was noted as a third predisposing factor.
In respect of triggers for the condition (as opposed to predisposing factors), a number were noted in paragraph 3.3.2 of the report. Of particular importance to this case are the following two:
“Infections: Good-quality evidence indicates that certain infections are more common triggers for [CFS] than others. Glandular fever, viral meningitis and viral hepatitis are followed by [CFS] in about 10% of cases of the primary infection…. [CFS] can follow infections with herpes viruses…. Influenza and ’flu-like infections can trigger [CFS], but common upper respiratory tract infections do not seem to….
Life events: The evidence that life events can trigger [CFS] is weak. Severe life events are much more likely to provoke a mood disorder, which can be misdiagnosed as [CFS]. However, clinical and patient experience suggests that increased ‘stress’ may be common around the onset of symptoms or a triggering event, such as infection. It is unclear whether this is as a triggering, a predisposing or a maintaining factor. Stress is also recognised as a trigger for setbacks.”
In short, the report concluded that there was good evidence indicating that certain infections (including chickenpox, a herpes virus) may trigger CFS. Evidence that life events may do so was considered weak; but there appeared to be at least a temporal association between the onset of CFS and increased stress. Otherwise, the relationship between stress and the condition was regarded as unclear.
In addition to that authoritative paper, I was referred by Dr Weir to four academic papers, in which the authors seek to add to the knowledge of the relationship between life events and CFS. The paper most heavily considered was S Hatcher and A House, “Life events, difficulties and dilemmas in the onset of chronic fatigue syndrome: a case control study”, Psychological Medicine, 2003, 33, 1185-92. It considered 64 CFS patients. In relation to marked difficulties with life events (as opposed to a severe event, such as the loss of a loved one) in the three months before onset, there was a statistical difference between the patient group (more) and the controls (less). However, (i) a number of the controls refused to take part, and the controls were questioned by way of a questionnaire rather than interview, introducing an obvious source of bias; (ii) particularly in relation to marked difficulties patients identified in the three months before onset, there was considerable risk of association bias; (iii) in relation to marked difficulties in the year before onset, there was no statistically significant difference between patients and controls; and (iv) the numbers involved were so small that this study has no great statistical potency. The results do not appear to have been replicated.
Of the other two papers, one (I E Salit, “Precipitating Factors for the Chronic Fatigue Syndrome”, J Psychiatr Res, 1997, 31(1), 59-65)) concerned 134 CFS patients. In 72% of them, CFS started with an apparently infectious disease. In 85%, stressful events appeared common in the year before onset, compared with only 6% of the controls. However, it predates the Working Party Report, and was presumably taken into account in it; and it is in any event statistically weak. The conclusion is no stronger than it is likely that CFS is multifactorial in origin; acute events (including infections) may trigger CFS; and patients in which it does may be “quite vulnerable, based on the occurrence of many stressful events”. Webster Marketon et al, “Stress hormones and immune function”, Cellular Immunology, 252 (2008) 16-26, reviewed data relating to the effects of stress on the immune system, in particular in relation to delayed wound healing, impaired responses to vaccination and the development and progression of cancer. That paper appears to be of little assistance in respect of the issues before me. The final paper (E Sundbom et al, “Possible influence of defences and negative life events on patients with chronic fatigue syndrome: a pilot study”, Psychological Reports, 2002, 91, 963-978) was not referred to at the trial, and readily concedes its own statistical limitations.
Dr Weir accepted the conclusions of the Working Party report, and accepted that there are insufficient data to confirm a hypothesis that stress and CFS have a causal relationship; he said he believed there was such a link because of his clinical experience. Prof Cleare (who was a member of the Key Group of the Working Party) said that, in his view, none of these studies – and indeed none of the collected academic and clinical experience and wisdom since 2002 – undermines or significantly changes the views and conclusions of the Working Party report with regard to trigger. I agree: there is no evidence before me which significantly changes the position with regard to trigger as set out in that report.
The Working Party report, whilst stressing that the mechanism for the disease was unclear, set out a number of possible mechanisms postulated on the basis of associations rather than cause or linkage. Three (described in paragraph 3.3.4 of the report) are relevant in this case:
“Biomedical model: In this overarching conceptual framework, [CFS] is seen as a condition like many other medical conditions where illness results from a specific pathological defect in physiological functioning, mediating at organ, tissue, cellular and/or molecular level, by as yet undefined mechanisms. It is not incompatible with the following, but implies that a primary disease entity exists and that the biopsychosocial aspects are consequential.
Biopsychosocial model: The biopsychosocial model of pathophysiology, applicable to all disease, suggests that once an illness has started its expression is affected by beliefs, coping styles, and behaviours, while consequential physiological and psychological effects act in some ways to maintain and/or modify the disease process.
Immune: Immunological abnormalities are common in patients with [CFS]. The findings are mostly non-specific, and their relationship to the illness has not been established. The pattern suggests some immune dysregulation, with activation or suppression of different components…”.
My understanding is that, although the mechanism is unclear, most experts (including all of those who gave evidence in this case) are agreed that both physical (or organic) and psychological elements may be involved in the condition. Dr Weir is a proponent of the biomedical model – he considers that the primary disease is a viral infection affecting the nervous system – but he accepts that, once that infection has got hold, as with any disease, psychological factors intervene and, in the case of CFS, they may be prominent. He considers there is a psychological element in perhaps half CFS cases. So far as Dr Weir is concerned, the model he prefers is a hypothetical construct – albeit one informed by Dr Weir’s very considerable clinical experience in this area – because there are no reliable data of any power to support it. As a general physician, it is perhaps understandable that he focuses upon organic factors. On the other hand, whilst Dr Winbow considered that (i) in a specific case, in origin CFS may be organic or psychological or both, and (ii) a lowering of the immune system might make an individual more susceptible to triggering infections and CFS, both of the psychiatrists (Dr Winbow and Prof Cleare) concentrated upon the psychological elements. Again, that focus is understandable given their medical discipline. Prof Cleare is a firm proponent of the biopsychosocial model.
This difference of focus may also explain the differing attitudes towards the benefits of cognitive behaviour therapy (“CBT”) for CFS patients generally, and Mrs MacLennan specifically: Dr Weir accepted that it might assist in clearing the decks of psychological problems (such as anxiety and depression) overlaying the virus he believes key, whereas Prof Cleare considers CBT to be useful therapy in curing CFS itself and has pioneered its use in that regard at King’s College Hospital, London.
As I have said, the aetiology and pathogenesis of CFS are unclear and unknown. Although I found Prof Cleare’s evidence interesting and to an extent compelling, it is not necessary for me to make findings in relation to causation and mechanism wider than those necessary for the determination of this claim. Nor, given the medical uncertainties, would further speculation on my part be helpful or wise. I have simply to consider whether Mrs MacLennan has persuaded me that, as a medical matter and on the balance of probabilities, her work caused her CFS.
Her case is put thus. The stress which she suffered at work at Hartford undermined her immune system, and consequently reduced her body’s ability to defend itself against infectious diseases. That is evidenced by her record of numerous and persistent infections throughout 2005, which she described in terms of being “continuously ill”. After she contracted chickenpox – the actual contraction of which may or may not have been as a result of her reduced immune capability – her immune response was inadequate to prevent the onset of CFS. Dr Weir, with Dr Winbow, supports that case.
Prof Cleare does not. He said that the relationship between stress, a reduced immune system and CFS is unclear, as identified by the Working Party report in 2002. There is no cogent evidence to support the contention that stress triggers CFS. On the balance of probabilities, he considers that (i) chickenpox is a highly infectious disease, which Mrs MacLennan would have contracted in the circumstances in which she did in fact contract it, in any event: (ii) Mrs MacLennan’s CFS was caused by her preceding chickenpox: and (iii) she would have contracted both chickenpox and CFS in any event, and there is no casual connection between her work and either condition. He accepted that Mrs MacLennan has had some symptoms of anxiety, distinct from her CFS, that are probably attributable to her work; but her claim relies upon the proposition that her CFS is caused by her work.
Given the nature of her case, the evidence of Dr Weir, as a general physician, was particularly important in support of Mrs MacLennan’s case on medical causation. He was especially impressed by the pattern of infections Mrs MacLennan said she had had during the course of her employment with Hartford, as showing a significant undermining of her immune system prior to her contracting chickenpox. I shall therefore return to the issue of medical causation after considering Mrs MacLennan’s employment history and medical history over the relevant period (see paragraph 218 and following below).
It is to those histories that I now turn.
The Witnesses
Of course, I have drawn conclusions in relation to the reliability of witnesses only after analysis of all the evidence. However, it may assist if I make some general comments about the main lay witnesses whom I heard at this stage.
It was agreed between the experts that Mrs MacLennan had a perfectionist, Type A pre-morbid personality, and was extremely conscientious. Mrs MacLennan reported to Prof Cleare as follows (10 February 2011 Report, paragraph 60):
“She told me she was someone who was ‘not good at doing nothing’. She had a tendency to find it difficult to relax and switch off and indeed described herself as ‘absolutely terrified’ at doing this, something she is now having to learn. She said that she is also someone who has tended to take on other people’s problems and again has had to learn how not to do this. She described herself as someone who tried to be organised.”
Both Prof Cleare and Dr Winbow said that that was typical of the personality type.
So far as Mrs MacLennan is concerned, that personality type is reflected throughout the evidence. For example, in an email of 5 December 2005 to Miss Roberts, Mrs MacLennan referred to herself as “a complete control freak” which, although perhaps somewhat flippantly made, was a description which Mrs Zeller considered had an element of truth ; and a referral letter from her GP to a consultant psychiatrist in 1997 (when she was unable to take her exams because of stress and anxiety) said:
“She... feels it imperative to her self-esteem to get a first-class qualification ‘otherwise I’m nothing’. To this end, she has been studying to the exclusion of leisure and social life for the first year, even depriving herself of sleep. As the final exams approached, her anxiety reached intolerable levels and she felt ‘she just wanted out of it’...”.
Mrs MacLennan wished to excel at her job, and Mrs Zeller said that she found it difficult to “let anything go” and, rather than passing things over to the rest of the team in Dublin, she felt it was just as quick and effective to do it herself. She liked to be in control of events as much as possible, and exercise influence in the workplace. She therefore had a tendency to be diverted from her core HR tasks into other matters, such as facilities and general management of the London office, sometimes in relation to quite trivial matters. Whilst Mrs MacLennan undoubtedly had a great deal of work to do in any event, I accept that evidence of Mrs Zeller, which reflects Mrs MacLennan’s personality type and is reflected throughout the evidence of her time at Hartford.
In relation to her evidence, given her medical condition, Mrs MacLennan appeared to withstand the anxiety and stress of giving evidence at trial remarkably well. In giving her evidence, Mrs MacLennan gave her best, and I do not doubt that she gave her honest best. However, she accepted that her memory was, at best, variable: and, in some aspects of her evidence, I am afraid that her recollection clearly failed. For example, in her evidence she referred to herself being “constantly ill” during 2005. For the reasons I give below (especially at paragraphs 212-7), looking at the evidence as a whole, it is quite clearly not the case that she was constantly ill during 2005.
As I identify below in dealing with the history of Mrs MacLennan’s time at Hartford, in many respects I did not consider that her recollection was true. In several instances, it seems that there is a discordance between what was apparently her views in relation to a matter at the time, and her views now (e.g. with regard to the manner in which the episode involving Mr Enos and Miss Osborne was dealt: see paragraphs 74-87 below). I consider that Mrs MacLennan has, unfortunately if innocently, recast history in a number of significant respects. I did not find Mrs MacLennan a reliable witness.
Particularly in relation to her medical condition from time to time, that is compounded by the fact that she was contemporaneously prone to exaggerate. Two examples will suffice. First, when she had an ear infection in April 2005 (see paragraph 199 below), she said she stayed in hospital for one night: but, in her oral evidence, she accepted that she simply attended outpatients, where she received no prescription and was sent home. Second, when she fell ill on 12 May 2005 in Dublin (see paragraph 200 below), she emailed a colleague to say that she had had to have root canal treatment and would have to have her wisdom teeth out when she returned from holiday. However, her dental treatment was limited to an unexceptional visit to the dentist on 13 May, and it is clear that neither root canal treatment nor the removal of her wisdom teeth ever took place. That proneness to exaggerate undermines the confidence one can have in the contemporaneous emails she sent about her health; although, certainly, it adds force to the point made by Mr Platt QC that, when she was ill, she was not reticent in letting her work colleagues know nor did she minimise the effects or consequences of any health problem that she then had.
One final point concerning Mrs MacLennan. Below, for convenience, I deal with her employment history (paragraphs 63-191) and medical history (paragraphs 192-217) in separate parts. Through Mr Melville, Mrs MacLennan conceded that she herself never made any connection between her work and any ill-health, until after 6 January 2006. I deal with that in the context of her medical history (see paragraph 216 below); but refer to it here because it is relevant to a number of factual issues in relation to her employment history at Hartford.
Mrs Zeller holds a BA in Psychology and Sociology, and has been in HR since 1980. She is now a Vice President and Head of HR and Facilities at Allianz Life Insurance Company of North America. Mr Brendan Naughton (Business Conduct Compliance Manager at Hartford’s London office) and Miss Roberts described her professional style as “fluffy”; but she came over as a generally forthright and compelling, as well as patently honest and cooperative, witness. The manner in which she responded to cross-examination could not be described as “fluffy”.
Mr Melville sought to suggest that, because of various errors in her evidence, I should treat her as generally unreliable. For example, he submitted that she had minimised the occasions when Mrs MacLennan had told her she was struggling with her work, and changed her evidence from her statement in two respects in relation to the August issue with Ms Bosco (as to whether Mrs MacLennan had told her that Ms Bosco had called her a liar, and whether Mrs MacLennan could sensibly have raised the issue with Ms Bosco herself). However, Mrs Zeller was cross-examined for a day, and the number of examples of potentially significant changes to her evidence was very small. I regard none of these matters as undermining the generally compelling nature of Mrs Zeller’s evidence.
Mrs Kelly was perhaps less formidable, but nevertheless, again, in my judgment an honest and compelling witness.
As with Mrs Zeller, there was no suggestion that she was in any way hostile towards Mrs MacLennan. Mr Melville again sought to suggest that errors in her evidence should drive me to treat her as generally unreliable. He relied upon her failure to refer in her statement to the comment of Mrs MacLennan that she dealt with stress by “having colds and getting ill” (see paragraphs 93-8 below). However, that comment was not made in a formal setting, but rather in response to a psychometric test questionnaire as part of a team building exercise at Mrs Zeller’s apartment. Her lack of recollection of that does not, in my view, suggest general unreliability in respect of important matters. In respect of other points Mr Melville made, Mrs Kelly was only marginally incorrect or forgetful, if at all. Many were matters of degree or judgment, e.g. in saying that Mrs MacLennan’s duties were not onerous, and suggesting that the amount of comments and complaints Mrs MacLennan made to her about overwork and pressure she was under were not as great as Mrs MacLennan asserted. Again, I do not consider that any of these matters undermined the general reliability of Mrs Kelly’s evidence.
The Claimant’s Pre-Hartford History
The Claimant was born on 19 September 1975.
She left school at 18, and studied for a Higher National Diploma in Business and Finance at Carshalton College for 2 years, before going to Nescott to study for a BA in Business Studies. Unfortunately, prior to her taking her final examinations, she was subject to a number of adverse life events: in particular, her younger sister suffered a series of severe traumas, and her grandmother died. She said that she felt pressure from her tutors to do well. Mrs MacLennan became depressed, and in 1997, she was referred to a psychiatrist for three sessions of treatment and the prescription of anti-depressants which, she thought, did not help her much. She overcame that depressive episode relatively quickly.
Following some further studies, she worked for Associated Newspapers. However, she was bullied by the HR Director there. Possibly as a result, she had another depressive episode in 1999, her medical records noting on 27 May 1999, not bullying, but:
“Emotional state (acute) 2M. Work dramatically ↑ → Stress. V. tearful….. Brooding about work. Fearful of becoming depressed again…. ? Change work.”
She was prescribed anti-depressants. Again on 9 June 1999:
“Stressed at work. Can’t cope. Not sleeping well…. Weeping.”
She was prescribed benzopiazepines for anxiety. However, that all appears to have resolved, fairly quickly and without further visits to the doctor.
In 2001, she began working as an Assistant HR Manager for Churchill Insurance, and she moved to a similar role in Legal & General Insurance in 2003. She left Legal & General following the appointment of a colleague as cover for their line manager when the manager went on maternity leave. Mrs MacLennan was recommended for that post by her line manager, and was generally expected to obtain it. She was optimistic. She considered the appointment made was “political”, rather than merit-based. In evidence, Mrs MacLennan denied that that job was stressful, but she does appear to have been disappointed and “fed up” at not getting the cover job, as revealed in emails to her then colleagues.
During this period, prior to her time at Hartford, Mrs MacLennan’s health was unexceptional. She had a chronic, but intermittent, back problem; and attended her doctor and an osteopath with that from time-to-time. She also went to her doctor with gastroenteritis (e.g. 27 September 2001, and 5 and 7 August 2003), and coughs and colds. In February 2002, there is a reference to increased pressure at work (in addition to her having influenza) in her osteopathy notes. On 30 December 2002, in respect of a cough/cold, she reported to her doctor: “Been getting it once a Mth x 3-4/12”. She did not attend her doctor with a recurrence of any psychiatric symptoms after 1999.
It is not suggested by Mrs MacLennan that she told Hartford about any of her previous medical or psychiatric history, or that anyone at Hartford ought to have been aware of that history.
The Claimant’s Hartford Employment History
Introduction
Following the disappointment of not getting the cover job at Legal & General, Mrs MacLennan started to look for another job. After a series of interviews, she was offered the post of Senior Human Resources Manager at Hartford’s London office, where she began working on 29 November 2004. She was recruited as the senior HR person in London, to set up and run the HR department in that new office. It was made clear to her that Hartford’s London office was a start-up operation, and it would be “all hands to the pump” initially whilst the business was set up and established. Mrs Zeller said to her that she would have to be flexible in how she worked, and there would be some work at unsociable times, but she was keen to ensure that everything balanced itself out. She also told Mrs MacLennan that the HR personnel in Dublin and London worked together as a single team.
When she joined, the office was small, with no more than 20 people. By January 2006, there were about 50.
The Senior Managers already in place when she began were Lincoln Collins (Chief Executive, who was based in both Dublin and London), Adam Dooley (Sales Director), John Enos (Marketing Director), Stephen Hodson (Marketing Manager), Chris Dickinson (Product Management and eCommerce Manager) and Scott Bredikis (Business Development Manager). Mrs MacLennan’s direct Line Manager was Mrs Zeller, the HR Director based in Hartford’s Dublin office. That office had its own HR Manager under Mrs Zeller, Mrs Kelly, and two HR assistants. The Facilities Manager, Ms Michelle Kelleher, was also based in Dublin, within the HR Department. Mrs Zeller reported to Ms Peg Lesiak, the Director of HR in the International Division in the US. Miss Nicky Osborne was the London office receptionist: she was on a temporary contract. On 1 February 2005, Miss Kate Roberts was recruited by Mrs MacLennan as her HR Assistant in London. They had worked together at both Churchill and Legal & General.
Mrs MacLennan said that, during her time at Hartford, her hours were long and the HR issues that she had to tackle were many and difficult, and as a result she found it difficult to cope and suffered very considerable stress. In particular, she relied upon the following.
Working Hours
Mrs MacLennan’s contract required her to work 39 hours per week. She said that, consistently, she worked far more than that and, indeed, far more than the 48 hours per week which the Working Time Regulations 1998 have as a 17 week average maximum. (Although prayed in aid, no discrete claim was made under the Regulation, and rightly so: the Regulations provide no cause of action by an employee against an employer (Barber v RJB Mining (UK) Ltd [1999] ICR 679).)
From her various interviews, Mrs MacLennan knew that the London operation was in start-up mode. Hartford did not sell any of its products direct to the public, but only through independent financial advisors. Mrs MacLennan understood that her role would include being involved in recruiting sales consultants to work out of the London office, selling Hartford’s products to financial advisors. Until the London office launch on 7 April 2005, much of her time was spent in recruiting the ten required salesmen.
The sifting of applications was done in Dublin and Ireland, but Mrs MacLennan was expected to interview all of the final candidates with Mr Dooley, to ensure consistency of approach. Because many of the candidates were in employment, Mr Dooley decided that the interviews should take place at the weekend. Mrs MacLennan was consequently required to work on Saturday for about eight weeks running, from 22 January 2005, comprising one weekend being occupied by a visit to the US (see paragraphs 113 and following below), and seven weekends interviewing. (The number of weekends indicated as worked on interviewing varies, but seven is the number referred to in her own input into her annual performance review in December 2005, and is unlikely to have been an underestimate in that context.) Interviews were usually on Saturday. She did not usually go into the office on Sunday, but said she took work home to keep up. Although she was entitled to take off a day in lieu for each of these days worked (and she took off that time later in the year), these interviews resulted in her working perhaps 55-60 hours per week for those weeks, and sometimes more. That is evidenced by a schedule of hours prepared by Mrs MacLennan, based on her email activity from work, although supplemented by Mrs MacLennan’s recollection where there was no email traffic (e.g. on some Saturdays, when she was interviewing).
Mrs MacLennan said that she would usually be in the office at 7am, and often would not leave until 7pm or even later. In addition, she would sometimes be telephoned in the evenings, and at the weekend. Her working day was effectively lengthened by the fact that she preferred to drive to Canary Wharf from her home in Surrey, which took 60-90 mins each way and sometimes longer, and she went to work early and returned late partly because she wished to miss the worst of the traffic. However, whilst at work, she was fully occupied. Although she continued to work long hours after the April 2005 launch, this was the period of her longest hours. She said (and other witnesses confirmed) that the whole London office was working “manically” until the launch.
She said that there were other challenges in this recruitment process. She had been led to believe that the process would have been further advanced by the time she started: Mr Dooley was not clear about the attributes in candidates that he was looking for: and the timetable was tight because all of the sales consultants had to be recruited for the launch in April.
As I have said, the evidence was that all the London staff worked long hours prior to the launch. Mrs MacLennan said that it was her philosophy that people should be allowed to choose the hours they worked, if any, above those they were contractually bound to work: that was the philosophy they all worked by. Mrs MacLennan accepted that she liked being busy – she got a buzz out of it – but she did not like being out of control at work. That, of course, fits with her personality type referred to above (see paragraphs 46-8).
Although work was still heavy after the launch, it was less than it had been. Although by August 2005, Mrs MacLennan was expressing concern about how much she had on (see paragraphs 154 and following below), there are no emails or other expressions of concern about amount of work immediately after the launch. Mrs MacLennan’s concern moved from the sheer amount of work, to its nature.
John Enos and Nicola Osborne
On her first day in the office, Mrs MacLennan was told by Mr Dooley’s personal assistant Ms Marion Rogers (who had performed the HR function in the office prior to Mrs MacLennan’s arrival), that the receptionist, Miss Osborne, had said that, the previous week, Mr Enos had invited her back to his flat, and there made sexual advances towards her including physical contact. He had tried to kiss her, thereby committing what was in substance a sexual assault. Mrs MacLennan asked Miss Osborne whether she wished to raise a formal grievance against Mr Enos and, on 7 December, she said she did. Miss Osborne was on a temporary contract, due to expire on 23 December; and, as a result of performance issues, a decision had already been taken not to renew her contract beyond that date.
The Hartford grievance procedure required someone (usually from the HR department) to investigate, and obtain relevant evidence, including statements. All of the evidence would then be passed up to a more senior executive, who would decide whether the grievance had been made out and, if so, the appropriate sanction.
Within ten minutes of Miss Osborne indicating that she wished to make a formal complaint against Mr Enos, Mrs MacLennan had contacted Mrs Zeller saying that she was going to pick up the matter as soon a possible and, in the meantime, it would be better of Miss Osborne was out of the office. Because Miss Osborne was due to leave on 23 December in any event, and she had holiday owing, she left the office that day and that was her last day at work at Hartford.
The investigation into the grievance continued. Mrs MacLennan was asked to be the investigator. She took a statement from Miss Osborne and Mr Enos. Mr Enos accepted that Miss Osborne had been in his flat, but he denied making any sexual advances towards her or touching her inappropriately. Miss Osborne, who had been drinking on the relevant evening, could not well recall what had happened in the flat.
That evidence was passed up to Mrs Zeller, as the senior executive who, on the evidence provided to her, was to determine what had happened; and, if appropriate, recommend a sanction. After consultation with Ian Veitzer (Senior Counsel in the Employment Law Group of the Law Department of Hartford Financial Services Group Inc in the US), Mrs Zeller took the view that there was no evidence that there had been any sexual assault, and she consequently dismissed that as a specific grievance. However, she considered that Mr Enos had breached the company’s policy by having a junior employee in his flat, in the circumstances that he did; and she recommended as a sanction a final written warning and the withdrawal of any performance bonus, although she took the view that his signing on bonus of £25,000 could not be withheld. In the event, a bonus of £27,500 was eventually paid to Mr Enos.
In respect of the handling of Miss Osborne’s grievance, in this claim Mrs MacLennan said that:
She did not have proper support from Mrs Zeller, who was reluctant to have the grievance investigated at all. Mrs MacLennan said that it was clear to her that Mr Enos “would have got away with it” if it had not been for her.
After Mrs Zeller had authorised it, she left Mrs MacLennan “to get on and sort out the problem”. Before anyone had got to know her, Mrs MacLennan said that she found it difficult to investigate the behaviour of a Managing Director such as Mr Enos, and having to make difficult decisions about senior staff without the support she was entitled to expect.
Mrs Zeller relied upon Mrs MacLennan’s advice to ensure that the process complied with UK requirements; but told her that, whatever the outcome of the investigation, Hartford could not afford to lose Mr Enos and he would not be dismissed. The outcome had, therefore, been determined prior to the investigation. Mr Enos was to be “hit... in his bonus”. Mrs MacLennan said that she was “disgusted by this”.
Had Miss Osborne not made the grievance, Mrs MacLennan said that she would have stayed at the company – as I understand it, on a permanent contract when Hartford moved from the City to Canary Wharf in early 2005. She thought that Miss Osborne had been “mucked about”.
In the event, Mr Enos was given a final warning, as well as having his performance bonus removed. Mrs MacLennan said that she “thought this was a disgusting result... [and] unethical”, because the allegations of assault had occurred in Mr Enos’s flat. She felt that, by not dismissing him, they were condoning Mr Enos’s behaviour.
As I have already stressed, the claim before me is more focused upon Mrs MacLennan’s response to her work, than precisely what happened during the course of her employment by Hartford, yet alone who may have had the better professional judgment in relation to various HR issues that arose. However, this early episode is an example of how Mrs MacLennan’s hindsight consideration of her work at Hartford appears to have become distorted, to which I have referred above (paragraph 50) – and, in particular, there is a discordance between what was apparently her views in relation to the matter at the time, and her views now – and so I consider it in some detail.
Having heard evidence from both Mrs MacLennan and Mrs Zeller, it is clear to me that Mrs Zeller was not reluctant to investigate a serious grievance of sexual assault made against a very senior manager. Cautious she may have been, but, as Mrs MacLennan accepts, Mrs Zeller authorised the investigation in the very first telephone conversation Mrs MacLennan made to her about it. It is true that the matter may not have been investigated if it were not for Mrs MacLennan’s involvement; but only because she was in charge of HR in the London office and it was her job to raise with Mrs Zeller matters of an employee’s behaviour that might warrant investigation. Mrs Zeller did not obstruct the investigation in any way.
Far from Mrs MacLennan not having support and being told to “sort out the problem” herself, the usual Hartford procedure was followed, of an investigator collecting the evidence (Mrs MacLennan), and then handing that up to a senior for consideration (Mrs Zeller). Far from undermining her, Mrs Zeller made it clear to Mrs MacLennan that she relied upon her to ensure that the procedure complied with UK requirements. Mrs Zeller was appreciative of Mrs MacLennan’s work on this matter, specifically complimenting her in an email of 16 December:
“We all thought your comments and handling of the situation with Nicky [Osborne] is perfect”.
I therefore reject the suggestion that Mrs MacLennan was left to sort out the problem, or make decisions concerning the investigation, without support. Unfortunate as this episode may have been, so early on in Mrs MacLennan’s career with Hartford, Mrs Zeller performed her part in the process. She promptly made the decision to instigate the investigation, and she took responsibility for determining what happened on the basis of the evidence provided by Mrs MacLennan; and also, following consultation with her superiors, the appropriate sanction.
I also reject the suggestion that Mrs Zeller had prejudged the matter, or had made the decision (or indicated to Mrs MacLennan that she had made the decision) that, whatever the outcome of the investigation, Mr Enos would not be dismissed. Mrs Zeller emphatically denied that that was the case, and Mrs MacLennan’s own journal has a note:
“JS – Investigate
SZ – Disciplinary
If investigate warrants inc dismissal…”
There is then an arrow and: “Speak to JE”. It is not clear whether that is a reference to Mrs Zeller or Mrs MacLennan being actioned to do that: but I am sure that it is not a note that Mrs Zeller was going to have a word with Mr Enos to avoid the proper investigation of the complaint, or any proper sanction. Mrs Zeller said that, had Mr Enos have been found to have sexually assaulted Ms Osborne, he would have been dismissed. I accept that. There is no evidence to the contrary, except Mrs MacLennan’s assertions in this claim with regard to the content of conversations she had with Mrs Zeller. Without hesitation, I find that those conversations did not take place, as now recollected by Mrs MacLennan.
Furthermore, when looked at overall, it is clear from the documentary evidence and also the evidence of Mrs Zeller, that, contrary to Mrs MacLennan’s case now, those at Hartford involved in this unfortunate matter (including Mrs Zeller and Mrs MacLennan) agreed the course of action to be pursued. Mrs MacLennan acted quickly to instigate an investigation: within ten minutes of Miss Osborne formally notifying her grievance. It was she who suggested that it might be better if Miss Osborne was not in the office during the investigation, particularly as she had so little time left at Hartford. Mrs MacLennan was aware that Miss Osborne was not going to be kept on after the expiry of her temporary contract, later that month. She led the investigation. She drafted the letter to Miss Osborne saying that there was insufficient evidence to find that Mr Enos had made any attempt to kiss or otherwise sexually assault Miss Osborne. Mrs MacLennan played her full part in a process the course of which was both procedurally proper – it was part of her job to make sure it was so – and agreed between the various participants including Mrs MacLennan herself.
Mrs MacLennan said that she thought she conducted the investigation properly and well, and she was appropriately praised for her part in it. She said she was content with the factual findings that were made. Mrs MacLennan appears to have dealt with her part in it efficiently, properly and without any signs of undue stress; as does Mrs Zeller in relation to the part she played.
In relation to determining what happened on the relevant evening, Mrs Zeller took that responsibility, as she was required to do under the Hartford procedure. On the evidence she had, she was entitled (and, indeed, probably bound) to find that there was no assault, given that Mr Enos denied any assault and Miss Osborne could not recall what in fact happened in the flat. Mrs Zeller was therefore right to consider that the grievance was restricted to Mr Enos placing himself in an inappropriate situation with a junior member of staff.
Mrs Zeller also took responsibility for the sanction for that breach of company policy, and Mr Enos had a final warning and the loss of performance bonus. Insofar as Mrs MacLennan now considers the sanction on Mr Enos to have been lenient, (i) she did not make that thought known at the time, (ii) the sanction does not on its face look manifestly lenient for the misconduct of which Mr Enos was found to have been guilty, and (iii) the appropriate sanction was in any event not a matter for her, but for Mrs Zeller, who cannot sensibly be criticised for the sanction she in fact imposed. In my view, for Mrs MacLennan to describe the sanction as a “disgusting result” discloses a distorted perception of the issues involved and how Mrs Zeller dealt with them.
Office Re-location and General Office Management
At the end of 2004, the London office moved from the City to Canary Wharf. Ms Kelleher was Facilities Manager, and she was therefore responsible for both the move and the administration of the new office.
Mrs MacLennan said that she and Ms Roberts were left to do much of the day-to-day running of the office, because Ms Kelleher was based in Dublin. In her own notes of her performance review meeting on 9 June 2005, there is a reference to reception, buying food for the office etc, which further reflects Mrs MacLennan’s nature of not releasing work to others and doing work that is outside her brief. As I have indicated, that reflects her personality (see paragraphs 46-8 above). However, Mrs Zeller said that, although they took much of this burden on themselves, they were not bound to do so. Ms Kelleher, although based in Dublin, was responsible for such matters; and there were others who could have done it, such as the receptionist from time-to-time, and even a member of the sales staff could have been identified. I accept that evidence.
Employee Handbook and Access to Legal Advice
As one of her early tasks, Mrs MacLennan had to produce a Staff Handbook, to be based upon the group’s standard handbook, but of course tailored to the UK. She asked whether she could go direct to local solicitors, but Mrs Zeller said that any local legal advice in relation to the handbook had to be obtained from or through the US. She said that local advice was directly available, when required, on some other issues; but generally legal advice was obtained through the US.
Mrs MacLennan considered that that made her job more difficult; and Mrs Zeller “did not act on [her] concerns”. However, (i) it is unexceptional and understandable for a group to require local companies to obtain legal advice through their own internal counsel, particularly in respect of matters such as handbooks which they may wish to be standardised across their international companies so far as possible, and (ii) the additional stress as a result of this limited stance must have been minimal, in any event.
Team Building Exercise
Mrs MacLennan recalled a team building exercise, she thought on 23 February 2005, held during working hours at Mrs Zeller’s apartment in Dublin. As part of the same trip, it seems that there was a day visit to a spa. As part of the day at Mrs Zeller’s apartment, psychometric test questionnaires were distributed. One question was, “How do you cope with stress?” Mrs MacLennan said that she answered: “By getting colds and being ill”. Miss Roberts said that she took this as giving the people in the room (including Mrs Zeller) a warning, or indication that they should look out for colds and illness in Mrs MacLennan as an indication of stress.
Mrs Zeller and Mrs Kelly could not recall that day being in February, but rather in the summer: they recalled walking on the beach. I accept their evidence on that small point. However, had it been in February, I note that, by then, Mrs MacLennan had only not had a single day off work whilst at Hartford – and had only felt unwell for a couple of days, earlier that week, when on one day she had gone home at 4pm.
In any event, Mrs Zeller could not recall that question or response, whenever it might have been. However, she said that the day (including the psychometric test, of which the questionnaire formed part) was light-hearted, and not serious. She would not have taken such an answer, in that context, as serious. Mrs Kelly did however recall it. She too, however, did not regard the answer as a serious one.
Mrs MacLennan relies upon this episode in respect of the issue of whether Hartford foresaw, or ought reasonably to have foreseen, that Mrs MacLennan’s work would lead to health problems. She contends, with this information, when Mrs MacLennan was continuously ill with cough, colds and other illnesses in 2005, Hartford ought to have realised that she was suffering from stress.
However, despite Miss Roberts’ evidence, this is unrealistic. At this time, Mrs MacLennan herself had not drawn any connection between her work and any ill-health she may have suffered; nor did she make any connection until after she had “left” in January 2006. The remark was made, not in a formal setting, but in the context of a light-hearted team building exercise. In the circumstances, Mrs Kelly understandably, and reasonably, did not consider that comment was a serious one, nor that Mrs MacLennan’s past health (or, in due course, her future health) was adversely affected by her work. Although she did not recall the comment, Mrs Zeller said that, in that context, she too would have regarded the comment in the same way, if she had heard it.
This comment could not reasonably have been construed as a warning, or as in any way said to be taken seriously.
The London Launch
The launch of the London office was fixed for 7 April 2005. I deal with Mrs MacLennan’s medical problems below; but, she contracted a throat infection at the end of March and lost her voice. On 31 March, there was an important launch meeting, which she could not attend; but Mr Enos asked her to join the meeting by telephone conference call, so that she could at least listen to what was being discussed. She says that she tried to speak – but also fed in comments into the meeting by contemporaneous email – and felt worse after the call.
The launch duly took place, on time and on budget, on 7 April. On 11 April Mrs MacLennan received a bonus in recognition of the work she had done to ensure that that was the case.
Dublin Meeting: May 2005
On 12-13 May, Mrs MacLennan was due to be at a Hartford conference in Dublin, but she was taken ill on the first day and flew home early (see paragraph 200 below).
She said that Mrs Kelly told her that she had suggested to Mrs Zeller that, because of her repeated illnesses, Hartford should arrange for Mrs MacLennan to see a doctor, but Mrs Zeller was very reluctant and did not think that this was a good idea. Mrs Kelly denied that this conversation with Mrs MacLennan ever took place; and both she and Mrs Zeller denied any conversation between the two of them taking place in which the possibility of Mrs MacLennan seeing a doctor was discussed. Mrs Zeller said that, if Mrs Kelly had raised an issue about Mrs MacLennan’s health in that form, she would have responded positively. Although of course they were concerned for a colleague who was ill and had to return home, they were not concerned about her general health. Mrs MacLennan had given them no cause to be concerned.
I accept the evidence of Mrs Kelly and Mrs Zeller on this issue. Mrs MacLennan herself had still not made any connection between her work and any ill health from which she suffered; unsurprisingly, neither Mrs Zeller nor Mrs Kelly made any such connection, nor did either consider the pattern of illness unusual or concerning; and I accept the evidence of both Mrs Kelly and Mrs Zeller that, as HR managers, if they had had any suspicion of that, they would have taken appropriate steps including the involvement of a doctor.
Adam Dooley
Mrs MacLennan said that she had a number of issues with Mr Dooley, the London Sales Director. Mr Dooley had previously been employed by Planco, the sales arm of Hartford in the US, which had developed a pattern for sales development by employing people who were experienced in any form of sales, rather than in financial services. They then trained them in the financial services aspects of their particular sales. Through Mr Dooley, they hoped to transfer that pattern into the UK. At Planco, Mr Dooley had been a protégé of his line manager in sales, Ms Patti Bosco, a very senior executive in the company who had a reputation for loyalty to the sales consultants she recruited and trained.
Mr Dooley was employed by Hartford to lead and drive the London sales team, as Sales Director. However, he lacked management experience, and some of his behaviour was inappropriate for a senior director as he was. I refer below to his behaviour on a trip to the US with his sales team in March 2005, and his relationship with a sales consultant, Miss Lisa Brown (paragraph 120 and following). He also persistently failed to produce performance objectives etc for his sales staff. His behaviour was recognised as an issue by Mrs MacLennan, and by Mrs Zeller. On 2 March, in one of their regular meetings, Mrs MacLennan told Mrs Zeller that she had found Mr Dooley’s behaviour unacceptable, he was “flirty” with staff and encouraged them to drink, and his behaviour was generally unacceptable. He failed to set objectives for his sales staff, and his relationship with Mr Enos was very bad. At the half yearly review meeting on 9 June 2005 (see paragraphs 131-143 below), Mrs MacLennan’s own journal note records that she had given Mr Dooley “heavy coaching” on matters such as “staff objectives/expectations/compliance [with FS regulation]”, in which she considered he had little or no awareness. Mrs Zeller raised these behavioural issues with Mr Collins, but there is no doubt that Mr Dooley was a difficult man to manage, and his behaviour challenging.
Mrs MacLennan found Mr Dooley’s relationship with two other members of staff, Mr Enos and Miss Lisa Brown, particularly difficult to deal with. I cover those below (paragraphs 109 and following).
She referred to a number of specific episodes involving Mr Dooley, as also particularly stressful. Four involved actual or potential aggression on the part of Mr Dooley towards Mrs MacLennan.
First, in early 2005, two salesmen came to see Mrs MacLennan complaining that they had not been given adequately defined sales targets upon which their performance bonus was to be based. She went to see Mr Dooley about that, and he became aggressive, saying that he would speak to his salesmen and she should have no direct contact with his sales team. Mrs MacLennan told him that he should be more respectful to her, and that she did not have to put up with the attitude he had shown towards her. She also told Mrs Zeller about the incident. The following day, Mr Dooley sent her flowers as an apology, with a message: “Thank you for everything you do for us”. Mrs MacLennan did not consider the gift appropriate, as Mr Dooley ought not to have behaved as he had done in the first place. Second, there was an incident in March, when Mr Dooley “ranted” at Mrs MacLennan about her contacting a member of his sales team about his car loan. The other two episodes are dealt with below, in relation to the 360º review (paragraphs 145-153), and his suspension in August 2005 (paragraphs 122-6).
John Enos and Adam Dooley
The relationship between Mr Enos and Mr Dooley was not an easy one. They had different backgrounds. As I have indicated, Mr Dooley had been Ms Bosco’s protégé at Planco, Hartford’s specialist marketing arm: he had no experience in management or UK financial services. Mr Enos on the other hand had 25 years’ experience in financial services sales, and was the London Branch manager.
As Marketing Director and Sales Director respectively, there was effectively a turf war between them; and neither liked how the other operated. Mrs MacLennan said that they were always going to her complaining of the other, often over petty things (e.g. the design of the Christmas cards). Mr Enos had regular early morning meetings with Mrs MacLennan, where he would often raise issues about Mr Dooley’s suggested failings. Mr Dooley complained to her of Mr Enos’s attempts (as he saw them) to undermine him and his staff. They each seem to have raised these concerns with Mrs Zeller and Mr Collins too.
Mrs MacLennan said that it was part of her HR duties to deal with situations between employees, but she considered the challenges posed by Mr Enos and Mr Dooley were exceptional. It was a matter which Mrs Zeller was aware was difficult and challenging, especially as both were senior employees with potentially overlapping roles. Mrs MacLennan raised it with her on a number of occasions, including at her 9 June 2005 performance review meeting (see paragraphs 131-143 below).
Mrs Zeller thought that the relationship became easier over time; but, certainly, these issues were not fully alleviated until Mr Dooley left Hartford in August 2005.
The Planco Trip
From 5-11 March 2005, there was a planned trip for the new sales team to Hartford’s parent company in the US, Planco. The trip was sales orientated; and there was some issue before me as to whether Mrs MacLennan was required or invited to go. She said she considered there was some obligation: Mrs Zeller said that, although she thought it would be helpful for Mrs MacLennan to go so as to understand sales better, there was no obligation. It was regarded as a perk for Mrs MacLennan.
Mrs MacLennan enjoyed the trip, until the last evening. Although a meal had been arranged in the hotel, Mr Dooley arranged for the team to go out, and Mrs MacLennan went with them. She did not consider that the behaviour of the team, and Mr Dooley in particular, was appropriate. At one stage, he danced on the table at a club. The team arrived back at the hotel, largely drunk, at 3.30am.
Mrs MacLennan said that she was very stressed and worried that they would miss the plane. When she arrived in reception the following morning ready to leave, there was no one else there. She made attempts to rouse the team, which she felt “very disgusted” in having to do. Eventually, after considerable efforts on Mrs MacLennan’s part, they got to the airport and made their flight. However, she said that she was stressed and furious about this episode. Fraser MacLennan’s evidence was that, when he picked her up from the airport, she appeared to be on the verge of tears; and she was apprehensive about seeing Mr Dooley the following day, when they were due to be interviewing together.
Mrs MacLennan said that circumstances suggested that something had gone on between Mr Dooley and two women on the sales team, one being Miss Brown. The day after their return to London, Mrs MacLennan and Mr Dooley were interviewing together, and Mrs MacLennan told him that she considered his behaviour was unacceptable. He apologised, and said that he ought not to have put her into that position. He took her out to dinner that evening, after the interviews. He admitted that he had had both women in his room on the last night in the US, but nothing had happened: they had simply fallen asleep in his room. When Mrs MacLennan later saw Miss Brown, she confirmed that that was the case.
Mrs MacLennan considered that, although Miss Brown’s behaviour was inappropriate, she was new and junior and did not consider any further action against her was warranted. However, with regard to Mr Dooley, she thought that there was no difference between what he had done, and what Mr Enos had done with Miss Osborne; and she thought that action should be taken against him. She considered that, to do otherwise, would be to treat the two men unequally. She discussed it with Mrs Zeller, who took a different view: she considered that there was a fundamental difference in the situation, because Miss Osborne had raised a grievance against Mr Enos, whereas no complaint had been made against Mr Dooley. She had spoken to Mr Dooley, and made it clear that his behaviour had been unacceptable. He appeared to accept that, and said that he would change his lifestyle and behaviour. In those circumstances, although pressed by Mrs MacLennan, she did not consider the matter needed either investigation or any other action. It was not, as Mrs MacLennan now suggests, been left “open-ended”: so far as Mrs Zeller was concerned, there was nothing further to be done in respect of what had happened in the hotel. Although Mrs MacLennan disagreed, that was of course Mrs Zeller’s call.
In relation to these events, there is again some discordance between the evidence of Mrs MacLennan now and the contemporaneous evidence. By way of example, she now says that she did not want to go on the trip but was required to go; and she was furious at the episode and found parts of it disgusting. However, on her return, on 17 March she emailed Mrs Zeller, Mr Dooley and Mr Collins to say how much she appreciated the opportunity to go on the trip, and how invaluable it had been for her and the sales team: “I’m proud”, she said, “to be HR Manager of such a great team!”. She said in her evidence that, on her return, she was told to whom to write, and thank; but it is not clear who asked her to send thank you’s, they were sent to Hartford personnel in London not the US, and, in addition to these internal emails, she sent emails to her friends making it clear that she enjoyed the trip, describing it to one as “pretty much like an 18-30s holiday with work thrown in!”. Those emails are inconsistent with Mrs MacLennan’s evidence now as to her reluctance to go on the trip, and how upsetting that trip was for her. Mrs Zeller said that, although she thought it would be good for Mrs MacLennan to go, it was entirely her decision; and she was happy to go. I am satisfied that she was a willing visitor to the US; she enjoyed the trip and found it professionally useful; and, although unfortunate, she did not find the events of the final night as traumatic as she now suggests.
There is a second example of that discordance in relation to this episode. Her evidence now is that she was concerned because the Planco episode had been left open. Mrs Zeller regarded it as closed; and, in relation to Mr Dooley’s possible dismissal, Mrs MacLennan prepared a statement which said in terms that, after both Mr Dooley and Miss Brown had denied that anything had gone on in the hotel room and after Mrs Zeller had spoken to Mr Dooley about his behaviour in allowing himself to get into the situation he did, she also considered the matter closed until she spoke to Mr Dooley about the rumours of a relationship between him and Miss Brown on 5 May 2005. By email of 2 August 2005, she confirmed to the investigator, James Sweetman, that that statement was true.
Adam Dooley and Lisa Brown
It was against company policy for any two employees to have a close relationship. Although Mr Dooley and Miss Brown denied that anything had happened between them in the US (see paragraph 116 above), “gossip” (Mrs MacLennan’s word) began circulating around the London office that they were having a relationship, and that continued for weeks. Miss Brown’s sales figures were higher than anybody else, and other sales staff started to complain about favouritism towards her. Mrs MacLennan raised the issue on more than one occasion with Mr Dooley, particularly at a meeting they had on 5 May 2005, but on each occasion he denied it in categorical and even (Mrs MacLennan said) aggressive terms. Miss Brown also continued to deny it.
Mrs MacLennan and Mr Dooley had a further long meeting on 6 July 2005, at which the issue arose again. Mr Dooley again denied he was in a relationship with Miss Brown. Shortly afterwards, Mrs MacLennan went to see Ms Rogers (Mr Dooley’s personal assistant), and she showed her a private appointment between Mr Dooley and Miss Brown in his electronic calendar. There was also an email from Mr Dooley to his brother, referring to Mr Dooley having an English girlfriend called “Lisa”. Miss MacLennan raised this with Mrs Zeller, who, after consulting Ms Lesiak and Mr Veitzer in the US, called in an investigator from the Equal Opportunities Development Group of Hartford US, Mr Sweetman, who began his investigation on 29 July 2005 (when both Mr Dooley and Miss Brown seem to have been in New York, prior to another sales team visit to Planco, referred to in paragraph 124 below). Mr Veitzer was also involved.
Mrs MacLennan’s input into that investigation was made on 2 August. The documentary evidence all but conclusively showed there had been a long-standing relationship between Mr Dooley and Miss Brown, albeit post-dating the March US trip. For example, in addition to the email to Mr Dooley’s brother and his diary entries, interrogation of his company mobile phone found that he had made 564 calls to Miss Brown between the hours of 7pm to 7am in the period March to August 2005. The evidence clearly indicated there was a relationship between them and, on that basis, there was a clear violation of the company’s code of conduct between employees, compounded by the couple’s repeated denial. Mr Veitzer advised Mrs Zeller that Hartford had good grounds to terminate Mr Dooley’s contract of employment.
It was expected that Mr Dooley would be very displeased when confronted with this evidence, particularly if he were suspended or dismissed as a result of it. Mrs MacLennan, Mrs Zeller and Mr Veitzer had a conference call prior to Mr Dooley being seen by Mr Sweetman, to discuss the logistics of his removal from the premises, if that were necessary. Mrs MacLennan said that she was fearful, because Mr Dooley had been aggressive towards her in the past; and it was agreed that she would stay well out of the way.
From 3-5 August, there was another visit by Mr Dooley’s team to Planco, although on this occasion Mrs MacLennan did not go with them. Mr Sweetman saw Mr Dooley and Miss Brown on 10 August, following their return. Mr Dooley maintained that there was no relationship: however, Miss Brown did then admit that there had been a relationship between Mr Dooley and her for some time, although not as early as the March US trip.
Mr Dooley was immediately suspended. He was, as expected, extremely exercised and angry when told, and he was escorted from the company premises by Hartford’s security officers. He was summarily dismissed the following day.
Mrs MacLennan, understandably, found that episode very stressful; although, she appears to have appreciated how Mrs Zeller dealt with it. On 14 August, she emailed her saying that she had been “a star” over the issue.
However, there were two codas to this episode. First, during the sales team’s visit to the US, Mr Enos telephoned Mrs MacLennan on 3 August to say that, at a dinner, Ms Bosco had said that, in relation to the gossip that Mr Dooley and Miss Brown were having a relationship, Mrs MacLennan was a liar and was not to be trusted. Mr Dooley was, of course, at that stage being investigated by Mr Sweetman. Mrs MacLennan was upset by the suggestion that she could not be trusted; particularly when, on the return of the team, one of their number told her that he was not prepared to talk to her frankly because she could not be trusted.
On 30 August, after the dismissal of Mr Dooley and during a series of meetings in Dublin to which I shall return (see paragraphs 154 and following below), Mrs Zeller and Mrs MacLennan were due to meet Ms Bosco, who was over from the US. Mrs MacLennan wanted to raise the subject of Mr Dooley with her, to say that she (Mrs MacLennan) was not responsible for the rumours about him, and to ask her (Ms Bosco) to give some reassurance directly to the sales staff that she could indeed be trusted, following the comments she had made to the staff on their US trip. Mrs Zeller agreed that it was important that Mrs MacLennan restored her professional relationship with Ms Bosco (who was effectively in charge of sales since Mr Dooley had left), but did not consider that raising it directly in a meeting with her would be the most productive route to that end. Mr Dooley had been dismissed, because of his relationship with Miss Brown. The sales force knew that. She considered that the better course would be for them both to meet Ms Bosco on 30 August, and deal with outstanding HR issues, but without overt reference to Mr Dooley. That was the best way, considered Mrs Zeller, of Mrs MacLennan being restored in Ms Bosco’s eyes. That is what happened, and Mr Dooley was never raised as a specific issue with Ms Bosco. Mrs MacLennan said that that made her feel “alone”.
However, again the contemporaneous documents do not bear that out. It would be wrong to say that Mrs MacLennan was left out alone in respect of this matter. She and Mrs Zeller wished the same outcome – a restoration of confidence between the various employees – but Mrs Zeller had a different route to that end. Insofar as Mrs MacLennan wanted trust and confidence to be rebuilt between herself and Ms Bosco on the one hand, and herself and the sales staff on the other, Mrs Zeller considered that the best approach was a gentle one rather than one which might involve confrontation with Ms Bosco, whose protégé Mr Dooley had been. She knew Ms Bosco far better than Mrs MacLennan did, and that judgment has to be given some respect. The course of action followed in any event appears to have had some success. The meeting on 30 August was a good meeting; and Mrs MacLennan also conceded that Ms Bosco was thereafter always “fine with [her]” (20 January 2011 Statement, paragraph 242). In fact, there is scant evidence that Mrs MacLennan had any significant difficulties during her remaining time at Hartford as a result of any earlier loss of confidence between her and either Ms Bosco or the sales consultants.
Second, Miss Brown raised a grievance about the manner in which both Mr Dooley and she had been treated over their relationship. Mrs MacLennan had had first-hand involvement in the matter to an extent (e.g. she had been on the March 2005 US trip), and accepted that she “had to remain neutral” in the investigation. However, she was asked to take the note of the grievance hearing. Miss Brown objected to her doing so, on the basis that she “could not be trusted”, and Mrs Kelly (who was in charge of the investigation stage) agreed that someone else should take the note – not because she or Mrs Zeller mistrusted Mrs MacLennan, but because it might save future problems if Miss Brown’s request was granted. However, Mrs MacLennan reacted strongly: she said that, if she were not reinstated, she would raise her own grievance about that. She saw William Carroll (then Hartford’s Head of Corporate Governance and in-house Counsel, based in Dublin) who agreed that she should be reinstated as the note taker, a function which she duly performed at the grievance hearing of Miss Brown on 14 December 2005.
Performance Review
Hartford had a system of formal performance reviews, twice a year. They were designed to set objectives for the forthcoming period, and assisted with the determination of bonuses. They were therefore backward looking at past performance, but also in part forward looking in terms of setting future objectives.
The review was performed by the employee’s line manager, i.e., in Mrs MacLennan’s case, Mrs Zeller. The employee would first produce a self-assessment in which he would set out how he considered he had met his previous performance objectives, which the line manager would consider with other evidence and the employee’s performance objectives, before giving the employee a performance level grade for each objective. The grades ranged from “does not meet expectations”, through “partially meets expectations” and “meets expectations”, to “exceeds expectations”, the highest level. The form and proposed grades were then discussed with the employee, before being finalised. The employee had an opportunity to make his own comments, before the form was signed off and filed.
Mrs MacLennan having joined in November 2004 was due to have her first review in May 2005.
The meeting between Mrs Zeller and Mrs MacLennan to discuss the review appears to have taken place on 9 June 2005. Because of time constraints, Mrs MacLennan had not produced a self-assessment before then. Mrs Zeller had graded her performance level against each objective as “meets expectations”. Mrs MacLennan was disappointed with that, and in her oral evidence she was quite clear that she went to that meeting with the hope of persuading Mrs Zeller that the grade should be raised to “exceeds expectations” in respect of a number of objectives. She left the meeting understanding that Mrs Zeller had agreed to rethink the provisional ratings that she had given Mrs MacLennan, and on areas in which she could further develop.
Considerable time was spent at the hearing on the issue as to whether the heavily noted form that is available from that review was annotated by Mrs MacLennan at, or after, the meeting: Mrs MacLennan said that the notes were all made at the meeting, whilst Mrs Zeller said that that could not have been the case because such heavy writing would have disrupted the meeting. She would have noticed it, and she did not.
Whilst I am not sure that the issue is of any great importance, I do not consider that all of these notes were made at the meeting. I accept the evidence of Mrs Zeller that, for Mrs MacLennan to have written such extensive notes during the course of a meeting (even if it did last an hour or so) would have been disruptive to the flow of the meeting, and she did not see the notes being made to that extent.
In coming to that conclusion, I also take into account the nature of the notes. Mrs MacLennan said that, that meeting having taken place, she did not envisage producing a self-assessment for Mrs Zeller: she assumed that Mrs Zeller would complete the form, and sign it off. However, in the light of the contemporaneous documents, that cannot be right. On 20 July 2005, some time after the meeting, Mrs Zeller emailed Mrs MacLennan to ask for her performance review, and enclosing her own by way of example. And on 5 October 2005, she again emailed Mrs MacLennan (whilst she was off with chickenpox) saying:
“We never finished your written review! I was waiting for you to do self assessment after our verbal review in June. The employee survey asks if you have had a review in the last 12 months. I will write up one this week and send it to you for review...”
Mrs MacLennan responded within ten minutes, saying:
“With my performance review – I wrote up comments and examples on the performance review, I needed to discuss this with you, it’s in the office but can do next week – with regard to the Survey I marked that I have had a review because I considered that I had and that I regularly receive feedback from you.”
Therefore, although something went wrong and the written six month review was never completed, it is clear that both Mrs Zeller and Mrs MacLennan left the 9 June meeting on the understanding that Mrs MacLennan would produce something else in writing, self-appraising what she had achieved against her performance objectives.
This was a performance review, and the focus was on Mrs MacLennan’s performance. So far as Mrs MacLennan was concerned, the main purpose of both the meeting and any further comments in writing afterwards was to persuade Mrs Zeller that her performance against the objectives was better than she had assessed; and the focus was consequently on how well she had done, in the face of real HR challenges in the previous six months, rather than any difficulties she had in coping with those challenges.
The notes, to a very large extent, go to that issue. Many smack of advocacy for Mrs MacLennan’s view rather than a record of a discussion. In the notes, there is emphasis on the HR challenges that Mrs MacLennan had faced, and (she considered) met, during her first six months: e.g. the recruitment of 24 staff and induction of 26 staff, the inappropriate behaviour of both Mr Enos and Mr Dooley, and the design of management training. In relation to “Employment relations”, one note reads: “Handled various ER issues with good outcomes for company & individuals”. Although some of the notes on that document may have been written at the meeting, I find that most were written after the meeting as an aide memoire for Mrs MacLennan who was to prepare a further document for submission to Mrs Zeller.
On 14 December 2005, Mrs MacLennan supplied Mrs Zeller with a document, in free-style but involving objectives and self-assessment; and it was suggested by Mr Platt that that was part of the same six month review process – but I do not accept that. The note covers Mrs MacLennan’s first year, and is clearly part of her yearly review which fruited in the document that eventually found its way onto her personnel file. That document is headed “Annual Review”. The six monthly review does not appear on the file, and appears never to have been completed in written form.
Whilst I accept that some issues affecting future performance may well have been discussed at the 9 June meeting, Mrs MacLennan’s notes have to be considered in the context of her objective of persuading Mrs Zeller that her past performance had exceeded expectations. The reference to “HUGE WORKLOAD” suggests that that was something, in terms of performance, that she had coped with, rather than something she had not; although elsewhere it was also a recurring theme between Mrs MacLennan and Mrs Zeller that Mrs MacLennan needed further assistance going forward because of the number of employment relations and other HR issues with which she had to deal. Mr Melville relied heavily upon a particular note, by “Conflict Management”: “John Enos/Adam Dooley MEGA ISSUES V. STRESSFUL”, with a line to a further note, “NOT COPING/MANAGING AGGRESSION”. In her statement (21 January 2011 Statement, paragraph 175), in line with what I have identified as her main objective, Mrs MacLennan explained that note in terms of an attempt to persuade Mrs Zeller that she deserved a higher grade than mere “met expectations”. The note refers only to the relationship between Mr Enos and Mr Dooley as being “very stressful” – no other aspect of her job – and Mrs MacLennan said that she made clear at the meeting that she found dealing with the Mr Enos/Mr Dooley issue as “very stressful”. Mrs Zeller said that the word “stress” was not used at the meeting: had it been, she would have remembered it. The focus of the meeting was on performance, and there was no suggestion by Mrs MacLennan that she was unable to cope, or that she was suffering stress as a result of the work situation, or that her health was suffering or in the future might suffer. Mrs Zeller was very firm on that point. I consider that it is unlikely that this particular note was written at the meeting, and unlikely that reference was made to “stress” at the meeting. However, if it was, then I am quite satisfied that it was not intended to convey a message that Mrs MacLennan’s health had suffered because of work, or that there was a risk that it would in future suffer; nor was it understood as conveying that.
Therefore, in summary, I consider that Mrs MacLennan’s note was to a large extent not written at the meeting: but in any event, whenever Mrs MacLennan wrote that note, I do not accept that, at the meeting, she gave the impression that she was unable to cope with any aspect of her job, or that she found any aspect of the job stressful. That would have been entirely contrary to her primary objective at the meeting, which was to persuade Mrs Zeller that, although she wished to have some further assistance because of her workload, she could cope with her work, and had done so to exceed expectations during the previous six months. On that point, I accept Mrs Zeller’s evidence.
At about the time of the performance review meeting (i.e. June 2005), Mrs Zeller and Mrs MacLennan agreed that the former would call each day, to discuss what Mrs MacLennan was doing and what else needed to be done. Mrs Zeller considered that that degree of micromanagement was required, because of Mrs MacLennan’s lack of focus and pursuit of matters that were not critical for her to do. That again is a reflection of Mrs MacLennan’s tendency to become unduly involved in matters outside her proper scope, and her perfectionist trait in relation to all matters with which she dealt.
360º Reviews
Hartford had a 360º review process for each senior employee, in which feedback reports were prepared by staff both junior and senior to that employee, and submitted electronically to a consultant in the US who prepared an overall appraisal of the individual, with a view to improving performance. These were important, not least because not only performance objectives but bonuses were linked to them. The feedback prepared by employees on other employees was intended to be confidential, in the sense that the final appraisal was meant to disclose individual comments but only anonymously. The integrity of the process would of course be compromised if employees subject to it knew or could work out which fellow employee had given particular comments or opinions: of course, junior employees might be restrained from giving honest opinions of their seniors, if those seniors were able to find out, work out or guess who had made adverse comments about them. Once the final reports were available, the subjects of them would go to Dublin to receive them and discuss them. They were also encouraged to address any deficiencies identified with those they worked with, including, of course, any who happened to have given feedback on them.
Mrs MacLennan was asked to give feedback on Mr Enos, Mr Dooley and Mrs Zeller as part of the 2005 process. Of Mr Enos, she said (amongst other things), that he had potential but, around performance, his conduct needed to improve. Of Mr Dooley, she said that his was “not Managing Director level performance”. Of Mrs Zeller, she said that she abdicated decision-making, and Mrs MacLennan did not have confidence in her being able to develop in the future.
After the London senior staff had been to Dublin for their debrief, Mr Enos saw Mrs MacLennan and said that, whilst he was fine with his feedback, Mr Dooley was “on the warpath”, and was “pissed” at the feedback Mrs MacLennan had given him. He was, he had told Mr Enos, going to “take [Mrs MacLennan’s] head off”.
Mrs MacLennan, in her written evidence (21 January 2011 Statement, paragraph 195), said that she thought it was possible to work out who had given you adverse feedback, because of the small nature of the London office. In her oral evidence, she said that she was “a little concerned and taken aback” when Mr Enos told her that Mr Dooley appreciated that she had given negative feedback on him. She went to see Mrs Zeller, who said she wanted to talk to Mrs MacLennan about her own review, and that Mr Dooley had every right to talk to her about his. Mrs MacLennan also said that Mrs Zeller told her that Mr Dooley had every right to be upset about his review. When Mr Dooley saw Mrs MacLennan about his appraisal, she said he started off by being charming, but became aggressive. He played her a voicemail message from Mrs Zeller, which said that she too wished to take up her appraisal with Mrs MacLennan “and thought it could only be [her] that gave [Mrs Zeller] the feedback”.
Mr Melville submitted that this was evidence that Mrs Zeller and Mr Dooley had discovered that Mrs MacLennan had given them both negative feedback, and, as senior managers, had discussed this behind her back, undermining both her and the review process.
I accept that the 360º review process, as a process for the small London office, was flawed, as Mrs MacLennan’s statement suggests, because the number of staff was so small that it might not be impossible to work out or at least guess from where particular feedback had come. That flaw was compounded by the fact that the objects of appraisal were encouraged to discuss their appraisal with their relevant colleagues, who would have included those who had given feedback. However, in my view, Mr Melville’s submission goes too far.
Mrs Zeller said that she did not know who had given what feedback for her appraisal, until it was revealed in this claim that Mrs MacLennan’s feedback had been negative. In terms of actual knowledge, that I accept. There is no evidence that those preparing the appraisal in the US had “leaked” the names of the authors of any of the individual feedback comments. However, because of the small number of staff, Mr Dooley thought that he had worked out that Mrs MacLennan had given him negative feedback: he was coincidentally correct, although Mrs Kelly said that her feedback on him was very similar to that of Mrs MacLennan. That is why he confronted Mrs MacLennan.
But, I am unconvinced that Mrs Zeller made the same connection. It is clear from Mrs MacLennan’s journal note that Mrs MacLennan did not understand Mrs Zeller had done so from their meeting; because, when Mr Dooley later told her that Mrs Zeller had her own issues with Mrs MacLennan over feedback, she “said [she] didn’t think she would say that”. Mr Dooley then played her the voicemail. Mrs MacLennan’s journal record of that was as follows:
“Said she was gonna take it up with me – she thought at first it was Glenda not understanding what to do but realises its me now after thinking about it...”.
Because it was part of the system that the object of the appraisal spoke to his colleagues about the comments made on him with a view to self-improvement, it is unclear from that whether Mrs Zeller had thought Mrs MacLennan had given her bad feedback, or whether it was simply a reference to Mrs MacLennan not understanding that post-appraisal discussions were part of the system. I accept that Mrs MacLennan understood it as the former, and was therefore upset; but there is no evidence that Mrs Zeller confronted Mrs MacLennan about it, or that it adversely affected their professional relationship at all thereafter.
Therefore, if it were required, I would find that Mrs Zeller and Mr Dooley did not sinisterly have a discussion specifically over the particular feedback which they each thought came from Mrs MacLennan, behind her back. However, in the context of this case, the more important points are as follows: (i) there were defects in the system which enabled an individual to work out or guess from whom negative feedback may have come; (ii) Mrs Zeller frankly accepted, with hindsight, that, although part of the system, encouraging Mr Dooley to speak to Mrs MacLennan about his appraisal was unwise because of his temperament; (iii) in any event, in relation to feedback, Mr Dooley was patently wrong to confront Mrs MacLennan at all, and certainly in the manner in which he did; (iv) Mrs MacLennan was very upset by that confrontation; (v) thereafter, that incident did not adversely affect the professional relationship between Mrs MacLennan and Mrs Zeller; and (vi) nor is there evidence that it adversely affected the relationship between Mrs MacLennan and Mr Dooley, who was shortly after dismissed.
August 2005
On 24-25 August 2005, Mrs MacLennan went to Dublin for the monthly meetings. There were a number of lead-up meetings. On 19 August, Mrs MacLennan was due to have a catch up with Mrs Kelly, but was at home because she had a bad back. The meeting took place over the telephone. There is no doubt that Mrs MacLennan raised the issue of her workload: her journal note of the meeting (which was clearly written after the meeting, as it refers to Mrs Kelly’s response to some of the agenda items for which she was particularly responsible) has, as more or less the first entry, “Workload!” – and Mrs MacLennan’s workload (and that of other members of the HR team) was duly discussed in meetings in Dublin, so it is natural that it should have been discussed at this pre-meeting meeting.
One particular and important issue at that time arose out of the new London office business initiative to launch a new pension product. Mrs MacLennan said that, after Mr Dooley’s departure, Mr Enos pressed to have a bigger stake in sales, as well as marketing. He wished to move on with the pension product initiative, the plans for which had been brought forward and which required approval by the end of August. If approved, the plan required the hiring of additional salesmen: that would mean significantly more work for Mrs MacLennan. Given her already considerable workload, she wished to be clear as to what Mr Enos’s (and hence her own) priorities were to be. There was also concern, shared by Mrs Zeller, as to Mr Enos’s spending on staff. These issues were discussed at a meeting between Mr Collins, Mrs Zeller and Mrs MacLennan on 22 August, immediately before the Dublin meetings.
There were a series of meetings in Dublin on 24-25 August. One of the first attended by Mrs MacLennan was with Mr Enos and Mrs Zeller, to discuss the preparation of a written business case, organisation chart and job profiles of eleven new staff that Mr Enos wished to recruit for the new project, for the purposes of making a presentation to Mr Collins (who needed to approve the project) the following week. In her evidence, Mrs MacLennan indicated that this would usually have been done by someone in Mr Enos’s team, and she suggested at the time that it should be: but Mrs Zeller and Mrs Kelly said that the preparation of the organisational roles and how they fitted in with the current business structures is core HR work, and I accept that. In any event, Mrs MacLennan was duly tasked with the job. She was to prepare the case, and present it to Mr Collins on 31 August.
She left Dublin on Thursday 25 August. The following day she sent Mr Enos powerpoint slides for the presentation to Mr Collins, and he responded by saying that these provided an excellent summary. However, Mrs MacLennan said that a considerable amount of further work was required to produce a bound structure report that was needed for the presentation, and she prepared this by working over the August Bank Holiday weekend. I have no doubt that a good deal of further work was required, over and above the summary provided on 26 August; but this was the first time Mrs MacLennan had been involved in a presentation to Hartford’s Chief Executive, and the amount of work she did on the project was related to that and her perfectionist trait. She did more on it than Mr Enos or Mrs Zeller could reasonably have expected, and Mrs Zeller particularly pressed Mrs MacLennan not to work that particular, holiday weekend. However, Mrs MacLennan wished to do a particularly good job, and she put in a very substantial amount of time on it. The presentation to Mr Collins and Mrs Zeller on 31 August, for sign off, went well. The project was approved, and went forward.
Mrs MacLennan said that that work on the presentation had to be put in the context of meetings that she had in Dublin on 25 August with Mrs Zeller and Mrs Kelly (a meeting with each, and a third meeting together), at which the work of each of the HR team and future priorities and allocation of that work were the focus. It seems that, of the team, Mrs MacLennan was the busiest. London had more employment and HR issues than Dublin, which dealt more with strategy and what Mrs MacLennan called “fun issues”. The new pensions initiative would impose further work upon her. She indicated to Mrs Zeller that Miss Roberts was “struggling to keep up with the workload”. Because 2005 had been a bad year for business in London – the turnover was £14m rather than the estimated £150m – there was no budget for her to have any further assistance. However, to reduce her future work, it was agreed that an employee engagement programme called “Winning Spirit” would be postponed for the time being. Mrs Zeller said that other initiatives were also shelved at that time.
I accept that, at these meetings, Mrs MacLennan expressed concern about the amount of work that she had, and the likely amount in the future. She wished to have further assistance. She wished to know, of the work she was to do, which was to be prioritised. However, in respect of workload, there is no suggestion in the contemporaneous documents that she said that this was causing her stress, yet alone ill health.
Mrs MacLennan said that her health was raised twice. First, she said that, as in Dublin in May (see paragraphs 101-3 above), Mrs Kelly told her in their one-to-one meeting that she had told Mrs Zeller that she thought Mrs MacLennan needed to see a doctor “and that [Mrs Zeller] had said she did not want to”. Mrs Kelly and Mrs Zeller denied that they had ever had such a conversation and Mrs Zeller said that, if Mrs Kelly had raised an issue about Mrs MacLennan’s health in that form, she would have responded positively. Even at this time, of course, Mrs MacLennan never made a connection between her work and health. Again, I accept the evidence of Mrs Kelly and Mrs Zeller on this issue; and, as with the similar allegation in respect of the May Dublin meeting, I consider Mrs MacLennan is mistaken in her recollection that Mrs Kelly had told her of such a conversation.
Mrs MacLennan also suggested that Mrs Kelly had told her, in the context of her history of coughs and colds, that she (Mrs Kelly) would not put up with what Mrs MacLennan had to do and she would resign. The emails show that there was considerable banter between Mrs MacLennan and Mrs Kelly, and it may be that Mrs MacLennan now recalls something that was said in that manner. However, Mrs Kelly denied that she ever linked any aspect of Mrs MacLennan’s health to her work, or that she had said that she would resign if she had to do what Mrs MacLennan had to do at work. I accept that evidence, too.
Mrs MacLennan now looks back at these August meetings as a crucial time, when her workload was acknowledged to be much – indeed, too much – and more was heaped on her in the form of the additional work for Mr Enos. However, again, I do not consider that the picture she remembers is true. The additional work for Mr Enos was, on any view, relatively modest and time-limited. Even if Mrs MacLennan took longer over it than Mr Enos and Mrs Zeller could reasonably have expected, the work was done within days, even if some of those days were over a Bank Holiday weekend. The meetings with Mrs Zeller and Mrs Kelly on 25 August, far from further burdening Mrs MacLennan, sought to identify the HR work the team had to do in the immediate future, and prioritise and allocate it. A major project (“Winning Spirit”) was postponed as a result, and other potential projects were also shelved; and Hartford were on the road to giving Mrs MacLennan more resources in London, when the budget allowed. It was eventually proposed that that would be in January 2006, something of which Mrs MacLennan was aware.
Fairly regarded, the August meetings simply do not show (as Mrs MacLennan contends) that Hartford as an employer was simply burdening her with more and more work, in complete or any disregard of her health. Indeed, her health was never mentioned at any of these meetings.
September 2005 - 6 January 2006
Mrs MacLennan went on holiday, with her husband, to Cyprus for the period 12-27 September 2005. On that holiday, she contracted chickenpox, as described below (paragraphs 203 and following). When she returned, after a few days at work, well-advanced chickenpox was diagnosed on 3 October, and she had a week off work in respect of that (3-7 October).
Otherwise, in addition to the day-to-day business, Mrs MacLennan was involved in the recruitment of the new sales staff for the new pensions project. Despite being off work, on 5 October, she exchanged emails with Miss Roberts objecting to the implication that that she and Miss Roberts could not cope in London with the inevitably higher level of work required for the recruitment needed for the new pension product. The response from Miss Roberts that day, as she accepted, indicated that they felt able to cope. In cross-examination, Mrs MacLennan said that, even at that stage, they were able to cope with everything being thrown at them: everything they were being asked to do, they were doing and coping with. That is reflected in the contemporaneous documents. On 20 October she emailed Mrs Zeller, by then in her new role in the US, saying that: “All is well and same as usual...”. On 6 December, she again reported to Mrs Zeller: “All is well”. Miss Roberts said that Mrs MacLennan would not misrepresent how things were going in London to Mrs Zeller; and I accept that. In these emails, there is no suggestion that Mrs MacLennan was constantly, or even regularly, subject to undue stress, even if she continued to be busy. There is certainly no suggestion that she was unwell, save for one day (7 December) when she complained of ’flu-like symptoms, although that does not appear to have developed. She was back at work the following day.
In the autumn of 2005, a decision had been taken to base “an experienced HR Director”, senior to Mrs MacLennan, in London. It was proposed that that addition to the HR team in London should be effected in January 2006. However, by the end of October, Mrs Zeller had been identified as taking over from her line manager, Ms Lesiak, as Director of HR in the International Division in the US; and it was decided that the HR Director in Europe should relocate from Dublin to London, where most of the employment and HR issues were raised. Mrs Zeller asked Mrs MacLennan that she knew anyone who could fill that role, at a salary in the region of £80,000-85,000. Mrs MacLennan accepted that that person, if and when employed, would take work off her: there would be an additional team member based in London.
The contemporaneous documents show that Mrs MacLennan was preparing, very actively, for 2006. On 12 December, she sent an email to Mr Enos, setting out the HR programme for the new year and seeking assistance with his business priorities. She said that that was important, because Mr Enos’s priorities were prone to change. Mrs MacLennan denied that she was trying to impress Mr Enos, with a view possibly to taking over from Mrs Zeller as Director; but I do not entirely accept that. Mrs MacLennan was ambitious. She showed that at Legal & General, which she left because she was passed over, in favour of someone she considered was her professional inferior. Although she said that she simply wished to continue at the level she was at in Hartford, that goes against the grain of the evidence. Even if she was not optimistic, she was at least hopeful of getting Mrs Zeller’s former job. And, given that Mrs Kelly was eventually appointed to that job (and Mrs MacLennan considered she was professionally better qualified and experienced than Mrs Kelly), she had grounds for that aspiration. By the beginning of 2006, she was in fact looking for other jobs, and had an interview arranged for the early 2006. She had gone so far as to make enquiries about commuting to that potential new job, which was in Croydon. Certainly, the contemporaneous documents show that Mrs MacLennan considered that she was ready and willing to continue with her job at Hartford (where further assistance was imminent), or move to a job at a similar level at least.
Mrs MacLennan was on holiday from 16 December 2005 to 3 January 2006. For a week of that, she was away on a Danube cruise with her husband, and his mother and brother. She says that, during that entire holiday period, she was ill, and I deal with that below (see paragraphs 209-210). For the reasons given there, I do not accept that Mrs MacLennan was ill throughout her Christmas and New Year leave.
In the event, on 21 December (when Mrs MacLennan was away on holiday) Mrs Kelly was named as temporary cover for Mrs Zeller’s old post; and there are emails in early January from Mrs Kelly to Mrs MacLennan which make that new relationship clear. Mrs Kelly appears to have been formally appointed to the post of Director on 26 January 2006.
Mrs MacLennan had always got on well with Mrs Kelly, certainly at a professional level. The emails reflect that: there is much good humour and banter, as well as mutual cooperation and assistance, in them. Mrs MacLennan denied that Mrs Kelly’s elevation changed their working relationship, and, although (as, earlier, at Legal & General) Mrs MacLennan must have been disappointed in being overlooked, I am not convinced that Mrs Kelly’s appointment caused a sudden and dramatic adverse change in their relationship. The pre-6 January emails do not suggest that it did. However, equally, Mrs MacLennan considered herself better qualified and better experienced than Mrs Kelly, and I have no doubt that Mrs Kelly’s temporary appointment as HR Director at Christmas 2005 spurred Mr MacLennan’s desire to leave and her active steps to obtain another job.
Post-6 January 2006
Although, she said, she had been unwell for some time, Mrs MacLennan said that her illness in January 2006 “hit her like a ton of bricks”.
Her last day at work was 6 January 2006. She visited her doctor on 12 January, when she reported that she had been unwell with a fever and cough for 5 days, which was diagnosed as an upper respiratory tract (“URT”) infection. She returned to the doctor on 17 and 24 January, when she reported that she had been under stress with “long journey long hours” and was diagnosed as “possible mild viral laryngitis”. This was reportage to her doctor; and is the first evidence of anyone making any link between Mrs MacLennan’s work and her health. On 2 February, she went to her doctor again: she was still unwell, but the doctor suggested that she started to plan her return to work on a part-time basis and advised that she avoided excessive “rest” during the “post-viral phase”. On 14 February, she was diagnosed by Dr Cory, for the first time, with “mild cfs”. In March, she was no better, and was referred to Mr A S Bansal, a Consultant Clinical Immunologist at St Anthony’s Hospital, North Cheam.
Until Mrs MacLennan saw Mr Bansal, no medical practitioner had suggested a connection between Mrs MacLennan’s work and her condition. In Mr Bansal’s letter to Dr Cory of 24 April 2006, he said that Mrs MacLennan’s extremely stressful job had “almost certainly... induced a persistent fatigue state”. That was the first suggestion by a medical practitioner that the condition was, or might be, work-related.
However, some days earlier, on 10 April 2006, Mrs MacLennan completed a Personal Statement in support of a claim under Hartford’s PHI policy with Canada Life which, in response to the question, “Please state any factors in your workplace that you feel have contributed to this absence”, she stated as follows:
“Due to work pressure of launching the company, it was expected that I would work in excess of 12 hour days, weekends, holidays. As a result I frequently caught colds, became run down and suffered from stress. Unfortunately I became ill with a virus in January 2006 and have not recovered. My employer has continued to cause additional stress during my illness.”
That form was of course sent to Canada Life, not Hartford.
However, Canada Life sent a claims interviewer (Ms Marta Pabon-Bermudez) to see both Mrs MacLennan (on 15 May 2006) and Hartford (Mrs Kelly and Mr Carroll, on 13 June 2006). Ms Pabon-Bermudez is a nurse, and particularly a psychiatric nurse. After seeing Mrs MacLennan, she concluded that:
“It would appear that work-related issues have affected [Mrs MacLennan’s] mental and physical health and prompted her absence.”
That conclusion was shared with Mrs Kelly and Mr Carroll at her later meeting with Hartford. In that meeting, Mrs Kelly accepted that Hartford were aware of Mrs MacLennan’s heavy workload and said they planned to recruit someone else to assist her in January 2006, but refuted the suggestion that Mrs MacLennan was expected to work long hours or work when off sick, and firmly denied “any work-related issues that might have impacted on [Mrs MacLennan’s] absence....”.
In her statement (21 January 2011 Statement, paragraph 283), Mrs MacLennan said that, “Hartford did not leave me alone after I went off sick”: and, in fact, in the early days (when she had been diagnosed with some sort of URT infection), she appears to have been contacted in relation to Mr Dooley’s claim, and the possible redundancy of one employee. She was also contacted by staff at Hartford, not to discuss work, but to find out how she was. As I have indicated, she was a popular member of staff. When Mrs MacLennan asked Mrs Kelly to stop contact, that was ensured by her. This is simply not a case where an employer relentlessly continued to badger an employee whilst she was off work with illness.
Throughout 2006, Mrs MacLennan wished to return to work, and hoped to do so. Her job was kept open and, in the meantime, she obtained an income from Hartford’s PHI insurers, Canada Life. However, because her absence was clearly not going to be simply short term, an HR consultant was taken on in early February 2006 as a temporary measure. Mrs MacLennan expressed concern – she wanted to be able to return to her job at Hartford – and, on 10 February, she was assured by Mrs Zeller that this was a temporary measure, and her job was indeed being kept open.
Mrs Kelly, now as HR Director, kept in touch with Mrs MacLennan from time-to-time, to see how she was. Given their friendship, and Mrs MacLennan’s expression of a continued desire to return to work at Hartford, that was understandable. In October 2006, a meeting was arranged with Mrs MacLennan to review situation. It was suggested on behalf of Mrs MacLennan that the meeting was a ruse simply to obtain an authority from Mrs MacLennan to enable Hartford to get evidence of her unavailability for the employment tribunal hearing of Mr Dooley’s claim. It is true that an authority was left with Mrs MacLennan at that meeting; but it was completed and sent back by her without difficulty or complaint. It is clear from the contemporaneous documents and the evidence of the attendees as a whole, that the main purpose of the meeting was to see how Mrs MacLennan was, and, in the face of very negative medical reports at that time, to obtain her own views and wishes in respect of returning to work, with or without reasonable adjustments. I reject any suggestion that there was any sinister motive for that meeting. At the meeting, Mrs Kelly made clear that Mrs MacLennan’s job remained open.
In 2007, with Mrs MacLennan still being off work without any prospect of her early return, her job was filled with a permanent replacement. Mrs MacLennan responded by indicating that she still wished to return to work at Hartford, if and when she could.
Her PHI payments continued until 16 August 2009. Hartford’s London office prospered from 2006, but then declined in the general recession. It closed in August 2009. All staff were made redundant, and, under the terms of the PHI policy, Mrs MacLennan was paid a modest lump sum payment and her regular income payments ceased.
Employment History: Overview
Above, I have set out the main aspects of her job at Hartford of which she now complains. I should say that, in her Particulars of Claim and evidence, she refers to other matters, and I have considered all of those. In my view, they do not materially add to the substance of her complaints, and it is unnecessary for me to make any specific findings in relation to them.
Mrs MacLennan said that she enjoyed some parts of her job at Hartford, but found the hours long and some aspects stressful. She said that, increasingly, she was unable to cope with the pressures the job imposed upon her.
There is no doubt that Mrs MacLennan worked hard in her job. Within the HR group (including those in Dublin), I am prepared to accept that she worked the hardest. She worked long hours, particularly prior to the April 2005 launch. She worked in the evenings, and at weekends. Staff rang her at home. London had more employment-related issues than Dublin, and some challenging people and professional relationships.
However, a sense of proportion needs to be maintained. For the reasons I have given in the analysis above, I consider that, now, Mrs MacLennan’s recollection and perception of events and their effects upon her are somewhat distorted.
In relation to hours, she worked 55-60 hours per week, and possibly more, prior to the April 2005 launch. She continued to work long hours after that. However, she was entitled to (and took) compensatory leave when she worked at weekends: between 16 May and 31 December 2005, she had 36 days leave as well as the statutory holidays. This is not a case of an employee being made to work relentlessly, without breaks or rest. Further, Mrs Zeller encouraged her to “work smart”, i.e. adopt working patterns that reduced the hours she had to work, and pressed her to take off weekends and holidays. When Mrs MacLennan wished to work at home (e.g. when commuting by car was difficult because of roadworks), Hartford were amenable to that.
The budget was tight in 2005, but Mrs MacLennan knew that she was going to get further assistance, at a senior level, from about January 2006. Hartford were not deaf to her comments about her workload.
In relation to the nature of the work that she had to do, much of it was challenging; but I accept the evidence of Mrs Zeller and Mrs Kelly, that it was core HR work albeit in the context of a start-up operation with some challenging individuals.
Mrs MacLennan accepted that she enjoyed being busy and stretched; she clearly enjoyed challenges at work. She was well-liked by her colleagues, even the challenging ones. I consider that she was ambitious. She was reluctant to release or not take up work, even when an offer of assistance was made, which it occasionally was. With her personality, she found it difficult to be inundated with work – because she wished to do everything to the very highest standard, and found it difficult to let go of tasks that could (and sometimes clearly should) have been done by others. However, with that exception, there were no performance issues: she was regarded as a hard-working and competent senior HR manager. She made clear, from time-to-time and regularly, that she considered she was being given too much to do: e.g. at the 25 August 2005 meeting (see paragraph 154-164 above): but the context in which this was considered was performance, and not her health. She intended to give, and she gave, every impression of being able to cope with her heavy workload. Indeed, she resented suggestions that she and her assistant, Miss Roberts, might not be able to cope.
Mr Platt faintly suggested that other stressors in Mrs MacLennan’s life contributed to her general stress level, notably the relationship with her husband and his family; but, wisely in my view, he did not pursue that line with any vigour. There is no evidence to support such a proposition.
That deals with the amount and nature of Mrs MacLennan’s work at Hartford. However, as I have emphasised, in stress at work cases, the nature of the work is less important than the effects of that work upon the particular employee. Mrs MacLennan contends that her work undermined her immune system, as demonstrated by the number of infections and illnesses she contracted during 2005. Having considered her employment history at Hartford, I now turn to her medical history.
The Claimant’s Medical History
I have already dealt with Mrs MacLennan’s medical history before she joined Hartford above (see paragraphs 55-67 above).
At Hartford, she said that, from February or March 2005 onwards, “it was like a continuous illness”. As I have indicated, Dr Weir’s opinion that her CFS resulted from a reduced immune system (which itself was a consequence of her work) relied upon her reportage of her own health including a pattern of regular, if not all but continuous, infections and illness during 2005.
Hartford had a system of formally reporting only illnesses that kept an employee off work for a week or more. Otherwise, if feeling unwell, an employee could have time off if he informed a relevant manager. Other than chickenpox, Mrs MacLennan had no illnesses during her time at Hartford which required her to take a week off work, and hence none was formally notified.
The ill-health from which she was subject appears to be as follows.
She seems to have been well until 21 February 2005, when she left work at about 4pm. She emailed Mr Dooley before she left: “Not feeling so hot this afternoon”. She said that a number of staff in the office felt ill. She attended work the following day, but was apparently not quite well until the afternoon.
On 1 March, she had a stomach upset. She was back in work the following day, although she had “butterflies” in her tummy for a couple of days.
At Easter, Mrs MacLennan contracted a cold and a throat infection. She was due back at work on Easter Tuesday (29 March), but stayed at home and did some work from there. Mrs MacLennan said that it was not unusual for her to get URT infections, and she initially could not recall whether she went to the doctor with this one. There is no medical record of a visit, but she said that she did see a doctor (not her usual GP) and he gave her antibiotics, which is supported by an email to Mrs Kelly of the following day. She lost her voice. That is referred to in paragraphs 99-100 above, in relation to the launch of the London office. She returned to the office on (Friday) 1 April when she could not talk properly. She appears to have recovered her voice by (Monday) 4 April.
Mrs MacLennan had an ear infection on 27 April, and, although the precise period is not clear, she appears to have been off work for perhaps three days. By 3 May, she was certainly back at work, and she said to Mrs Kelly: “Feeling 90% better hopefully soon will be back up to speed”. On 4 May, she emailed a colleague to say that she “only had to stay in hospital for one night”; but, in cross-examination, she frankly accepted that that was not correct. She said she did not stay in hospital at all: she went to St Helier Hospital Out-of-Hours Outpatients where she was seen but not given any prescription. There is no medical record of that appointment, in either the hospital or GP practice records.
On 12 May, Mrs MacLennan was at a Hartford conference in Dublin, when she was taken ill. She said she had a headache during the conference, and felt sick. She went to the cloakroom, where she vomited. She also had toothache. Mrs Kelly came to help her, and said she thought Mrs MacLennan should go home. Her flight was altered, and she flew home that day. She was due to go on holiday to Spain on 14 May, and so attended her dentist the following day, 13 May. She emailed Miss Roberts that day to say that she had had “root canal treatment” that day, had to have her wisdom teeth removed when she returned from holiday and was suffering from a virus. However, there were no complications with the dental work, and she did not go back to the dentist for further treatment: and it is clear that, whatever treatment she may have had that day, it was not root canal treatment. The “virus” to which she refers is also something of a mystery: Mrs Kelly and Mrs Zeller could not recall her being sick in Dublin, only having toothache (and, in Mrs Kelly’s case, Mrs MacLennan saying she felt unwell), her dentist did not suggest that any illness the previous day was tooth-related and, although she went to her dentist that day, she did not visit her doctor in respect of any illness.
However, she said in her statement (Statement 21 January 2011, paragraph 141) that she was ill throughout her two week holiday in Spain; indeed, “too ill and exhausted to enjoy the holiday”. Fraser’s evidence too was that she was “too ill, exhausted and drained to enjoy the holiday (16 January 2011 Statement, paragraph 26); although neither statement gives specifics as to the symptoms of that illness. Mrs MacLennan did not see a doctor on that holiday. There is no suggestion in the contemporaneous documents that she was ill when she returned to work on 31 May. I return to the alleged illness on this holiday below (paragraph 206).
On 28 June, Mrs MacLennan was unfortunately involved in a road traffic accident, when a vehicle ran into the back of her car at a set of traffic lights. Although there is no record, either at the hospital or with her GP, Mrs MacLennan said that she went to St Helier Hospital to be checked out. She suffered minor bruising and whiplash. On 4 August, she said to Mrs Kelly in an email that she was still unable to look over her shoulder. There is of course no suggestion that there is any connection between her work and those injuries.
On the weekend of 13-14 August, Mrs MacLennan had a recurrence of her chronic back pain. She had a physiotherapist appointment on 15 August, and worked at home on 18-19 August. There is a reference in an email of 18 August 2005 to Miss Roberts that Mrs MacLennan had worried about “reaching the loo in time”; but that appears to have been as a result of her bad back, rather than any other problem. Again, there is no sensible suggestion that this episode was in any way related to her work.
On 12 September, Mrs MacLennan and Fraser went to Cyprus on a two week holiday. It is likely that she contracted chickenpox in that period.
The evidence as to how she was during her holiday is not consistent. On 13 October, after her return to work, she emailed a friend to say that Cyprus was “fantastico”, the villa was “great” and she had spent most of her time “reading whilst drinking champagne”. In her evidence to me, Mrs MacLennan said that that was only during the first week. After that, she said, she had a rash (which she thought might be mosquito bites), and felt tired and lethargic. However, she did not refer to being unwell whilst away when she emailed Mrs Zeller on her return on 28 September; nor to any of the friends she emailed then. Fraser’s evidence (Statement 16 January 2011, paragraph 34) was that Mrs MacLennan was ill throughout the holiday – he said they thought it was a bad case of the flu – and, for the first week and a bit, she could hardly move. That timing is entirely inconsistent with the evidence of Mrs MacLennan herself. Again, Mrs MacLennan did not visit a doctor whilst on holiday, nor did she suggest that she felt ill on her return. She returned to work, and only went to the doctor when the spots eventually suggested to her that she should.
Whilst I accept that Mrs MacLennan may possibly have felt slightly unwell in Cyprus, as the chickenpox infection took hold, I am not at all persuaded that she felt substantially ill at any time during that holiday, and certainly not throughout it. The evidence of Mrs MacLennan and her husband was inconsistent as to when and what symptoms she had whilst on holiday; and, in circumstances in which Mrs MacLennan did not seek to withhold from Mrs Kelly and others at Hartford when she was symptomatic, it would be extraordinary if, when she returned, she had not referred to any illness that she suffered on holiday. On her return, she went straight back to work. For similar reasons – notably the lack of any contemporaneous support, and the non-specific nature of the symptom reported – I am also unpersuaded that she was significantly ill on her holiday in Spain, earlier in the year.
Mrs MacLennan was off work with chickenpox for a week (3-7 October 2005). During that period, she had her work laptop; and appeared to be anxious to get back to work. On 6 October, she emailed Miss Roberts saying that she could not wait to get back to work.
Mrs MacLennan returned to work on 10 October. She only had one further day off work before 6 January 2006: on 7 December, she was off with ’flu-like symptoms. She was back at work the following day and, far from considering that that short illness was caused by her work, she wrote an email she simply said: “Tis the season”.
Nevertheless, she said that, from November, it seemed as if she had a constant cold, for which she took Lemsip every 4 hours, and vitamins. That continued through her holiday on the Danube with Fraser, his mother and brother, from 19 December, when she said she was unwell all trip with a cold, and spent most of the time in the cabin asleep (Statement 21 January 2011, paragraph 274); and on into the New Year. She still had cold symptoms, and was still taking the same treatment, when she returned to work on 3 January 2006. Again, she did not visit a doctor during that period, nor are there any contemporaneous documents referring to any illness.
Mrs MacLennan felt very unwell at work on 6 January, whilst conducting an interview. She felt light headed, and Fraser collected her. She attended her doctor on 12 January, when she reported that she had been unwell with a fever and cough for 5 days, and she was diagnosed as having a URT infection. That is in itself telling. Although she now says that she suffered for cold symptoms throughout November and December 2005, and particularly whilst on holiday over Christmas and the New Year, she informed the doctor that she had had symptoms from which he diagnosed a URT infection for only 5 days.
I deal with her condition thereafter above (paragraphs 171 and following).
Medical History: Overview
Whilst other witnesses also suggested she was more or less persistently or constantly ill that year (e.g. Fraser MacLennan, Mr Naughton and Miss Roberts), the contemporaneous documents and other evidence compellingly paint a different picture. The evidence simply does not support Mrs MacLennan’s assertion that she was “constantly ill” throughout 2005.
Prior to contracting chickenpox in September, whilst at Hartford, leaving aside matters not possibly linked to her work, her illnesses were restricted to (i) feeling unwell for a couple of days from 21 February, (ii) a stomach upset and “butterfly tummy” for a few days in March, (iii) a cold and URT infection over about a week after Easter, (iv) and ear infection over few days in late April and (v) vomiting for a day on 12 May in Dublin. There are no infections or other relevant illness or ill-health from mid-May to her contraction of chickenpox.
That pattern of illness, in Prof Cleare’s view, is neither unusual nor above average in extent. Certainly, it is consistent with the contemporaneous emails etc, which do not suggest that Mrs MacLennan was otherwise ill, or that she gave anything other than ordinary explanations for the illnesses she did suffer, or that she did not recover in the usual course from the various illnesses from which she did suffer. It is also generally consistent with her reportage to medical practitioners which suggested that she was in tolerably good health prior to contracting chickenpox. For example, as late as February 2008, Prof Hotopf (a consultant psychiatrist) records:
“Having been fit and well [Mrs MacLennan] developed chickenpox in September 2005 and fell ill on her 30th birthday....” (emphasis added).
So far as those doctors were concerned, earlier ill health would have been important for diagnosis and prognosis. The failure of Mrs MacLennan to tell them of illnesses during 2005 prior to her chickenpox strongly indicates that, in 2006, she herself did not consider those illnesses unusual, or of any materiality or seriousness. That is reflected in what she reported to her own doctor when she first saw him on 12 January 2006, after falling ill at work on 6 January, i.e. that she had been ill with (the doctor thought) symptoms of an URT infection for 5 days, i.e. only since she collapsed at work the previous week. Mrs MacLennan did not consider her illnesses in 2005, at the time, as extraordinary in any way.
Furthermore, whilst her previous history shows that she did attend her doctor, with (e.g.) gastroenteritis and coughs and colds when she considered her condition warranted it, she only a had couple of doctor’s appointments that year.
Nor did she make any link between her work and any illness, until after 6 January 2006. In her evidence she faintly suggested that she may have done, but Mr Melville frankly (and quite properly) conceded in closing that there was no evidence that she made any such connection until after she contracted CFS. There is indeed no such evidence.
Looking at the evidence as a whole, it is quite clearly not the case that Mrs MacLennan was constantly ill throughout 2005. The illnesses she suffered were modest, and not unusual in pattern or severity. Even assuming that she was ill in Dublin in May, no relevant illness or ill-health was suffered between mid-May and September when she contracted chickenpox. Further, at the time, neither Mrs MacLennan nor her doctors did connect any of these illnesses to her work.
Medical Causation
I now turn to the first main issue in this claim, medical causation.
It is submitted on behalf of Mrs MacLennan that, but for the nature of her work at Hartford, she would not have contracted CFS. I set out her case above (paragraph 41). She contends that the overwhelming stress which she suffered at work undermined her immune system, reducing her body’s ability to defend itself against infectious diseases as evidenced by her record of illness in 2005. Her chickenpox triggered her CFS; but, had her immune system not been undermined by stress at work, she would have recovered from chickenpox unexceptionally, without contracting CFS. Even if she had not contracted that particular chickenpox when she did, her immune system was such that she would have contracted some other serious virus within a short time after, and that would have triggered CFS in any event.
Given the current state of medical knowledge and opinion, this argument on causation is bold. It appears uncontroversial (and, insofar as it is, I accept Prof Cleare’s evidence) that there is no proven causal link between stress or a deficient immune response on the one hand, and CFS on the other. These are difficult and developing areas of medical science.
However, the evidence in Mrs MacLennan’s specific case points to a clear conclusion on the issue I have to determine. In respect of the undermining of her immune system – a crucial link in the chain of causation Mrs MacLennan seeks to prove – she relies primarily upon Dr Weir. He said that, if Mrs MacLennan had suffered consistent illness throughout 2005 (as she suggested to him that she had), then that would be clear evidence of an undermined immune system as a result of stress at work; and he would conclude, on the balance of probabilities, that that deficiency resulted in her contracting CFS. However, he conceded that, if she had not had any relevant illness from mid-May to the contraction of chickenpox in September, then there would be insufficient evidence of a deficiency in her immune system to support his hypothesis; and he would conclude, on the balance of probabilities, that she would have contracted CFS after her chickenpox in any event. There is no evidence of a relevant illness in that period (see paragraph 218 above); and, hence, on Dr Weir’s evidence, Mrs MacLennan’s case would fail on medical causation.
Dr Winbow initially considered that Mrs MacLennan’s CFS began in March 2005 (when Mrs MacLennan had, even on her own account, suffered virtually no illness whilst at Hartford); but he had revised his view by trial. He agreed that chickenpox had triggered the CFS, as a result of an undermined immune system. He did not particularise the evidence upon which he relied to show that undermining, except to say that she had had a number of illnesses – and perhaps he relied upon Dr Weir in that regard. In any event, on this issue, Dr Winbow did not provide substantial independent support for Mrs MacLennan’s case.
Prof Cleare did not consider that stress at work was involved in Mrs MacLennan’s CFS, for the reasons set out above (see particularly paragraph 42 above).
As I have said, in the light of current medical knowledge and opinion, medical causation is a substantial hurdle for Mrs MacLennan to overcome in this case. On the evidence, given the pattern and nature of her illnesses in 2005, I am not satisfied that her stress at work caused any diminution in her immune system, nor am I satisfied that her CFS resulted from a reduced immune response. On the facts of this case, the expert evidence is, overwhelmingly and all but unanimously, against those propositions.
Looking at the claim as a whole, those conclusions are unsurprising. Dr Weir (and Dr Winbow) based their original opinions upon a factual background in which Mrs MacLennan was enormously stressed at work, which led to an immune deficiency which itself resulted in numerous and persistent illnesses. However, the evidence firmly points towards (and I have found) that Mrs MacLennan did not find work overwhelmingly stressful nor did she suffer from numerous or persistent illnesses, undermining the entire basis for both the conclusion that her immune system had been rendered deficient by stress and the secondary conclusion that that had resulted in her contracting CFS after chickenpox.
For those reasons, Mrs MacLennan has failed to satisfy me that her CFS was caused by stress at work. As a result of that conclusion on this issue, the claim fails.
Foreseeability
However, even if I have been persuaded that Mrs MacLennan’s CFS had been caused by her work, she would have faced the further task of showing that it was reasonably foreseeable to Hartford that Mrs MacLennan was at risk of suffering CFS or a similar kind of harm.
I consider the law relating to foreseeability above (paragraphs 10-22). An employer is entitled to assume that an employee can withstand the normal pressures of the job, and an employer’s duty to consider taking steps to protect the health of the employee only arises if the circumstances of the particular job or particular employee warrant it.
In relation to Mrs MacLennan’s job, there was nothing in it to give rise to such a duty. No occupation is regarded as intrinsically dangerous to health (Hatton at [43(3)], quoted at paragraph 11 above); and there is no evidence that Hartford ought to have foreseen that Mrs MacLennan’s job was such as to give rise to a risk to health. For example, there is no evidence of anyone else at Hartford, in HR or elsewhere, becoming ill as a result of their work. Even if Mrs MacLennan worked harder than some, and possibly harder than all in their HR group, there were others at Hartford who worked very hard indeed; and Mrs MacLennan was not the only one to have to face the challenges of certain individual staff members. Indeed, she was in a better position than some, because of her background in HR: she was aware of the risk of stress at work, and the adverse consequences that might flow from it.
Nor did Hartford have actual knowledge of any predisposing characteristic of Mrs MacLennan. The experts are agreed that her psychiatric background predisposed her to contract CFS and other psychiatric conditions; but Hartford did not know of that background, nor is it suggested that they ought to have done.
Mr Melville relied upon the following evidence to show that, prior to Mrs MacLennan contracting CFS, Hartford had actual knowledge that the illnesses Mrs MacLennan was suffering were work-related:
The two occasions on which Mrs MacLennan alleged that Mrs Kelly had told her Mrs Zeller had declined to refer her to a doctor, in May 2005 in Dublin and during the late August 2005 meetings. However, I have found neither of those allegations proved (see above, paragraphs 101-3 (May allegation), and paragraph 160 (August allegation)).
The response by Mrs MacLennan to the question about how she coped with stress in the psychometric test questionnaire in the summer of 2005 (“By getting colds and being ill”). However, I have found that that could not reasonably have been construed as a warning, or in any way comment intended to be serious or one which ought reasonably to have been taken seriously (see paragraph 93-8 above).
An email from Mrs Kelly to Mrs MacLennan on 3 May 2005, in which she said: “You poor woman.... we are making you ill!!!! Not good....”. However, that email was in response to an email earlier that day (referred to in paragraph 198 above): “Feeling 90% better hopefully soon back to speed”. Mrs Kelly denied that Mrs MacLennan ever indicated to her that work was making her ill, and gave her straightforward explanations of her illnesses. This email was not an indication by Mrs Kelly that she actually thought that work was causing Mrs MacLennan illness: it was only banter. I accept that.
I am quite sure, and find, that neither Mrs Zeller nor Mrs Kelly ever actually considered that the any of Mrs MacLennan’s illnesses were related to her work. Indeed, for them to have made such a connection would have been quite remarkable: leaving aside Prof Cleare’s view that such a pattern of illness is quite normal, neither Mrs MacLennan herself nor her doctors made any connection until after she had left work in January 2006. Nor did they actually consider that her health was placed at risk by her work.
Nevertheless, Mr Melville submitted that they reasonably ought to have done. He submitted that there were sufficient signs of impending harm to Mrs MacLennan available to Hartford to trigger its duty to take steps to prevent her falling ill, as follows.
First, he submitted that Hartford were put on notice of impending harm to Mrs MacLennan’s health simply by virtue of the number of hours that she was required to work. However, that submission is incorrect as a matter of principle and law. The proposition that foreseeability can as a matter of law be established purely on the number of hours worked has been rejected by the Court of Appeal: the amount of hours is just one element comprising the nature of the employment, and all the relevant facts have to be considered in assessing whether the harm to health suffered by an employee was reasonably foreseeable by the employer (Packenham-Walsh v Connell Residential PUC [2006] EWCA Civ 90 especially at [45] per Pill LJ: see also Sayers v Cambridgeshire County Council [2006] EWHC 2029 (QBD) at [189]-[194]).
In any event, her hours were not in themselves obviously overwhelming. She worked long hours of 55-60 hours per week, and sometimes more, which included some evening and weekend working. However, the length of those hours is relative – indeed, there was evidence that others at Hartford, albeit not in HR, worked longer hours – and Mrs MacLennan received both a bonus for the work she did for the launch and day-for-day compensatory leave for weekend working. She had 36 days leave, plus statutory holidays, from 16 May 2005 to the end of the year. Furthermore, she was aware, from late 2005, that it was proposed to recruit another senior HR person for London, effective from January 2006; and, when she complained of too much work in August 2005, HR initiatives were shelved to avoid her having yet further work. As I have indicated above, this was not a case of an employer relentlessly working an employee without breaks or rest.
Second, Mr Melville submitted that the pattern of Mrs MacLennan’s illnesses ought to have put Hartford on notice that her health was at risk from her work. However, leaving aside the issue of medical causation dealt with above, Prof Cleare considered that her illnesses were unexceptional in terms of pattern, regularity or severity. Mrs MacLennan never suggested to Hartford or any third party that the common illnesses from which she suffered were a result of overwork, nor did she make any connection between her work and her various illnesses, nor did she consider or suggest that her work posed a risk to her health in the future - neither did her doctor make any such connection, or make any such suggestion. No one at Hartford made the connection, nor could they reasonably have been expected to do so.
Third, he relied upon evidence of Mrs MacLennan’s appearance over her time at Hartford. Mr Naughton said that she “visibly deteriorated” and was “obviously rundown”. Fraser also spoke of her general poor health. However, (i) in the light of the other evidence, which spoke of overwork and occasional illnesses that resolved but not of anything like general malaise, I do not accept this evidence insofar as it suggests a visible deterioration in Mrs MacLennan’s health; and (ii) even if she appeared “run down” that would be far from sufficient to put Hartford on notice that she at risk of some form breakdown or even less sudden physical or psychiatric condition.
Fourth, Mr Melville relied upon evidence that Mrs MacLennan made it clear to Mrs Zeller that found some of the HR issues at Hartford challenging, especially those involving Mr Enos and Mr Dooley; but challenging or difficult work is not in itself an indicator of risk to health. He also relied upon evidence that Mrs MacLennan became upset at work (e.g. after her confrontation with Mr Dooley over the 360° review) or even frightened (e.g. when Mr Dooley was suspended). However, (i) these episodes were rare, (ii) Mrs Zeller took active steps to ensure Mr Dooley and Mrs MacLennan were kept apart at the time of his suspension and (iii) in any event, employees may get upset from time-to-time without that being any indicator that their health is at risk from work.
Fifth, there was strong reliance upon Mrs MacLennan’s indications (notably to Mrs Zeller) that she was overworked, and her requests for assistance with her work (e.g. at the August meetings). However, although she did raise concerns from time-to-time, she also accepted that she enjoyed being stretched, and was often willing to take on work assignments etc and unwilling to give up work. In any event, she made no suggestion that her health had been compromised by her work, nor that it was at future risk. She rarely, if ever, referred to her work being “stressful”. (Evidence of her use of that word at the 9 June 2005 performance review meeting is considered above: paragraph 142-3). When she did, it was not intended to suggest (nor did it reasonably suggest) that her health was at risk from her work. “Overwork”, “difficulties coping” and even, at times perhaps, “stress” were mentioned, but not often; and only ever in the context of performance, never in the context of her health.
Furthermore, in considering these matters, and Hartford’s response to them, it is only right to take into account that Mrs MacLennan was herself in HR. As an HR manager, she knew generally about stress at work and its potential adverse consequences, and the importance of making an employer aware of stress and any perceived risks to health or functioning. She was also well aware of the company’s grievance procedure, which she was prepared to use over her removal from note-taker in the Miss Brown disciplinary (see paragraph 130 above). Of course, she did not make any connection between her work and her health, and perceived no future risk; but Hartford were entitled to take into account the fact that, had she done so, she was well aware of the appropriate steps she could and should take.
I have taken into account all of the markers which, Mr Melville submitted, ought to have put Hartford on notice. However, when these factors are taken discretely or in aggregate, in my judgment, despite the best efforts of Mr Melville, Mrs MacLennan has fallen very far short of showing that Hartford ought reasonably to have foreseen that, as a result of her work, she was at risk of suffering CFS, or any form of physical or mental breakdown, or indeed any physical or psychiatric illness. The evidence simply does not support such a case.
On that ground too, this claim fails.
Conclusion
As I said at the outset of this judgment, it is uncontroversial that Mrs MacLennan has CFS, which she has found debilitating over a lengthy period of time. For 6 years, she has been unable to work. Prior to contracting the condition, she was a diligent, hard-working and competent HR manager, popular and professionally esteemed her colleagues. Even leaving aside the awful tragedy of the loss of her husband in an accident last year, her story is a sad and tragic one. Nothing in this judgment derogates from that.
However, an employer is only liable for an employee’s condition when (i) that condition was caused by the employment, and (ii) when the employer is legally at fault. In this claim, for the reasons set out above, I am satisfied neither that Mrs MacLennan’s CFS was caused by her work, nor that Hartford were at fault in that they could not have foreseen that her work placed her at risk of injury to her health.
The claim is consequently dismissed.