King v Medical Services International Ltd

This is a claim for damages for psychiatric injuries allegedly caused by harassment and bullying at work by one of the Claimant’s colleagues, Dr Al Muhairi, for which it is alleged the Defendants are vicariously liable. The Claimant also alleges breaches of Section 1 of the Protection from Harassment Act 1997 and the Management of Health and Safety at Work Regulations 1999, negligence at common law and breach of contract. In closing submissions Counsel for the Claimant conceded that the claim in contract could not succeed if the other claims failed.

The Defendants accept that the Claimant has and continues to suffer from a psychiatric condition, but deny causation. They assert that even if Dr Al Muhairi's conduct was demanding it fell short of bullying and harassment. They assert that the state of her marriage, concern for her second son who is on the autistic spectrum, and the state of her physical health was/were the operating cause or causes. As the case has developed they have also relied on general pressure of work as a cause. They rely on the fact that the Claimant raised no formal grievance against Dr Al Muhairi as contra indicating a breach of duty alternatively as contributory negligence. Allegations that the claims are statute barred have not been pursued.

The Claimant has no previous psychiatric history nor is there any such history in her family. The expert psychiatrists consider this to be a complex case.

The Claimant (DoB 24th December 1957) is now 54 years old. She was born and raised in Peterhead, Scotland and attended local schools. She obtained a BSc in Pharmacy and worked as a pharmacist in London before joining the Cromwell Hospital as a pharmacist in 1983. Her career advanced speedily and she became a manager. She became Manager Administration in 1992 and joined the Executive Committee and in 1999 became the hospital's Executive Manager with responsibility for medico-legal matters, clinical governance, clinical audit, risk management, customer services and human resources, which included training, development and recruitment. In 1990 she had obtained an MBA and a Diploma in Marketing. She also has qualifications in Risk Management and Claims Handling and became a Fellow of the Institute of Management. She married over 20 years ago and has two sons born in 1992 and 1993 respectively, the younger of whom is on the autistic spectrum.

Holding down a demanding job and bringing up her family would have made substantial demands on her time. There can be little doubt that she was an ambitious and successful career woman, responsible for running staff, well used to dealing with those in authority and highly regarded. The Defence acknowledges, indeed asserts, that she "dealt with men at all levels of authority and experience and of varying cultures and groups with whom (she had) always had extremely good working relationships". Sadly the picture changed dramatically in August 2006 when she had to cease work because of a mental breakdown.

At the time with which I am concerned the Cromwell Hospital was owned by a member of the Abu Dhabi Royal Family and run via the Abu Dhabi Investment Office who operated the hospital by means of the Defendants, a UK registered company. Decisions on policy were made by the Board, who were expected to take into account the requirements of their Arab masters. The day to day operation of the hospital was the responsibility of the Executive Board.

About 10 - 12 years ago changes began to be introduced at the hospital. At that time Dr Hameed was the Chief Executive Officer (“CEO”). In 2001 Dr Al Muhairi was appointed to the Board. He was then appointed as a Senior Physician in Nuclear Medicine, although it appears he did little clinically. In December 2003 he was appointed Deputy CEO to Dr Hameed. In June 2005 it was announced that Dr Hameed was stepping down as CEO and that Dr Al Muhairi would be Acting CEO. Meanwhile in February 2005 Professor Britton, who I was told had been Dr Al Muhairi's professor when he trained at Barts. Hospital, was appointed Chairman of the Board. I was told, and accept that, in particular between 2003 and June 2005, there had been a power struggle between Dr Al Muhairi and Dr Hameed.

To complete the background picture, in December 2006 the hospital was acquired by a joint venture between the Rotary Group Ltd and the Canadian Hospital Network International. Then in March 2008 it was acquired by the BUPA group. Dr Al Muhairi remained Acting CEO until December 2006 and then became President of the hospital until March 2008 when BUPA took over. It appears he retains some links with the hospital via the Defendants, or an associated company, who, I understand, lease the hospital premises to BUPA.

In 2008 the Claimant brought and lost a claim in the Employment Tribunal concerning the Defendants' failure to pay bonuses. The present claim was issued on 20th August 2009 and served in December 2009. There had been no letter of claim and I was told the first the Defendants knew of it was when proceedings were served in December 2009.

The substance of the Claimant’s case is that her breakdown was caused by harassment and bullying by Dr Al Muhairi. Para 9 of the Particulars of Claim alleges that from April 2003 onwards Dr Al Muhairi

“.. adopted an ongoing and continuous course of conduct towards her from which emerges a picture of over-familiarity, innuendo and inappropriate physical contact; use of intemperate and aggressive language; personal and professional humiliation; disrespectful, intimidating, pedantic and undermining behaviour; veiled threats and blackmail. It is apparent that there was much underlying rancour, spite and cruelty.”

In support the Claimant relies on some 45 incidents occurring between April 2003 and 23^rd August 2006. Paras 43 – 44 of her witness statement state :

“Taken individually and on their own the various incidents I refer to…may not at first sight seem to be of sufficient gravity to have an impact on an experienced manager such as myself and to be responsible for my eventual breakdown in August 2006 but I believe that when considered together they demonstrate a deliberate intention on Dr Al Muhairi's part to humiliate and demean me or at least a complete disregard as to whether such behaviour was likely to cause me to feel humiliated and demeaned.

I believe that Dr Al Muhairi deliberately set out to destroy me for reasons known only to him."

In evidence the Claimant whilst continuing to rely on incidents which occurred in 2003 and 2004, relied in particular on those occurring from March 2005 onwards down to and including 22^nd August 2006. On 22^nd August 2006 she left an Executive Meeting in a distressed state. The following day she attended her general practitioner who certified her unfit due to work related stress. She has never returned to work but remains employed by the Defendants. During her absence she has received 75% of her salary through the Defendants Private Health Insurance (“PHI”) scheme with UNUM. At one stage UNUM decided the Claimant was no longer eligible for such payments but that decision has recently been successfully appealed and payments have now been made down to 31st March 2011. Eligibility thereafter is under consideration at present but in the light of the available medical evidence it is reasonable to conclude that payments will continue for the immediate future.

There is no dispute that her breakdown has manifested itself in mild to severe depression with symptoms of PTSD and that she continues to suffer from psychiatric problems. In the course of giving evidence over 2½ days she broke down frequently and often left court when others were giving evidence.

Dr Hameed became the CEO in 1991. The Claimant had known him when he was a GP. He encouraged her in her career and she said she had a good working relationship with him for virtually all the time he was CEO although he "lost his way” towards the end. But she rejected suggestions that he had been someone in whom she could trust and confide, stating he tended to play people against each other. She also rejected the suggestion that his leadership had been paternalistic as some of the Defendants' witnesses said. She said he started as a visionary but later as the Arab owners began to court him he began to look to his future. She said there was then nobody to trust within the organisation and added "It put me in an incredible difficulty".

Between 2002-2005 she worked with both Dr Hameed and Dr Al Muhairi when the power struggle was going on, which she said the Executive perceived as a struggle to appoint Dr Al Muhairi as the CEO. She said she saw little of Dr Al Muhairi following his appointment to the Board until 2003. Towards the end of 2003 into 2004 he started to confide in her more and she was asked to help him on things he did not understand. She saw more of him especially after he was appointed as Acting CEO in December 2003. She denied that she had backed Dr Al Muhairi in the power struggle. She said her concern had been for the future but she observed that Dr Hameed had been there for a long time and that the Arab owners were saying they would not invest in the hospital if Dr Hameed remained as CEO. She denied that she had worked against Dr Hameed's interests and strongly denied that Dr Hameed had said that she and Mr Anderson, a fellow member of the Executive Committee, had been disloyal to him - "Never, never, never !" She denied that an email she sent to Mr Anderson in early March 2005, when he was on holiday, notifying him of changes on the Board and stating that Professor Britton had been appointed chairman which produced the comment "Good news about the Board I suppose" suggested they were both pro Dr Al Muhairi.

In addition to her own evidence she relied on evidence of her work colleagues, Mr Stewart Anderson and Mrs Lorraine Weekes, and the consultant psychiatrist, Dr Hopley. A witness statement served from Mrs Aldyth MacKay, who was due to give evidence from Australia by videolink, was not relied on. I was also provided with a witness statement by a Mr Johnson, a recruitment advisor, which had been served late on the Defendants. He was not called, admission of his witness statement was objected to, and I refused the Claimant leave to rely on his evidence.

At the outset of the case Mr A John Williams, counsel for the Defendants, stated an application would be made to rely on a witness statement made by Dr Al Mulhairi. Later he said no such application would be made. In support of their case the Defendants relied on the evidence of Mrs Clarke-Rossi, Miss Brenda McKay, Miss Karen Middleton and the consultant psychiatrist, Professor Murphy.

I propose first to summarise the evidence given by each witness on general matters but to deal with their evidence concerning the detailed allegations made when dealing with those allegations.

The Claimant provided a 78 page witness statement to which she exhibited a curriculum vitae and a total of 242 pages of copies of documents relating to her work and relationships at the hospital. In it she sets out her background and working history and says she had never been the subject of a grievance or disciplinary action.

In the witness statement she says that initially Dr Al Muhairi appeared professional, courteous, and friendly but over time he became rather familiar. For example, he would take her hand and make a play of dragging her away, he would make "cooing" noises on the telephone and make comments about her clothes and the way she looked ; he would telephone her at home at night and weekends on non-urgent business. She described this behaviour as “bizarre” and said she was uncomfortable with it. Following his appointment as Acting CEO in July 2005 she said he changed : he showed her little respect, constantly undermined her and tried to find fault with everything she did.

On 29^th June 2005 he informed the Executive that Dr Hameed would be leaving the following day and that he would be the Acting CEO. At an Executive Committee on 6^th July he stated that all communications with Dr Hameed should be in writing and through his office, that any communication with Professor Britton, the Chairman of the Board, should be through him and that there should be no prior direct contact with Professor Britton. He also announced that a secure access system was to be installed in the mews where the offices of the Executive Committee were located.

Shortly before he left Dr Hameed told her that Dr Al Muhairi’s appointment was intended to be temporary, that she should apply for the post of CEO and asked her for a CV/resume to provide to the Sheikh. She said that mindful of Dr Al Muhairi’s injunctions not to deal with Dr Hameed she approached Dr Al Muhairi, told him what Dr Hameed had said and sought his advice. She described his reaction as extraordinary, first laughing as if mocking her, then becoming aggressive and shouting at her “Do you want it ?” “I suppose you think you are the only one who could do it. Do you want it ? Tell me ?” He then ended the meeting and said he would speak with her about it but never did. She decided to drop the matter.

Just afterwards and still in the first week of July he telephoned her when she was on the way home and asked if she was available as he wanted to introduce her to some VIPs from the Abu Dhabi royal family, which he said was important for her future position. She says she took this to be a threat. She agreed to return but said it would take about an hour whereupon he said that would be too late and put the ‘phone down. She regarded this as bullying.

In evidence she said that Dr Al Muhairi could be friendly : he used to say to her things like "This is not good enough for you because you are special". He used to ring her at home so she had obtained a second telephone. She had not told him not to telephone her because that was not her nature but he would have known it was not appropriate. He had mentioned personal matters concerning his wife and when he did she changed the conversation. She said she totally accepted that she should have asked him not to discuss such things with her. She had done nothing to indicate his conduct was unwelcome. She described this behaviour as bizarre and inappropriate and discussed it with her colleague, Mr Anderson. She later said that this sort of personal behaviour ceased in about March 2005 because she had distanced herself from him. But other behaviour took over.

It was suggested to her that because there were difficulties in her marriage perhaps she had welcomed attention from Dr Al Muhairi. Her reaction was to say “Oh my God!” She later observed that he was ten years younger than she was and that she thought “What the heck is he doing”. She said she supposed she had “rationalised” it, but did not explain how.

She accepted that he had a tendency to raise his voice but rejected the suggestion that he practised “micro-management” responding that he was a "dictator" and a "megalomaniac", that she had thought that at the time, and that when he became Acting CEO he changed from a pleasant to an "awful awful person".

Mr Anderson's initial employment at the Cromwell had been as a clinician, then he became an administrator. Although he had had close contact with the Claimant at the hospital he said he had seen her only about once a year since she had ceased work. He had been declared redundant in January 2007 and was on gardening leave from May to November 2007 when his contract was terminated unilaterally. His subsequent claim for unfair dismissal had been settled. In his witness statement and in evidence he said that after he became Deputy CEO Dr Al Muhairi used to confide in him, met him frequently and rang him frequently even when he was abroad on holiday. He said that Dr Al Muhairi had asked him which other executive he could trust and he had named the Claimant. In 2004 executive colleagues, but not the Claimant, had signed a letter stating they could not work with him (a tactic he said had earlier been employed to remove another executive). The attempt to remove him was thwarted and Dr Al Muhairi later told him that the Claimant had assisted him in thwarting the attempt. He said that after this Dr Al Muhairi increasingly sought the Claimant's assistance and both he and the Claimant had been invited to meet Professor Britton when the latter was appointed as a new member of the board.

He too said Dr Al Muhairi began to behave very differently after he became Acting CEO. Dr Al Muhairi no longer sought meetings with him, made derogatory comments concerning him on two occasions and became increasingly dictatorial eg by removing a coffee bar from the entrance hall and discarding uniforms for receptionists although these was newly purchased stock worth £20,000. He also demonstrated paranoia, being concerned about confidential information being exchanged with others and instructed Mr Anderson to sweep the mews premises for listening devices.

He said that as a natural counsellor he tended to play down emotional conflict and therefore sought to play down various incidents which at first he put down to Dr Al Muhairi being under increasing pressure from Abu Dhabi. But, he said, this could not explain "his changed demeanour and sheer disrespect shown to Sandra over an extended period. I considered this was not normal workplace pressure, it was unjustified and unfair" and culminated in what happened at the 22nd August 2006 meeting. He said he had observed her distress over many months and was increasingly concerned about her well-being. He found the changes in Dr Al Muhairi's behaviour inexplicable, his management style in some ways quite alien, especially in asking managers to report directly to him, thereby bypassing the executives responsible for those areas. There was no doubt in his mind that the Claimant "was singled out by Dr Al Muhairi as the main target for his ire".

His written statement largely confirmed incidents involving the Claimant which he had witnessed and/or discussed with the Claimant. I deal with his observations, together with what he said about these in evidence when dealing with the incidents themselves. On paper his evidence was straightforward enough.

His oral evidence took one day. In the morning he was discursive but I felt his concern was to help me understand the machinations which he portrayed as being at that time a constant undercurrent at the hospital. He was keen to stress the history of the hospital, its early turnover of CEOs which led to uncertainty, and political intrigue present during Dr Hameed's tenure from 1991-2005. He said Dr Hameed had told him that the Arab owners would make very significant demands. He said that within a few years of Dr Hameed's arrival the Arab owners organised two investigations by consultants, one of which was done by a Sheikh Al Shamsi, who had recommended that the only two executives worth keeping were the Claimant and him. He saw it as relevant to the whole case.

He said that Dr Al Muhairi could speak loudly and abruptly, sometimes excitedly. He flirted at times and at first this was considered funny. He could be charming and "very jokey". It had come as a complete surprise to both him and the Claimant when Dr Al Muhairi had been made Acting CEO. He described the Claimant as very professional. When she complained to him about Dr Al Muhairi he used to tell her to calm down saying "I’m sure he didn't mean it". He said the criticism was continual. He did not know that her health was at risk but was concerned that she was getting increasingly upset. She used to say things like "I can't meet with this man. I can't cope with him." He said he did not want her to make a formal complaint, he thought Dr Al Muhairi would soon go, there would be a reorganisation, and they would be invited to reapply for their posts. When Dr Al Muhairi had asked their managers to report directly to him he had said to the Claimant that Dr Al Muhairi did not know what he was doing, he was totally inexperienced. His approach had been to stop meeting with Dr Al Muhairi. He advised the Claimant to keep away from him but she could not. He said it would have been pointless reporting matters to Professor Britton as it would not have led to an effective resolution : Professor Britton was there to do what he was told.

By contrast, his initial conduct in the witness box after the lunchtime adjournment was quite astonishing. He was voluble, tapping heavily if not banging on the files before him, and speaking so loudly that counsel had to ask him to soften his tone. He launched a tirade against Dr Al Muhairi. When asked whether he had talked to anyone about the case over the adjournment he said his wife had queried how he was feeling and was concerned about his condition. He was concerned that he had not got over to the court how badly the Claimant had been treated. He launched into an attack on Miss Brenda McKay's evidence, presumably having read her witness statement or been told of its contents, describing her understanding of what had gone on as "pathetic", "amateur psychology" and "crap". It was necessary to adjourn for a short time.

On resumption he was a little but not totally subdued and his language from time to time was a little strong and emphatic for someone who had presented himself as someone who played down difficulties. He sought to argue the Claimant's case. He referred on a number of occasions to the fact that Dr Al Muhairi was running the hospital by "diktat" not discussion.

He was taken through some of the incidents. I deal with his observations on them when dealing with those incidents. He said, after dealing with the redundancies issue, that he would not have expected some of these matters to have affected the Claimant. He later said that he expected her to be able to cope and that if she kept away from Dr Al Muhairi "there would not be any conflagration". He would have expected the Claimant to have protected herself : "she was a tough cookie. She would have coped with it". Now she was now a totally different person. He said he knew the honesty of the Claimant : if she said it happened, it happened. He said he felt guilty that he had not realised the impact on the Claimant and that he had failed her.

Mr Anderson turned out to be a partial witness. He and the Claimant had been close allies at work. I am sure he set out to assist the court and in some respects he did, but he failed to demonstrate a balanced approach and, where matters in dispute are concerned, I feel it necessary to approach his evidence with caution.

Mrs Weekes became the Claimant's personal assistant (“PA”) in October 2001. She had been absent on sick leave in May 2006, then returned to work, was again absent on sick leave in August 2006 but returned to work in September 2006. She resigned in April 2007.

In her witness statement she said she was not surprised to discover that the Claimant was on sick leave as she knew full well the cause of her problems. For some time previous there had been a noticeable deterioration in the Claimant's demeanour from being a confident senior manager to what she described as a "nervous wreck". She said the cause in her view was solely Dr Al Muhairi's conduct towards her which had continued over a long period of time and seemed to get worse. She said she had not directly witnessed many of the incidents described in the Claimant's witness statement but had first hand experience from early 2005 (she corrected this from 2004 in her witness statement) onwards of the Claimant's ever increasing anxiety and loss of confidence. She referred to numerous occasions when the Claimant would return from meetings with Dr Al Muhairi clearly distressed, agitated and upset, go into her office and close the door. In her witness statement she says that in the end the position with Dr Al Muhairi had become "generally well known" : in evidence she said this meant "within the office where they worked, which in effect was within quite a limited compass.

I shall refer to her evidence about individual incidents when dealing with those incidents.

In evidence she said she had prepared her own witness statement with the Claimant's statement before her. She said that in early 2005 she used to be called to Dr Al Muhairi's office sometimes two or three times a day to assist him, which interrupted her work for the Claimant. He also asked her to become his PA behind the Claimant's back, which she was uncomfortable about. In the event a temporary secretary, Annabel Gray, was employed to assist the Claimant. She said that Ms Gray had complained to her about advances Dr Al Muhairi had made towards her, which she, Ms Gray, had rejected. She recalled that Dr Al Muhairi had been unhappy about the Health Creation launch, which he had demonstrated by waving his hands. She did not remember him raising his voice with the Claimant except in a 'phone conversation where she had been told afterwards that he had raised his voice. He had raised his voice once with her for describing him as "he" in an email : she apologised and he calmed down.

She said that by early 2006 you could see something was wrong with the Claimant. What she was doing was not being met with approval by Dr Al Muhairi : she did not witness this but was told it in confidence by the Claimant.

Mrs Weekes witnessed very little that occurred between the Claimant and Dr Al Muhairi. The source of much of her understanding was what she had been told by the Claimant, to whom she was loyal. She accepted uncritically what the Claimant told her. I am satisfied that in 2006 and perhaps earlier the Claimant was perceived by Mrs Weekes as not being herself, that at the same time the Claimant was complaining about Dr Al Muhairi's behaviour and that Mrs Weekes therefore attributed the change in the Claimant to Dr Al Muhairi's behaviour. Mrs Weekes made no reference to being aware of the Claimant's domestic problems.

Against this background the Defendants deny causation. They accept/aver in their Defence that Dr Hameed had been "generally relaxed" in his management of the Claimant. They aver that it was part of Dr Al Muhairi's remit "to improve the financial performance of the hospital and, to this end, he was more proactive than Dr Hameed in the management of the hospital finances and ensuring the hospital was getting value for money." It is admitted that he would raise his voice when speaking to members of staff, including the Claimant, but denied he was abusive or aggressive. It is admitted that he would ring members of staff out of hours but denied this was done without good reason. They assert that Dr Al Muhairi had a "friendly and open personality. The Claimant was attracted to (his) personality and responded to him in a positive manner" and that she was keen to impress him. They assert that the Claimant's perception/interpretation of conduct she now alleged amounted to bullying, harassment and/or sexual harassment is both misplaced and unreasonable. They deny that the Defendants ought to have known that the Claimant was at risk of suffering any form of psychiatric injury as a result of Dr Al Muhairi's alleged conduct and further deny that the allegations if proved satisfy the legal test for forseeability as set out in Hatton v. Sutherland [2002] 2 AER 1 (see below).

They also allege the Claimant was guilty of contributory negligence in :

The Defendants relied on the evidence of Mrs Clarke-Rossi, Miss Brenda McKay and

She was now HR Director at the hospital and had been responsible for dealing with the claim on the Defendants' behalf. It had been her task to deal with discovery and liaise with the Defendants' solicitors. She has made a number of witness statements, many dealing with procedural matters.

From 2003 she had reported to the Claimant. She explained that the HR department was not in the mews where the Claimant's office was but that but she used to speak to the Claimant frequently on the 'phone when the Claimant was driving to work and at meetings. She said she knew that Dr Al Muhairi was not happy with the arrangement whereby the Claimant did not arrive at work until 11am as one day he had rung with an HR query, the Claimant was not there, and he expressed his displeasure. She recalled one other occasion when he had been critical of the Claimant. He had shown her a page from a salary review by Jackie Reeves identifying, she said, the Claimant as being the only executive who was underpaid. She said she was very surprised that he had done so and did not regard it as appropriate. At that time she was reporting to the Claimant. It had been said in confidence and was not something she passed on to the Claimant. She would not have been happy if it had been said about her.

From August 2006 on she had worked closely with Dr Al Muhairi. She said he required support to carry out his role and relied heavily on others.

In her witness statement dated 6th July 2011 she said that Dr Al Muhairi had a different approach from Dr Hameed and saw his role as identifying those staff who were not supplying the appropriate support. He did so by adopting a "micro-management" approach. She described it as a big change for the Executive. She added that Dr Al Muhairi relied on the Claimant who clearly contributed to the business, knew the consultants well, had long service at the hospital and was respected by certain stakeholders.

Her view was that the Claimant and Dr Al Muhairi got on well together and were "very comfortable in each other's presence". She said the incidents described in the Particulars of Claim came as a great surprise to her. She said the Claimant had never complained to her about Dr Al Muhairi's conduct. She did not recall any issue arising over accommodation provided for the Claimant after the flood, she had not been a witness to other incidents of which the Claimant complained and was not aware that the Claimant had been in tears as a result of Dr Al Muhairi's conduct.

In evidence she described Dr Al Muhairi as "a very robust” CEO who expected things done in a certain way and expected people to do what he asked. But she had never seen him lose his temper or use inappropriate language, such as appeared in the letters of complaint by Mr Karandwala and Miss McKay, whose allegations would have given her concern in her capacity as HR Director. She considered Dr Al Muhairi was a competent CEO.

In her witness statement of 6th July she had commented that throughout the correspondence with the Defendants’ PHI provider, UNUM, not once was there reference to anything which would throw light on the background to the cause of the Claimant's work related stress. In the same statement she had said that an occupational health report from Sally Jobling dated 27th June 2007 was "the first and only time there is any reference to the Claimant indicating she had been harassed, undermined and bullied at work". She also stated that when the Claimant gave an account of her daily activities to UNUM she "appeared to be very able, she (was) reported to attend art, knitting and floristry" amongst other activities.

In evidence she accepted that these first two assertions in her statement were wrong when confronted with a letter from UNUM dated 5th December 2006 stating that both the Claimant's GP and treating consultant had confirmed that the Claimant had spoken to each of them on several occasions about the numerous difficulties relating mainly to her relationship with her immediate manager and that the Claimant had advised that on occasions she had felt both bullied and harassed by her manager which had led to the incident at the executive meeting (ie the 22^nd August 2006 meeting) when she had felt very threatened and humiliated and had no option but to leave. She had no comment when it was pointed out to her that the art, knitting and floristry were intended to be therapeutic. She also accepted that there was no justification for what Nick Hudson, the Defendants' head of HR in 2007 had said to UNUM, namely that the claim was manufactured and the Claimant was always in hospital boasting about the business she ran from home.

Her witness statements give the impression that she was protective of the Defendants' interests. In parts she is adversely critical, wrongly so in some instances, of the Claimant. In my judgment she too readily found explanations consistent with the Defendants' case or which tended to weaken the Claimant's case. She was a cautious witness who considered the questions and kept her answers as short as possible. But I accept her evidence that, contrary to what the Claimant asserts, there was not a general awareness at the hospital, that Dr Al Muhairi was behaving oppressively towards the Claimant.

Miss McKay was first employed at the hospital in the early 1980s. She left in 1989, returned in 1999 and resigned in 2008. She now ran a business consultancy. From 2000 she had served on the Executive Committee. She had been a close colleague of the Claimant's but had been based in the main building not the mews.

She described Dr Al Muhairi as a new broom, whose function was to make the hospital profitable and more efficient. On a personal level she said that English was not his first language and that there was sometimes potential for misinterpretation as a result. He was also very friendly and open although this could be misconceived. There had been some resistance to his appointment by the Executive. He was perceived being imposed by the Arab owners. His appointment as Deputy CEO meant that executives no longer had a direct line to Dr Hameed who she described as paternalistic. He had no experience of running a hospital. She regarded his stay as temporary, borne out by his later appointment as Acting CEO. He had told her the existing executives would have an opportunity to apply for the role of CEO. In his time he increased the turnover of the hospital and initiated changes at executive level, later implemented by the succeeding owners.

In evidence she accepted that she was "robust". She said she always thought the Claimant was a resilient type of person. She would not have thought that the Claimant was suffering from stress and did not regard her as being vulnerable. She had always felt that the Claimant and Dr Al Muhairi had the sort of relationship where they would chat and gossip together and not really take it too seriously. She did not accept that it was generally understood that Dr Al Muhairi's conduct was causing the Claimant distress. He treated her as he did all other members of the Executive.

She could not understand why the Claimant, if she was having difficulties with Dr Al Muhairi, had not complained. The Claimant had been best placed to deal with such problems, having been concerned with the stress audit and the Health Creation programme. In evidence she said the Claimant sat on the Clinical Governance Committee which dealt with similar problems concerning medical staff who were not employees. She said the Claimant could have approached Professor Howard who chaired or had chaired this committee, with whom the Claimant got on well, and who was influential at the hospital.

She said that Dr Al Muhairi would call members of the Executive to check where they were and would turn up to make spot checks. On one occasion he had arranged to meet her at the hospital but did not turn up. She observed in her statement that the difficulty for the Claimant was that she had been so used to being managed by Dr Hameed but then had Dr Al Muhairi who wanted to make sure everyone around him was accountable, and micromanaged as a result. In addition to access to sickness records, he wanted access to the executives’ diaries. He wanted to know what everybody was doing. He thought the executives were not accountable. He changed rotas - "we just had to change and requesting sickness records was just part of the bigger picture of change".

Miss McKay was an impressive witness who I am satisfied was truthful.

She was now a Senior HR Advisor at the hospital. She had been employed at the hospital since 1987 and knew the Claimant well. She had had contact with the Claimant almost daily in 2003 – 2004, reported to her, and met her in meetings every two or four weeks. Since 22^nd August 2006, apart from one conversation, she had had no contact with the Claimant.

In her witness statement dated 1^st June 2011 she said she never witnessed any conduct between Dr Al Muhairi and the Claimant which would have given her cause for concern, nor had she been aware of anything in the Claimant’s behaviour which would suggest that she was suffering from stress.

In evidence she said the Claimant could be quite challenging but also sympathetic, some days fine other days quite sharp and demanding. You never knew what mood she would be in. In response to a suggestion that she could be maternalistic she said “Sometimes yes, sometimes no. She had different facets.” “Some days she could be lovely.”

Both in her witness statement and in evidence the Claimant dealt with numerous incidents involving Dr Al Muhairi. I shall deal only with the more relevant ones. For reference I have given them headings.

(1) Appointment as Secretary (Easter 2003)

Mr Anderson said that Dr Al Muhairi had talked to him about his becoming the Secretary but he had decided against it and that Dr Al Muhairi then told him that Sheikh Al Shamsi was going to put the Claimant forward for Secretary but that the Board Chairman was at first in favour but then against it.

Although the Claimant alleges her appointment was blocked by Dr Al Muhairi, I heard no evidence that that was so. Contemporaneous documents confirm that the Claimant was being considered for the post but that the then Chairman of the Board thought it inappropriate that she should be appointed because she was advancing a case for equal pay for women and that that might conflict with the position of Company Secretary. It is also clear that legal advice made clear to the Board that this was not a sound reason for not appointing her.

I have no doubt that the above events happened but I have been provided with no evidence that the Claimant was used as a pawn as she suggests. I can well understand her disappointment but I do not consider this matter could fairly to be described as part of a course of conduct constituting harassment. Until resurrected as a complaint in this case it seems the matter was very much history.

(2) The incident at the gym (February 2004)

(3) Concerns re Mr Anderson (May 2004)

Given Dr Al Muhairi's reliance on Mr Anderson and the Claimant at this time it seems to me quite understandable that he would wish to protect Mr Anderson. His approaching the Claimant suggests to me that he was acting in Mr Anderson's interests. It may have been inconsiderate of him to ring at night but it is clear from other evidence that ringing employees out of office hours was something he did regularly.

(4) Complaints by Mr Karandala and Miss Brenda McKay (May/June 2004)

On 28th May 2004 Dr Al Muhairi had written to Mr Karandala in terms which Mrs Clarke- Rossi, now the Defendants' Human Resources Director, in evidence described as "strong", accusing him of not allowing a 15% discount on clinical services to the United Arab Emirates’ Military "in defiance with the Board resolutions", undermining the Board's authority and suggesting the action had been deliberate. The letter went on to accuse Mr Karandala of thereby causing mistrust between the hospital and embassy officials, jeopardising business, and being responsible for cash flow crises. Mr Karandala replied that the 15% discount on rooms only was in accordance with a 2002 protocol set up by Dr Hameed, which he enclosed, that Dr Hameed had confirmed this instruction after the relevant board meeting, and denied he was responsible for climbing debts and the ensuing cashflow crisis. He said he was professionally offended by the letter, that the suggestion that he was acting in defiance of a Board Resolution was defamatory and that he found Dr Al Muhairi's remarks and innuendo offensive, entirely misplaced and tantamount to constructive dismissal. In the event Mr Karandala left the Defendants’ employment but received compensation.

Miss McKay had complained about Dr Al Muhairi in a letter to him dated 23rd June 2004, copied to the Board. In it she expressed concern about "the most unfortunate attitude" he had displayed towards her over recent weeks, disagreed with his interpretation of events, expressed her deepest concern at the “inappropriate and unprofessional attitude" he had demonstrated when dealing with staff, and accused him of reprimanding her without being willing to listen to her version of events. She referred to incidents occurring on 28th and 30th May and on 8th June. She alleged he had shouted at her on the telephone" in the most loud and vexatious manner made worse by doing so in the presence of some of my colleagues". She said she was not willing to tolerate any more of his "unwarranted and unprofessional outbursts and that she was aware that other members of staff had made similar complaints".

She identified the “other members of staff” as Mr Karandala. In her witness statement she said that the 8th June incident happened when she was in her car, that Dr Al Muhairi's verbal abuse and shouting down the telephone had been so bad she had to pull over as she was shocked by the outburst and its content.

On 25th June, two days after her letter, Dr Hameed and Dr Al Muhairi sent a memorandum to the Executive Committee stating that correspondence should not be addressed to the Board of Directors, something she saw as resulting from her letter which she had copied to the Board.

She then met with Dr Al Muhairi who, she said, spent a considerable amount of time with her explaining his position, stating that the demands made upon him by the Arab owners could be very challenging, they rang him at all hours, the hospital was making huge losses, his job was to turn it around, he relied on people to do things and that was his way. They agreed to put it all behind them and that is what happened.

Mrs Clarke- Rossi said she had no reason not to accept the truth of what Mr Karandala and Miss McKay were saying. She knew them both well.

I shall return to these two matters later.

(5) The holiday suggestion

I am satisfied that incidents like this were and were at the time treated as banter by the Claimant, albeit that she now presents them in a different light.

(6) Observations about staff

(7) Noor Shakir (Dec 2004)

The Claimant said Noor Shakir was constantly absent from hospital but receiving full pay. In June 2005, due to her non-attendance the Claimant arranged with Dr Al Muhairi that she would interview her. On the day of the appointed meeting Noor Shakir rang to state she had agreed with Dr Al Muhairi that she would not meet with the Claimant or any member of the HR team. The Claimant saw this as Dr Al Muhairi demonstrating a lack of courtesy and professional respect towards her, an example of his undermining her. I accept that this could be seen as undermining but I would not consider it as harassment.

(8) The Christmas gift (2004)

(9) The 29th March incident (March 2005)

This appears to have been the first incident when the Claimant was in tears as a result of what Dr Al Muhairi said or the manner in which he said it. That afternoon she and Mr Anderson had a meeting with Dr Al Muhairi, which she attended, but she said little. Dr Al Muhairi asked Mr Anderson what was wrong and Mr Anderson told him it was not appropriate to shout at colleagues and speak to them as he had to the Claimant. It is not clear whether Mr Anderson told Dr Al Muhairi that the Claimant had been in tears.

The next day Dr Al Muhairi rang her and said "We are going out for dinner tonight". He was light hearted. She says she refused several times but agreed to meet him on Friday 1st April. They met over dinner when he said "Let's not talk about work matters" and then spent almost all the time on the telephone talking Arabic. She said the episode was a humiliation. She left stating she had to see a friend. No explanation or apology had been forthcoming.

On 4th April she told Dr Al Muhairi that they needed to discuss his behaviour towards her which by that time "were a constant source of concern to me". They went to a nearby hotel for coffee and to her surprise he said he was sorry and that she was "in his heart and part of his family" and that he knew that if he continued to behave as he had she would walk away. She says that it may have been the non-British way he expressed himself but she felt he was totally insincere. But the meeting ended amicably. In evidence she said that on this occasion she felt he was “more sorry, at least he was talking about it”. She was pleased she had done it. It worked for a little while.

(10) Mike Gallagher (26^th April 2005)

In her witness statement the Claimant does not provide any detail of what was said at this meeting. Nor does Mr Anderson. In evidence the Claimant said it had been quite shocking to watch. Mr Gallagher had been making a general presentation when totally out of the blue Dr Al Muhairi started attacking him relentlessly about companies on a website. Mr Gallagher did his best to answer. The Claimant says that Dr Al Muhairi’s treatment of Mr Gallagher was a precursor of the way he later treated her.

(11) The annual staff party (29^th July 2005)

(12 Poaching her PA (August 2005)

(13) Using her secretaries

(14) Bank Holiday Sunday (August 2005)

The Claimant made a diary entry about this in which she states that she attended on the Monday, rang Dr Al Muhairi without success, then later had a brief chat with him. Her diary entry on the Tuesday records that she had a long chat with D Al Muhairi "re issues" and he said he wanted to speak to her later. It appears that an "issue" was staff attendance at the hospital. The Claimant said that staff had been in the hospital but had been in the staff flat(s).

Both the Claimant and Mr Anderson regarded this as rather high handed behaviour. The Claimant stated that she thought that Dr Al Muhairi had done this to exert control. That was how she felt at the time. She accepted that if Mr Anderson had been available he would have had to attend. No mention of exerting control appears in her diary, just a straightforward account of events. Another and more sensible way of looking at it is that Dr Al Muhairi on this occasion was properly checking on staff presence over the holiday, found it wanting, including the fact that the on duty executive was not available, and then asked the Claimant as the stand-in executive to investigate, which she did.

(15) The HR incident (31st August 2005)

In her witness statement the Claimant said :

She made a diary note about this meeting in which she records the substance of the above but also that she said she would "personally lead the staff reduction exercise", that whilst he would not show her the external consultants report they had said that the Cromwell had 150 - 180 staff too many and that they went on to discuss a pathology contract. The diary entry has on it in block capitals :

(15) Executive Training (August 2005)

The Claimant was due to attend an event "Leaders in London", in October. Her attendance had earlier been approved by Dr Hameed and paid for. To comply with the new protocol she resubmitted a request for approval. Dr Al Muhairi instructed Ms Garrard to cancel the Claimant's attendance and seek a refund of the fee without first discussing this with the Claimant. At the same time attendance by Mr Gallagher, at a similar event was approved and two executives were allowed to attend a conference in North America despite having attended the previous year.

The Claimant felt the above were deliberate attempts by Dr Al Muhairi to undermine her. Mr Anderson said that at the same time Ms Garrard was given responsibility for uniforms, which had been within Mr Anderson's department, followed by a decision by Dr Al Muhairi that receptionists were no longer to wear uniforms, even though £20,000 had recently been spent on uniforms. Mr Anderson said he wrote a strong letter of complaint to Dr Al Muhairi.

The decision to transfer responsibilities affected both the Claimant and Mr Anderson. I do not conclude that the decision to transfer Mr Anderson's responsibility was an attempt to undermine him and have difficulty in accepting that the decision to transfer the Claimant's responsibility was a deliberate attempt to undermine her as she contends. I do not know why Dr Al Muhairi decided that the Claimant should not attend her course, not having had any explanation from him. He was asserting his authority. His willingness to allow Mr Gallagher to attend a course indicates he was not targeting Mr Gallagher even though he had earlier demonstrated hostility towards him. I am not prepared to find that he had some improper motive, as opposed to his taking the view that her attendance was not necessary, for refusing the Claimant permission to attend the course.

(16) Flooding in the mews (September 2005)

(17) The Sports Medicine invoice (November 2005)

(18) Her son's orthodontic treatment (October/November 2005)

(19) The taxi cab incident (15th December 2005)

Following the dinner, Dr Al Muhairi who was sitting opposite her in a cab, reached forward, put both his hands on her thighs and said "And you were late". She says she was wearing trousers but was "mortified" and made some comment at the time. She felt she wanted to have as little as possible to do with him. She said that Miss McKay, who witnessed this happening, told her that Dr Al Muhairi had put his hands round her chest in a restaurant and she had been equally mortified.

Ms McKay accepted the Claimant's account of what happened but said this had been done in a joking manner to which the Claimant had responded. She said she had earlier forgotten the incident the Claimant had mentioned when she said Dr Al Muhairi's hand or hands had touched her chest. In evidence she said she now remembered this but regarded the contact as accidental. The fact that Miss McKay mentioned her incident suggests she thought more of it at the time.

But bearing in mind that this incident occurred after a Christmas party/dinner I would be inclined to regard this as a light hearted gesture rather than one with serious overtones and prefer Ms McKay's view of what happened. When the Claimant mentioned this incident to Professor Murphy the Claimant she said it was done in a “non sexual way.”

(20) The Claimant's sickness records / The Christmas lunch (December 2005)

Monday 19th December was the day of the staff Christmas lunch. The Claimant, despite not feeling well, decided to attend and her PA notified Dr Al Muhairi of the position. As she arrived she received a call from Dr Al Muhairi asking when she had seen her chest physician. After she arrived she was told by her staff that Dr Al Muhairi in an open email had requested copies of all her sickness records. The email had been sent to the Claimant's PA who evidently notified the Claimant who then emailed Dr Al Muhairi's PA/secretary asking for how far back Dr Al Muhairi wanted the records and whether it was a general enquiry or related to her absence due to the “industrial asthma” she was currently suffering. The response was "Records for the year 2005 please". The Claimant replied : "As the information is personal I would like to see Dr Al Muhairi confidentially. Can I please have a time ?" The response was : "Dr Al Muhairi has asked that that you kindly send this information to him in a sealed envelope marked for his personal attention and it will be opened by him only." All this correspondence took place by email on the 19th December.

Meanwhile Dr Al Muhairi had insisted that someone from HR stay behind to discuss HR issues, Mrs Clarke-Rossi had volunteered, thereby missing the lunch, but Dr Al Muhairi had failed to contact her.

The Claimant says in her witness statement :

I would take some persuading that Dr Al Muhairi had deliberately orchestrated an atmosphere to ruin the lunch. I heard no evidence that it was "ruined" as the Claimant states. His request for someone from HR to wait on him was typical of his requiring others to jump to his attention without regard for their interests.

The Claimant’s witness statement says that she unsuccessfully sought a meeting with Dr Al Muhairi, then went to see Dr Costello to obtain a sickness note and then, on returning to her office broke down in tears as she could not understand why she was being treated this way. She felt "humiliated, threatened and undermined". On this occasion it will be noted that the Claimant's breaking down in tears was not as a result of any verbal aggression by Dr Al Muhairi but the way in which she perceived she was being treated by him.

On 22nd December she wrote him a letter headed "Sickness Absence". In it she stated that she would have preferred to meet with him in person to discuss the above matter "but unfortunately for whatever reason you refused an appointment with me". She stated she had no objection to his seeing her sickness records but had concerns about the way in which they had been requested namely by his secretary in an open email to her secretary "with no regards to confidentiality or indeed copied to me." She noted that the same request had not been made of other members of the Executive Team. She dealt with her absences during the year and then in greater depth with the delay in dealing with the decorating of her office following the flooding, and delay in the hospital's Health and Safety Advisor being involved and the apparent failure to carry out environmental testing which ultimately she had to arrange. She alleged that the hospital may have been in serious breach of its duty to provide a safe working environment for its staff. She said she had done her best as she did not want to let him down, had worked long hours on a current matter and had taken little holiday as he had wanted her to be around. She continued :

I can well understand how the Claimant felt upset by an open request for her sickness records. That was thoughtless and an inappropriate way of approaching the issue. But Miss McKay’s evidence makes clear that the Claimant was not singled out so far as Dr Al Muhairi’s asking to see medical records is concerned. Given that the Claimant was at the time suffering from a chest condition she was asserting was caused by damp in her office there could easily have been a good reason for Dr Al Muhairi wanting to see the records. The Claimant had no objection to his seeing the records. Rather it was the means by which they were requested.

That evening at about 9pm she was still in her office working when suddenly Dr Al Muhairi appeared. She said she felt nervous but tried to control herself. She briefed him on the work she was doing on the Gallagher case. When she asked whether he had received the letter he said no. He asked when she had last seen her chest physician and she asked him whether he had discussed her with the physician to which he said no. In her witness statement she expressed concern at how he would know she was in her office and thought he was "looking for anything possible to have a go at me."

(21) The 23rd December Board debriefing (23rd December 2005)

The Claimant accepted that the Board was entitled to reject the report. But she objected to "the deliberate and dismissive and derogatory tone" Dr Al Muhairi used and "the circumstances in which he used them in front of her colleagues". In her witness statement she defended the report stating that the consultant was well recognised in her field, that Dr Al Muhairi had asked that she update an earlier report which she had done on several occasions, a meeting with her had been arranged but cancelled by Dr Al Muhairi and that he had had the report since September without raising any objections. The Claimant complains that Dr Al Muhairi had "sought to portray the Board's rejection of the report as due to my inability to instruct the correct expert" and "sought to portray me in front of my Executive colleagues in the most unfair and damning light". On 9th January 2006 the Claimant sent Dr Al Muhairi a list of others with whom the consultant had worked, stated the cancelled meeting had been rescheduled and asked whether he wished to go ahead with it. She received no reply and says the issue of executive pay had not been resolved by the time she went off sick in August 2006.

It is apparent from a debriefing note the Claimant made that this issue was one of a number discussed. This note is a plain record of what happened with no criticism of how she was treated. The report had in fact stated that the differential between the CEO's and other salaries was greater than would normally be expected being between 15-35% higher and that the Finance Manager, Matron and Executive Manager's salaries were at the bottom of or below market competitors.

Mrs Clarke-Rossi said that Dr Al Muhairi had shown her part of the report and made clear to her that he believed that the proposal for the Executive Manager's salary had been inflated in the report. She was surprised that he had showed her, did not think it was appropriate and would not have been happy if it had happened to her. She had not mentioned it to the Claimant as it had been said in confidence to her.

Whilst understandably upset by the manner of the request for her sickness records, the Claimant’s reaction appears to have been excessive. Similarly her reaction to the criticism of the report she had commissioned. No-one likes their efforts to be criticised, especially when it is felt, as clearly the Claimant did, that the criticism is unjustified. But such reactions are consistent, in my judgment with her mental state being fragile at the time. On the other hand it was clearly wrong for Dr Al Muhairi to have shown that part of the report to Mrs Clarke-Rossi. Clearly had the Claimant known this at the time she would have considered such conduct undermining.

The Claimant said she reflected over the Christmas break and decided things could not continue as they had. Her witness statement says she felt she was being

Whilst it is clear that the Claimant confided in her PA, Mrs Weekes, and also in Mr Anderson, I heard no evidence that there was the "general realisation" which the Claimant asserts. Indeed such was denied by Mrs Clarke-Rossi and Miss McKay and received only limited support from Mrs Weekes.

The Claimant says that in early 2006 she sat down with her PA to decide how matters might be improved. She was aware that it was Dr Al Muhairi’s style of management to summon executives to his office to discuss matters without giving them notice. Taking into account his style of management she decided :

(22) The 16th January signing incident (16th January 2006)

(23) The 16th January "offices" incident (16th January 2006)

(24) The part-time secretary (30th January 2006)

She says she left this meeting "shell shocked", returned to her office "drained" and thought of handing in her resignation. The only reason she did not was there was a rumour of imminent major investment into the hospital which would likely be linked with the appointment of a new CEO. When she discussed matters with Mr Anderson he urged her to hang on.

(25) The 3rd February meeting (3rd February 2006)

The Claimant sought the advice of an HR consultant who advised against drafting such a letter. But the Claimant asked Mrs Clarke-Rossi to draft the letter. The letter was drafted and sent to Dr Al Muhairi's office. It was supposed to be signed by him and sent to her but nothing more was heard about it. Both original and final drafts of this letter were in the papers put before me.

In her witness statement dated 13th December 2011 Mrs Clarke-Rossi said she did not recall her role in relation to these draft letters but said that although it would appear "rather unusual for Dr Al Musairi to ask the Claimant to respond to her own letter, who in turn asked her to assist with this response it is not outside my experience." She also accepted that it was highly likely that she drafted the letter and agreed that the letter did not find its way on to the Claimant's personal file. It is surprising that she cannot remember assisting the Claimant by preparing this letter.

It is, to say the least, surprising that any decent CEO would require a complainant to respond to her own complaint, and in exonerating terms. But apparently this was not a one-off experience for Mrs Clarke-Rossi. It is equally surprising that the Claimant agreed to do so and, via Mrs Clarke-Rossi, provided such a letter, despite being advised not to do so. One would not expect that of someone in her position. I conclude that at that stage for whatever reason she was not willing or able to exercise the independence one would have expected of someone in her position and of her experience. The most likely explanation for this is the Claimant’s mental state at the time.

(26) HR to report direct to Dr Al Muhairi (February 2006)

Mrs Clarke-Rossi did not deal with this in her witness statement. In evidence she said it did not happen, I think in the sense that the HR department did not in fact report to Dr Al Muhairi.

The Claimant makes no further mention of this. Dr Al Muhairi may well have intended that the HR department, or some of its members, should report to him but had the HR department reported directly to him I am sure I would have heard more about it. But in asking an executive's managers to report directly to him, without first clearing it with the executive concerned, Dr Al Muhairi was, in my judgment, undermining the executive's position and could be perceived as such by both the executive and the managers. Mr Anderson was not concerned about it.

(27) The 25th anniversary party (April 2006)

The Claimant was then told by Ms Rampton that Dr Al Muhairi had said they were to use the Royal Lancaster Hotel and do everything through her. This venue turned out to be considerably more expensive than the others on the shortlist, the Claimant pointed this out to Dr Al Muhairi, but received no response. She was then asked to see him and she says that he asked in an angry way “Who was in charge of the party committee”, knowing, she says, full well that she was and kept repeating the question in an increasing hostile tone. He then said that she was to go ahead using the Royal Lancaster Hotel and change everything from a sit down meal to a buffet.

The Claimant said that the team was dejected by this news and she felt undermined.

(28) The anonymous letter (March 2006)

The Claimant says that a few days later Mr Anderson came to see her. He had heard of the rumours and said there was general concern amongst the managers about Dr Al Muhairi’s relationship with some of the younger staff. When Mr Anderson said he was going to see Dr Al Muhairi and discuss the situation with him, the Claimant tried to persuade him not to stating she had already seen him in the light of the letter she had received and that Dr Al Muhairi would accuse her of deliberately spreading rumours. Mr Anderson went to see Dr Al Muhairi and that as soon as he had mentioned the rumours Dr Al Muhairi had said ”This is all Sandra King isn’t it? This is about the letter, isn’t it?” Mr Anderson denied knowing about any letter and said that he was raising the matter with Dr Al Muhairi in light of what staff were reporting to him. Mr Anderson confirmed that this happened.

This matter is not the subject of express complaint in the Particulars of Claim but the Claimant considered there were repercussions from it when Dr Al Muhairi wanted a supervisor removed, following complaints about her by those she supervised. The Claimant and others investigated the complaints and found no cause for taking any disciplinary proceedings against the supervisor. The Claimant was also sympathetic to the supervisor who had suffered considerable family misfortune and ill health. When the Claimant reported to Dr Al Muhairi she says he criticised her for not listening to the staff and said she was running the Hospital as a psychiatric unit. She says she found his comments morally wrong, offensive and inappropriate. He also said she was "soft", a term which she says he had used before. She says he clearly was suggesting that she was incompetent. He then asked another executive to get rid of the supervisor.

The connection, if any there be, between these two matters appears to be that it was the younger staff with whom Dr Al Muhairi was allegedly associating, who were complaining about the supervisor. It seems to me, however, that Dr Al Muhairi was intent on removing the supervisor, regardless of whether he considered the Claimant was responsible for the rumours. Further, in ordinary language one would regard use of the word “soft” as implying that someone is “too kind” rather than incompetent. From what I have heard of Dr Al Muhairi, if he had wanted to say the Claimant was incompetent he would have said so.

(29) Mr Gallagher’s case (May 2006)

The disciplinary hearing took place on 13th March 2006 where it was found that inter alia Mr Gallagher had not been frank about business activities of a company with which he had been associated. Dr Al Muhairi then wrote to him stating he was dismissed for gross misconduct. This decision was suspended pending appeal. The appeal was heard by an independent body which upheld the disciplinary findings. There were then negotiations as a result of which Mr Gallagher left the Defendants' employment. Dr Al Muhairi gave no evidence in either the grievance or disciplinary hearings. Professor Britton sat on the first panel, which was improper,given that he had been making accusations against Mr Gallagher.

Meanwhile the Claimant had been obtaining advice concerning the case from lawyers. By May 2006 meetings with solicitors and counsel had taken place and decisions were required. The Claimant prepared a summary of the advice received for discussion with Dr Al Muhairi. She was then told that Dr Al Muhairi wanted to discuss the matter with the lawyer instructed and that there was no need for her to attend the meeting. She telephoned the lawyer to explain the position, not knowing whether or not Dr Al Muhairi had taken over. She says it was acutely embarrassing for her to have to do so and she felt humiliated.

She said the lawyer said he had met with Dr Al Muhairi and had been told that she was to have no further involvement in the matter. She says the lawyer was critical of Dr Al Muhairi's attitude towards him and his approach. The Claimant says she recalled telling the lawyer “.... I will be next”. Dr Al Muhairi's office then asked the Claimant's PA to send various papers to him and to copy all the case files immediately for them to be sent over to the Defendants' corporate lawyers.

The Claimant accepted that it was Dr Al Muhairi's prerogative as CEO to change lawyers but complains that he did so without even taking the trouble to discuss matters with her. She instances this as another example of the contempt in which he seemed to hold her. But in fact she was later brought back into the case. I do not know how soon after the lawyer met Dr Al Muhairi that the Claimant discussed the matter with the lawyer but if there had been sufficient time for her to be told I would agree that it was unacceptable for her to discover she had been removed from the case from a third party. But such conduct by Dr Al Muhairi, although unacceptable, falls far short of harassment.

(30) The new lawyers (June 2006)

(31) Unauthorised leave (August 2006);

The Claimant said that on Monday 7^th August her temporary secretary called her to say that Dr Al Muhairi had been asking where the Claimant was on the previous Friday. She had reminded him that the Claimant was on annual leave. Very shortly afterwards she had received a call from Dr Al Muhairi’s secretary telling her that the Claimant was in trouble as she had taken unauthorised leave. The secretary then took a copy of the leave request to Dr Al Muhairi’s office. The Claimant says when she took this call she was shaking, feeling sick and threatened and felt her integrity was being challenged again.

On Tuesday, 8^th August, Professor Britton following a meeting told the Claimant that Dr Al Muhairi wanted to see her. She said this caused her to become very anxious. She says she asked Professor Britton what Dr Al Muhairi was going to blame her for on this occasion. Dr Al Muhairi’s first asked about the case then asked Professor Britton to wait outside. Before him he had a memo. addressed to her about annual leave and other papers. She said it was as if it had all been planned between them. He then began to question her about her annual leave stating she had exceeded her annual quota and had taken unauthorised leave. She says she felt so threatened and "he had this very pleased with himself look on his face as if to say I’ve got you now". She says she was shaken to the core.

She says the accusation was completely unfounded as she had leave due, he had mistakenly confused time off on sick leave with holiday leave, and she had followed normal procedure in requesting leave. She says she could not stand any more of this treatment, found herself beginning to shake and thought she was about to break down. She said she remembers saying words to the effect of “Not again. What is it this time?” and “I simply cannot take any more of this”, handed him a copy of her holiday request slip, reminded him of her forthcoming leave and left his office in tears. She describes Professor Britton as "sitting guard" outside the office. She then discussed what had happened with Mr Anderson.

(32) The final meeting (22nd August 2006)

It is quite clear that the Claimant left the meeting and was in a very distressed state outside. Mrs Middleton in her witness statement said that after the meeting “...she was described to me as being in a terrible state, she was pacing the office. Annie (the Claimant’s secretary) described her to me as being demented.” This was not a description of the Claimant she would have recognised. Mr Anderson's witness statement says he had been becoming alarmed and thought "I must intervene and bring this humiliation to an end" and that the Claimant left the room in tears. Miss McKay was surprised when the Claimant had walked out. She could not remember the Claimant crying at the meeting but accepted she was upset and understood she had been in tears afterwards. She said that at the weekly meetings they were used to challenges by Dr Al Muhairi and executive colleagues, it was part of the job and "we were well paid to deal with these challenges". In cross-examination she accepted that this had been the only time the Claimant had been specifically targeted "if you wanted to describe it in this way". Until then if the Claimant had been challenged she had been able to stand her ground and respond appropriately. She accepted that the recorded minutes of the 22^nd August 2006 meeting were not a full account of what had happened. They record neither the Claimant’s late arrival nor her early departure. Mrs Clarke–Rossi had not been at work due to surgery, but about 2 weeks later the Claimant had visited her at her home. She got the impression from the Claimant that the Claimant was angry that she had been badly treated and humiliated by Dr Al Muhairi.

On its face the Claimant’s account of what took place does not seem out of the ordinary. At the time HR was short staffed. Dr Al Muhairi had evidently woken up to this and was asking about it. He had previously taken an interest in the HR department. The reference to Miss McKay never taking her annual leave was to contrast her to the HR department and perhaps to the Claimant, who had been on leave. If it was a reference to the Claimant then it was easily countered by her stating that he had been informed of her leave. She states that Dr Al Muhairi attempted to show her up by needlessly asking questions about HR but his reference to her being busy with the Gallagher case excuses rather than criticises her.

I conclude that she was in a fragile mental state at the time. Her descriptions in her witness statement that “I was not really in any condition to listen”, “I felt at breaking point”, “the straw that broke the camel’s back” suggest this. Mr Garrard’s concern about the state she was in and his insistence that she call her GP for an immediate appointment suggest this. The medical evidence makes clear the onset of her depression was gradual. Mr Anderson’s concern for her, perhaps borne of his more intimate knowledge of how she felt she was getting on with Dr Al Muhairi, differs from that of Miss McKay. Her statements that “The whole thing was ridiculous and everyone else realised that to be the position.....” and “Others tried to intervene to get him to move the conversation on as it was going round in circles.” are not borne out by the other evidence. As in other instances her perception and interpretation of events differs from that of others.

The above is a selection of what appear to me to have been the most significant of the incidents relied on in the Particulars of Claim. The Claimant's witness statement records a number of incidents as examples of Dr Al Muhairi interfering in the operation of departments, checking on what employees were doing, taking employees to do his bidding without regard to the demands of the departments where they were employed, criticisms of staff etc, much of which is consistent with the allegations the Claimant makes against him.

The 22^nd August was a turning point for the Claimant. She has never returned to the hospital as far as I am aware.

As mentioned above the Claimant wrote a memorandum to Dr Al Muhairi, drafted with the assistance of her HR consultant, Mr Garrard. In it she first dealt with the HR issues which had been raised then concluded :

On 24th August Dr Al Muhairi replied stating that he had been concerned about the current situation in the HR department. He was sorry to learn that she had become distressed during the meeting and stated : "It was, of course, not my intention to cause you anxiety". He asked her to contact his PA or assistant to arrange a mutually convenient time for them to meet and discuss matters. On 11th September the Claimant wrote stating she would be off work for a further four weeks. He responded stating he was concerned about how she was, trusted she was much improved and asked whether it would be alright for him to call her. The Claimant said this letter caused her "huge distress".

Her GP's records show that over the years the Claimant has regularly consulted her GP and received treatment. She underwent surgery for varicose veins in 2004 and 2005 and regularly received monthly venous injections. In September 2004 she consulted a gynaecologist for hormonal symptoms. The gynaecologist, writing to the Claimant's GP, recorded that the Claimant had been troubled with hormonal symptoms for some time and that her symptom questionnaire (which Professor Murphy refers to) "suggested debilitating symptoms which she is managing alongside her high pressure job" at the hospital. In addition stress incontinence was diagnosed. These symptoms appear to have continued, varying in degree, through 2005 and 2006. On 29th July 2006 the gynaecologist wrote stating "Obviously the pituitary hormones are still raised which indicates an ongoing low oestrogen level, and I note that your iron levels and iron saturation are at the bottom end of the normal range".

The Claimant’s GP referred her to Dr Islam at the Priory Hospital. In his letter of referral dated 9th October 2006 he said :

In his first letter to her GP, dated 2nd November 2006 Dr Islam said :

“...she is very much at a crossroads with regard to her career and whether she will get over this trauma, to return to her existing job. I have asked her to leave all these questions aside for the time being...”.

Counselling was planned.

In May 2007, when the Claimant was receiving therapy, Dr Islam wrote to UNUM, the Defendants’ PHI insurers recording the history he had been given by the Claimant of “a series of incidents by her then CEO, which amounted to harassment and bullying” and stating “She has catalogued a number of incidents where she felt she had been undermined by her boss, she felt extremely unsupported at work, felt that she was being put down before other employees” and referring to the incident of 22^nd August. He also stated :

“Over several months, Mrs King had developed symptoms of a moderate to severe depressive episode. When she came to see me she had been complaining of a major sleep disturbance, tearfulness, inability to cope both at work and at home, marked symptoms of anxiety and tension, had lost all confidence and felt extremely undervalued at work......Other presenting features were excessive tiredness, lack of motivation, extreme guilt and a sense of worthlessness.”

He added that she was happily married with two teenage boys and there were no complicating factors with regard to her personal life. He was evidently misinformed or had misinformed himself on this last point.

Therapy had commenced in about November 2006. At an early stage she wrote an account of her grievance against Dr Al Muhairi, which is in terms similar to her later witness statement. She was described by her therapist as “obsessively analysing all the details of her grievance” and “preoccupied with work related issues”. A December 2006 clinical note records that she “Continues to need to understand why CE who was supportive and with whom she had a special working relationship turned to criticism and degradation (Footnote: ¹)”. In attempting to understand these problems, the treating therapists identified that her family background was significant, in particular a family expectation of high achievement for her, and what was described as a huge rupture to her self confidence when praise (from Dr Al Muhairi) was replaced by criticism and bullying. By June 2007 the therapist noted that the Claimant had finally come to recognise that the degree of trauma and her inability to move forward could be linked to her childhood experience “ie that her Chief Executive’s criticisms re-awakened feelings of having disappointed her parents in spite of achieving to a very high standard”. The note also records : “It also seems that Sandra was reaching a point of “burn out” under pressure long hours big responsibilities.” An October 2007 note records "She continues to suffer from anxiety provoked by any connection – no matter how remote – with the Cromwell Hospital”.

Later Dr Islam referred her to a colleague, Dr Collins for EMDR (Eye Movement Desensitisation and Reprocessing Therapy) treatment. Dr Collins in a report dated 7th October 2009 addressed to Dr Islam, agreed that the Claimant did not have PTSD but also agreed that EMDR was appropriate. By October 2010 the Claimant was showing signs of response to a treatment strategy of desensitisation and cognitive behaviour therapy.

I was told the Claimant has been married for over 20 years and that she has known her husband for some 30 years. In her witness statement the Claimant said :

“For the most part my relationship and marriage to Graham has been a happy one. We did go through a rough few years after Graham had been made redundant. He decided to study for his law degree which became all encompassing. During this time we drifted apart – me to work and Graham to his studies. We bickered about silly things such as money and how to decorate the house. We carried on as a family however due to our deep love for our boys. It was at times very painful for both of us but we never separated. Thankfully we came through this and we became closer and our relationship stronger than ever. “

The Claimant's husband was made redundant in about 1998. Her witness statement suggests that difficulties in the marriage had been present following his redundancy and when Mr King had been studying for a law degree, which I assume would have been in the years immediately following 1998. Other evidence paints a different picture. Her work emails included the following :

The Claimant said that "flirty friend" was a nickname that Aldyth MacKay had given Dr Al Muhairi after suggesting that Dr Al Muhairi had been flirting with her and that she should be careful. She described the last email as presenting “a very harsh view of my marriage.” But it was her description.

She failed to mention marriage difficulties to Dr Hopley. He blamed himself for not asking about the marriage. When Dr Murphy asked her about her marital history she gave an account similar to that in her witness statement stating she had not been as supportive as she could have been, describing what happened as a "blip". He interpreted this to mean that there had been a period of slight lack of support.

Although Dr Islam in his first letter to the Claimant's GP said "Sandra is happily married to Graham" he had made a clinical note stating "Marriage affected by Sandra's long working hours and job pressures" and referring to her husband's redundancy. Her therapy notes contain references to difficulties in the marriage. In particular a note dated 2^nd December 2007 records that there had been difficulties for many years, that she had considered leaving but stayed because of the children and that she now accepted that she stayed at work for longer hours and that she was more vulnerable to her CEO’s friendship because of these difficulties. In this note the marriage was described as cold and unrewarding. This discussion with her therapist led to a discussion with her husband which, happily, appears to have brought them together again.

One can well understand why the Claimant would not wish to disclose or would seek to play down marriage difficulties when first asked about them but it is clear from the therapy notes and the emails quoted that in 2005 – 2006 the Claimant’s marriage was undergoing difficulties and had been for some considerable time.

The Claimant relies on Dr Hopley, the Defendants on Professor Murphy. Each examined the Claimant in March 2011. Dr Hopley reported on 18th October 2011, Professor Murphy on 11th October 2011. Each was supplied with further medical records between the dates of their respective examinations and reports. Their joint report dated 5th January 2012 followed a telephone conference on 7th December 2011 and subsequent exchange of e-mails.

In his report Dr Hopley made no mention of marital problems. He recorded that the Claimant said she had been harassed and bullied over a 15 month period between 2005 and her departure on sick leave and referred to the meeting of 22^nd August. He recorded Dr Islam’s diagnosis and the later additional diagnosis of PTSD, the Claimant’s initial reluctance to take anti-depressant medication, his opinion that the experience of dealing with her grievance at the hospital and UNUM’s rejection of her claim had acted as perpetuating factors for her mental health problems.

He recorded the Claimant as saying :

“The ideal outcome would be an apology. Why can’t they be human ? I just want respect for what I did at the hospital. The same respect I showed people has not been showed to me. They have been so disrespectful to me. They actually did destroy me....”

His opinion was that the Claimant had developed a major depressive disorder and PTSD in 2005 and continued to suffer depression, the course of which had fluctuated, suggesting a slow improvement in response to treatment. At the time of his assessment (March 2011) he found no sign of clinical depression and said that any ongoing mood symptoms arose in response to intrusive memories of the reported trauma and/or re-exposure to the trauma through correspondence/litigation and were best regarded as adjustment disorder symptoms. In evidence he made clear that he did not consider the Claimant at that time was suffering either from clinical depression or an adjustment order, as opposed to demonstrating symptoms of the latter.

He considered her symptoms were at a severe level until EMDR had commenced in 2009 since when they had reduced to a mild/moderate level with fluctuating intensity.

He concluded that the Claimant’s depression and PTSD arose in response to her reported harassment and bullying and that there was no evidence of pre-morbid mental disorder, no genetic predisposition, no evidence of personality order and no suggestion of deliberate falsification or exaggeration. He considered that her mental problems were and had been perpetuated by the ongoing litigation process. He anticipated that such would continue, despite treatment, whilst the litigation continued. His experience was that bringing the litigation to a close was a major factor in the resolution of ongoing psychological symptoms. He thought it highly likely that she would be able to return to work in a different hospital or setting after the litigation was concluded.

Professor Murphy's report starts by stating this is a very complex case. He took a history from the Claimant which included her assertion of harassment and bullying and that her problems at the Cromwell predominantly related to her relationship with Dr Al Muhairi. She described four main areas of concern :

personal interactions with him – he would scream and shout ;

he was undermining ;

inappropriate touching ;

lack of trust.

She gave examples of screaming and shouting as shouting down the telephone, which she evidently mentioned at the interview, during which she broke down crying. Examples of undermining were “going behind her back, trying to poach her PA, taking jobs away without asking, delaying signing off on her decisions, telling her off for trivial things such as her PA “pp ing” letters for her and “taking any opportunity he could to make me look small”. Professor Murphy said this behaviour was difficult to quantify in frequency but was an ongoing concern to her. Inappropriate touching was once putting his hand on her thighs, but not in a sexual way, and grabbing her hand, but not in a sexual way – taking her by her hand and dragging her away, it was occasional. An example of lack of trust was his accusing her of taking unauthorised leave and being a bully – her perception was an ongoing mistrust by him of her. When she wrote to him she said the threats were direct and veiled and she mentioned the staff party episode.

She told him she had complained to Mr Anderson and Dr Al Muhairi but did not complain to the Chairman of the Board because he was a “puppet” and would not have done anything.

She said her marriage was “OK” but there had been a “blip” which he would see referred to in the court documents. When he asked about it she explained that her husband had lost his job in the late 1990’s, became very upset and she had not been terribly sympathetic about this, that during this time they had drifted apart somewhat, that she did not feel she had been as supportive as she could have but their marriage remained good. In evidence he said the picture he had obtained from this description was that the problem had been very time limited and nothing to be concerned about, whereas the picture he had obtained from reading the emails and the therapy notes was that there had been a very significant marital problem. No doubt these views have to an extent informed his opinion, although as appears from their joint statement the expert psychiatrists have not reached clear cut views on causation.

Professor Murphy selected a number of entries from the documents he had been sent, including : a female symptom questionnaire dated 13^th July 2004 where the Claimant had ticked under the Moderate Column heading “early morning tiredness”, “mood swings”, “aggressive/short fuse”, “depressed/low feeling”, “paranoid/negative feelings”, and “loss of confidence” ; a letter from her consultant gynaecologist dated 10^th September 2004 observing that the questionnaire suggested "debilitating problems which she is managing alongside her high pressure job"; and emails relating to marital problems, which I have recorded above, as well as medical entries dating from her GP's note on her attendance on 23^rd August 2006 recording "problems at work being bullied by boss male/female and cultural issues involved" and references to observations by Dr Islam and Dr Collins in reports /letters they wrote.

On examination he recorded that she was "clearly very anxious, tearful, and concerned" but otherwise appeared "very pleasant and appropriate", orientated, speech normal in rhythm and content. She described being low in mood with symptoms of depression most days and significant and upsetting symptoms of anxiety including feeling "wound up" and that she cannot deal with any pressure or stress without bursting into tears. She was frequently tearful. She told Professor Murphy her symptoms had started approximately 18 months before she visited her GP on 23^rd August 2006.

In examination in chief he added two matters to his report/joint statement. First he said that he had felt the absence of an appraisal system was significant but now he knew there had been such a system. Second, that he had been taken by how well the Claimant had presented herself during cross-examination. Although she had been upset when reminded of events she had been more robust than he had anticipated. He now thought she would be able to return to full-time work by the end of one year but would require significant help to do so, both psychological help and help to assert herself. He saw her confidence improving.

He accepted that he had been alerted by the Defence to the Defendants’ stance that marital difficulties and her son's autism had played a causative role but added that he would be no clinician if he had not considered marital status as a possible cause. He accepted that the Claimant's medical records showed her to be someone willing to seek medical advice but in response to the suggestion that there was no earlier history of mental health problems pointed out that in 2004 the Claimant was recorded as having a low mood, associated with the menopause, and as being "low" earlier in the Spring of 2005 but added that there was no evidence of clinical depression at this time. He could not state accurately when her symptoms began to increase in severity, as would have been the case, but suggested it may have been half way between then and August 2006, ie about 9 months before August 2006. Symptoms such as feeling exhausted or low self esteem, later recognised as symptoms of depression by a psychiatrist, may not be recognised as such at the time by the patient. It did not follow that because a patient had symptoms of depression that she required treatment.

In re-examination he said that parents of an autistic child had a 30% chance of suffering from depression when the child was young and this increased to 50% when the child was an adolescent. He listed the physical medical problems the Claimant had undergone which included debilitating symptoms from the menopause, long lasting treatment for varicose veins, gynaecological problems in 2005 accompanied by embarrassing symptoms with their effect on self esteem, and low iron affecting energy levels. Individually these would not cause a breakdown but together they would be “incredibly distressing”. In addition she faced the problem of dealing with an autistic child. He said it was hard to argue that none of these was relevant. Problems at work would add another factor but he also accepted my question/suggestion that someone with such problems might well seek refuge in work. Work itself might be therapeutic.

When asked whether there was anything in the therapy notes which indicated potential for breakdown he drew attention to two entries. The first dated 12^th June 2007 which records that the Claimant's inability to move forward might be linked to her childhood experience of feeling that she had disappointed her parents despite achieving to a very high standard, and more particularly the statement "It also seems that Sandra was reaching a point of "burn out" under pressure of long hours and big responsibilities". The second note also dated 12^th June 2007 refers to secondary gain ie positive benefits from illness, records "Length of her "illness" due dual factors "Burnt out" - was in "overdrive" for years + bullying".

I am a little surprised that Dr Hopley did not consider the status of the Claimant’s marriage. He recorded that she denied any relationship problems “prior to her marriage” but apparently did not consider the matter further, something for which he apologised. It is all the more surprising that he failed to do so since in the Priory Hospital therapy records, which were supplied to him, marital problems, as recorded above, were mentioned, indeed seen as playing a part in the Claimant’s devotion to her work. Nor did he mention the fact that her son was autistic and the many physical health problems she had been undergoing. In the result he, all too easily in my judgment reached the view that the Claimant’s depression and PTSD arose in response to her reported harassment and bullying. The joint statement he has agreed reveals not only that he has abandoned his earlier diagnosis of PTSD but that he now considers that causation is complex and that there are a number of factors to be considered.

Professor Murphy’s approach was more thorough than that of Dr Hopley and where they differ, I prefer the evidence of Professor Murphy.

In their joint report Dr Hopley and Professor Murphy agreed the following :

The relevant parts of the 1997 Act provide as follows:

“1.

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

a)

which amounts to harassment of another, and

b)

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

(2)

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

(3)

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

(c)

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

2.

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

(2)

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

3.

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

(2)

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

...............................

7.

...............

(2)

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

(3)

A “course of conduct” must involve

(a)

In the case of conduct in relation to a single person ....conduct on at least two occasions.

...........

(4)

“Conduct” includes speech.”

In Thomas v NewsGroup Newspapers Ltd [2002] EMLR 78 at para 30 Lord Phillips MR observed that the 1997 Act

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

This passage was cited by May LJ in Majrowski v. Guy’s and St. Thomas’ NHS Trust [2005] QB 848 and at paragraph 82 of his judgment May LJ said:

“Thus, in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to the conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress.”

In Majrowski the Court of Appeal also held that an employer could be vicariously liable under section 3 of the 1997 Act for harassment by an employee in breach of section 1 of the Act. This ruling was affirmed by the House of Lords. The ruling on what constituted harassment was not appealed but Lord Nicholls observed at paragraph 30 :

“Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so. ....where the ....quality of the conduct said to constitute harassment is being examined. Courts will have in mind that irritations, annoyances, even a matter of upset, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would constitute criminal liability under section 2”.

At paragraph 66 Baroness Hale said:

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

Lord Nicholls’ words were cited by Maurice Kay LJ in Veakins v Kier Islington Ltd [2009] EWCA CIV 1288. Giving the judgment of the court in Veakins, Maurice Kay LJ said (at paragraph 11):

“.......it seems to me that since Majrowski, courts have been enjoined to consider whether the conduct complained of is “oppressive and unacceptable” as opposed to merely unattractive, unreasonable or regrettable. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which “would sustain criminal liability.”

In Jones v Ruth [2011] EWCA Civ 804 Arden LJ at para 24 stated :

Counsel are agreed that to establish harassment under the Act there must be conduct

The Defendants' Equal Opportunities Policy, contained in their Employees Handbook, defined harassment at Section 31.6 as :

The substance of this definition “objectionable and offensive” conduct equates in my judgment with what Maurice Kay LJ described in Veakins as “oppressive and unacceptable”. The Policy goes on to state that managers have the responsibility for ensuring the Policy's terms are adhered to in their own departments, that employees at all levels have responsibilities in this field, that the hospital is opposed to harassment in any form and gives examples of harassing behaviour as including unnecessary touching, innuendo, intimidation, bullying, marginalisation of colleagues and offensive comments.

Forseeability of the risk of harm is not a requirement in claims brought under the 1997 Act : see Jones v Ruth [2011] EWCA Civ 80. But as Gage LJ pointed out in Conn v City of Sunderland [2007] EWCA Civ 1492 at para 12, whether or not conduct amounts to harassment may well depend on the context in which the conduct occurs. For the Defendants Mr Williams suggests that the seniority of the individuals concerned and the Claimant’s role and responsibilities as Executive Manager are relevant matters when considering the allegations the Claimant makes.

The employer’s duty at common law is to take reasonable care for the employee’s health and safety and not unreasonably to expose the employee to risk of injury. In cases of work related stress the judgment of the Court of Appeal in Hatton v. Sutherland [2002] 2 AER 1, given by Hale LJ, sets out helpful guidance on matters to be considered and the approach to be adopted in such cases. In Barber v Somerset [2004] ICR 457, one of the cases which had been heard with Sutherland in the Court of Appeal, the House of Lords approved the guidance given in Hatton but Lord Walker stressed that every case will depend on its own facts. In Hatton Hale LJ set out the following :

In Daw v Intel Corporation [2007] ICR 1318 Pill LJ, whilst accepting that there will be cases where an employee may be expected to take refuge in counselling, also said that the provision of such services would not operate as a panacea whereby employers may discharge their duty of care, a view echoed in Best v Staffordshire University, one of 5 appeals heard with Hartmann v. South Essex Mental Health NHS Trust [2005] EWCA Civ 06, where it was held that the availability of counselling was not fatal to the claimant's case, there being no or no sufficient evidence that it would have helped, but the court concluded it was a factor for which credit should have been given when considering whether the employer was in breach of duty. In Melville v The Home Office, another of the appeals, it was held that whether or not an employee has shown indications of impending harm to health is a very relevant question when considering forseeability of psychiatric injury where the risk of such would not normally be present.

In Dickins v O2 Plc [2008] EWCA Civ 1144 Smith LJ queried whether apportionment was appropriate in the circumstances set out in subparagraph (15) of Hale LJ’s judgment. At para 46 she said :

“I respectfully wish (obiter) to express my doubts as to the correctness of Hale LJ's approach to apportionment. My provisional view (given without the benefit of argument) is that, in a case which has had to be decided on the basis that the tort has made a material contribution but it is not scientifically possible to say how much that contribution is (apart from the assessment that it was more than de minimis ) and where the injury to which that has lead is indivisible, it will be inappropriate simply to apportion the damages across the board. It may well be appropriate to bear in mind that the claimant was psychiatrically vulnerable and might have suffered a breakdown at some time in the future even without the tort. There may then be a reduction in some heads of damage for future risks of non-tortious loss. But my provisional view is that there should not be any rule that the judge should apportion the damages across the board merely because one non-tortious cause has been in play.

Support for Smith LJ’s view is to be found in the judgment of Waller LJ in Bailey v Ministry of Defence [2008] EWCA Civ 883 where he said at para 46 :

“I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.”

In Dickins Sedley LJ, agreeing with Smith LJ, said that first instance courts should, at least for the present, take their cue from the decision in Bailey.

In the second subparagraph in Hatton Hale LJ identified the threshold question as follows :

“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).”

In doing so she was echoing views expressed by Brown LJ in Garrett v. Camden [2001] EWCA Civ 395 where at para 62 he said:

“It is not easy to make good the cause of action embarked upon by Mr Garrett in this case, a claim in negligence for damages for injury, loss and damage sustained consequent on work-related stress. Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simple overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability.”

Later, in Bonser v. UK Coal Mining [2003] EWCA Civ 296 at para 30 he said :

“It is not enough for employers to have foreseen stress; it must be foreseen that illness would follow. Overwork of itself is likely to lead to stress. It is altogether less likely to lead to the breakdown of the stressed employee's health. For that to be foreseen, the claimant will generally need to establish, not only that the employers knew that he or she was being overworked, but, in addition, one or other of the following circumstances: either (i) that the employers knew that the individual employee was, for some reason, particularly vulnerable to stress induced illness; or (ii) that the claimant was manifesting clear signs of some impending harm to health before eventually illness followed.”

Ward LJ put it succinctly when he said at para 25 that the claimant in that case

“…did not manifest by her conduct, or by complaint, anything which in my judgment sufficiently put her employer on notice that she was vulnerable to imminent risk of injury to her health.”

The application of the “threshold question” to cases of workplace bullying and harassment was considered by Gray J in Barlow v. Borough of Broxbourne [2003] EWHC 50, where the claimant was alleging employers were vicariously liable for victimisation and bullying causing psychological injury by an employee and for negligence causing injury resulting from stress. At para 16 of his judgment Gray J considered the following questions arose :

In Green v. DB Group Services [2006] EWHC 1899 (QB) Owen J adopted Gray J's formulation identifying the harm in question in Green as psychiatric injury. In Green where the bullying was perpetrated by the Claimant’s work colleagues, Owen J identified a relevant question as being whether the Claimant’s managers and/or members of the HR department knew or ought reasonably to have known that the Claimant was being subjected to the conduct complained of.

In my judgment the same general principles where psychiatric illness results from work induced stress or harassment/bullying at work. To establish liability a claimant has to prove that illness, not stress, was foreseen or reasonably foreseeable and/or that the employer knew or ought to have known of the claimant’s vulnerability to stress induced illness and that the claimant was manifesting clear signs of impending harm to health before illness followed.

The present case is complicated by the fact that the Claimant was head of the HR department. Who on behalf of the Defendants should one look to to have had the relevant knowledge ie that the Claimant was being subjected to the conduct complained of, that as a result the Claimant might suffer illness, and/or that the Claimant might suffer illness as a result of her vulnerability to stress induced illness and that she was manifesting clear signs of impending harm to health ?

The obvious persons to identify are those who were senior to her and who actually knew or reasonably ought to have known. In this category, on the evidence before me, I would place Dr Al Muhairi and Professor Britton. Given that the Claimant worked in a hospital there may also have been others, for example her fellow executives, who might fairly be identified as those who had sufficient knowledge or experience to make such judgments.

The Regulations provide, so far as is material:

“Risk assessment

In Mullen v Accenture Services Limited [2010] EWHC 2336 (QB), Judge Harvey Clarke, sitting as a Deputy High Court Judge, ruled that the same test of forseeability applies to a claim for breach of regulation 3 of the 1999 Regulations (general requirement to assess risks) as applies to a claim in negligence. The crucial question was whether there was sufficient evidence to make the psychiatric illness suffered by the employee reasonably foreseeable to the employer.

The Claimant and Mr Anderson were close associates at work. Dr Al Muhairi in his earlier years at the hospital relied on each for advice. After, and probably before Dr Al Muhairi became Deputy CE0, I am satisfied that each realised that Dr Hameed’s tenure as CEO was coming to an end and that Dr Al Muhairi was likely to replace him. Dr Al Muhairi told each he trusted them, even told each that he or she was the only person he could trust, contacted them out of hours and on holiday and made each feel he/she was an important part of his team. In such circumstances it is quite understandable that each should see his/her own career as depending on Dr Al Muhairi’s goodwill, seek to encourage that goodwill, and that both could have been perceived by others as having Dr Al Muhairi’s ear.

I was told that intrigue was common at Board level. The attempt to oust Mr Anderson, similar, I was told to an earlier attempt to oust another executive, suggests that intrigue at executive level was not unusual either. Not a very happy situation for any employee who is out of favour.

I accept the evidence of both the Claimant and Mr Anderson that Dr Al Muhairi’s attitude to them changed after he became Acting CEO. By then the battle with Dr Hameed was over, Dr Al Muhairi was in charge and could run the hospital in his style. I am also satisfied that, whether or not it was an express part of his remit, he set out to make the hospital profitable, to cut costs, and to replace what I perceive was a somewhat lax regime under Dr Hameed with one which was tightly controlled by and answerable to him.

I am satisfied that his style was to be very hands on. It was politely called micro-management by witnesses for the Defendants. Interfering and controlling are more apt descriptions of his approach. Making savings is rarely popular with staff whose programmes and expenditure have to be restricted. For this a tough approach is often necessary. That, together with a highly idiosyncratic and untrained management style inevitably placed demands on his executives. The question that arises in this case is whether or not the conduct alleged went beyond the reasonable and extended into the realms of harassment and bullying coupled with whether or not the Defendants failed to take reasonable care for the Claimant’s health and safety.

In support of her case the Claimant relies on Dr Al Muhairi’s treatment of her, his treatment of others and her complaints to him which ought to have put him on notice that his treatment of her was unacceptable, that he was harassing and bullying her and that her health was at risk.

Dr Al Muhairi has not given evidence. His account is not before the court. A few documents purport to record his view. In the ordinary course, where allegations are unanswered I would not reject those allegations save for very good reason. In the present case I consider there is good reason for rejecting a considerable number of the allegations relied on. I accept the Claimant as a truthful and reliable witness of fact but I am not prepared to accept her interpretation of what happened as reliable. She has come to believe that Dr Al Muhairi set out to destroy her career and as a result cannot see what happened in an objective balanced way. Mr Williams instanced the strong words she has used when describing him - tyrant, dictator, megalomaniac and psychopath and his being described as spiteful, cruel and adopting blackmail, as evidencing that lack of balance.

The Claimant, although emphasising what happened from March 2005 on, has not abandoned reliance on pre March 2005 conduct. I have not, in general, found consideration of pre-March 2005 events helpful in resolving the issues I have to decide.

It is evident that the Claimant prided herself on her achievements, not least in having reached an important position at the hospital, and that she looked for promotion to come. That may have seemed likely when she and Mr Anderson were in Dr Al Muhairi's good books but must have received a small setback when she was not appointed Secretary to the Board. She now attributes this failure to Dr Al Muhairi when contemporaneous documentation makes clear this was not the case. Similarly she may not have received encouragement from him when she approached him about the possibility of becoming CEO.

There are often significant gaps in time between the incidents she relies on as constituting harassment from 29th March 2005 on but sometimes the incidents come in clusters. The 29th March 2005 incident is followed (save for the Gallagher meeting incident in April which did not directly involve the Claimant) by a gap of about 4 months to

Between these incidents there must have been many occasions when the Claimant met Dr Al Muhairi when nothing untoward or perceived as untoward happened.

I have already dismissed many of the incidents relied on as individually constituting harassment, bullying or undermining when dealing with them above. But there were a number of occasions when Dr Al Muhairi was or must have been aware that his conduct had caused or was causing the Claimant at least some distress or concern. Do these incidents justify findings of harassment, bullying or undermining an/or that Dr Al Muhairi pursued a course of conduct amounting to harassment ?

First, the incident of 29^th March after which Mr Anderson told Dr Al Muhairi she had been distressed. His response was to take her out to dinner, although the evening from her point of view was ruined because he was on the telephone. Following this on 4^th April she told him she needed to discuss his conduct, they went for a coffee, the meeting ended amicably and, according to the Claimant “It worked for a little while”. It appears to me that the Claimant regarded the matter as closed. Apart from the April meeting when Dr Al Muhairi accused Mr Gallagher the next matter the Claimant complained of was the staff party in July.

It appears to me that Dr Al Muhairi behaved in a petulant and needlessly authoritative way in insisting that the Claimant and then all the executives should attend the staff party. I consider that this incident, objectively small in itself, comes close to harassment. It clearly caused the Claimant concern, as Dr Al Muhairi must have realised when she told him she had marital difficulties, upon which he relented. He did not insist she attended.

In August 2005 the Claimant found Dr Al Muhairi’s behaviour wanting on a number of occasions : poaching her PA, using her secretaries, the Bank holiday weekend problem, the HR incident, executive training. I do not regard these incidents either individually or cumulatively as constituting harassment. But the fact that the Claimant recalls so many matters as raising issues in August 2005 suggests that she was at rather a low ebb at this period.

The September 2005 flooding incident appears to have given rise to a running sore, which was not of the Claimant’s making, but which appears to have resulted in part from the administrative incompetence of those tasked with dealing with the problem, the recurrence of the Claimant’s asthma which she attributed to damp, Dr Al Muhairi’s approach to the problem, which appears at first to have been to disregard it, then blame others, including the Claimant, for the fact that the office had been unfit to occupy, lack of alternative temporary accommodation which the Claimant regarded as suitable, Dr Al Muhairi’s needless refusal to allow the Claimant’s furniture to be moved to the temporary office and then Dr Al Muhairi’s requirement that the Claimant draft his response to her letter of complaint.

The bulk of these relate to matters which objectively I would not regard as harassment unless I concluded that Dr Al Muhairi had decided in some way to make life awkward for the Claimant over the consequences of the flooding, which is not a conclusion I feel I can reach on the evidence. His refusal to allow the Claimant to move her furniture was petty but she disregarded it. More importantly, I regard his direction on 3^rd February 2006 that she write his letter refuting her complaints as at least harassment and almost certainly something fairly described as bullying or tantamount to bullying. I consider this quite appalling behaviour for a CEO. Mrs Clarke–Rossi’s evidence suggests this was not an isolated example of such behaviour. The Claimant does not suggest it happened to her on any other occasion.

On 19^th December Dr Al Muhairi had asked to see the Claimant’s sickness records which prompted the Claimant’s letter of 22^nd December which led to his complaint on 3^rd February 2006 that he had not been briefed on the office problem and his requirement that she answer her own letter. The Claimant states, and I accept, that on 3^rd February she broke down. Whether this occurred before or after she was asked to write the letter is not clear. Dr Al Muhairi must have realised at that stage that he had overstepped the mark. The fact that her letter of response was not filed in her personnel file suggests that this was something Dr Al Muhairi wanted forgotten. The fact that she asked Mrs Clarke-Rossi to prepare the letter, despite being advised not to draft it, suggests she again was not demonstrating the independence which one would have expected of someone in her position.

I do not regard the incidents complained of between February and August 2006 as of great significance, although I accept the Claimant regarded them as such.

In early August 2006 Dr Al Muhairi questioned the Claimant’s absence and at a meeting on 8^th August accused her of taking unauthorised leave. I accept the Claimant’s evidence that the accusation was unfounded, that her reaction was to feel something like “Not again, what is it this time”, although whether she uttered such words I am not sure, and that, having handed him a copy of her holiday request slip and reminded him of her forthcoming leave, she left the office in tears. Given that she had been in tears I would have expected Dr Al Muhairi to tread carefully in his dealings with the Claimant over the ensuing days. In fact the Claimant was then on holiday for a large part of the next 13 days before the meeting of 22^nd August.

Although the Claimant’s witness statement dwells at length on the 22^nd August meeting the time when he questioned her forcibly, as I accept he did, must have been relatively short. I accept entirely that she felt she could not cope and left the meeting in a distressed state. Whether she was in tears prior to or after leaving is not clear. I conclude that it would have been apparent to all that she left as a result of what Dr Al Muhairi had said and, perhaps, the manner in which he addressed her. But I do not conclude that Dr Al Muhairi was harassing or bullying the Claimant. He was treating her as he did all executives. When he was dissatisfied with something he said so openly and forcibly. Where he was at fault, in my judgment, was in not taking into account the Claimant’s reaction on 8^th August which should have led him to modify his language and tone.

Stress at work is a common experience and may be recognised by others. But stress carrying with it risk of psychiatric illness is difficult to recognise by laymen. Complaints and tears may alert but are equivocal. Tears may suggest that the person is under stress although not necessarily from what is happening at work, but also that they are emotional. It is not clear whether Mr Anderson told Dr Al Muhairi that the Claimant had been in tears when he explained that the Claimant had been distressed in March 2005 but there were two occasions when she was in tears in his presence : 8^th August 2006 and 22^nd August 2006 respectively. There is a gap of 16 months between March 2005 and 8th August 2006 and I would not have expected Dr Al Muhairi on 8^th August to have had at the forefront of his mind the 29^th March 2005 incident. Given the 8^th August incident one might have expected him not to be over critical of the Claimant on 22^nd August.

He would have known from her complaints to him over time that she was critical of his conduct but the fact that she made such complaints is consistent with her being able to stand up for herself, which appears to have been the view formed by others until the 22nd August meeting.

In addition to the Claimant's complaint made in early April 2005 following the 29th March 2005 incident the Claimant complained to Dr Al Muhairi about his treatment of her on the following occasions in her letter dated 22^nd December headed “Sickness Absence”, at their 3^rd February 2006 meeting and at their 8^th August meeting.

Her complaint in early April 2005 produced what I judge to have been a satisfactory outcome and became history. The "Sickness Absence" letter of 22nd December 2005 dealt specifically with the sickness records issue and made no general complaint about Dr Al Muhairi's conduct. At the 3rd February meeting the issue was why Dr Al Muhairi had not been briefed on the condition of the offices at which the Claimant says she said something like "Why are you doing this to me ?" The 8th August 2006 meeting concerned her absence and she says she remembers saying words to the effect of “Not again. What is it this time?” and “I simply cannot take any more of this” before , handing him a copy of her holiday request slip, reminding him of her leave and leaving.

At no stage did she complain direct to Dr Al Muhairi that he was harassing or bullying her or write to him in such terms. The terms of her complaints appear to relate to the issues being dealt with. Nor did she complain to others in such terms. She did not suggest harassment or bullying to Mr Anderson, rather that she could not get on with Dr Al Muhairi.

I have found no evidence that the Defendants, were alerted to any allegations that the Claimant was being harassed or bullied by Dr Al Muhairi. Nor have I heard evidence of anyone who considered Dr al Muhairi's conduct towards the Claimant was such that it could foreseeably cause stress leading to illness, or of anyone who knew or ought to have known of the Claimant’s vulnerability to stress induced illness or that the Claimant was manifesting clear signs of impending harm to health. I do not conclude that Dr Al Muhairi was alerted by the Claimant's demeanour to such matters. There is no suggestion that anyone else was so alerted.

The Claimant relies on Dr Al Muhairi’s treatment of Mr Karandwala, Miss McKay and Mr Gallagher in support of her allegations.

Dr Al Muhairi’s treatment of Mr Karandwala, Miss Mackay and Mr Gallagher tells me that Dr Al Muhairi could easily accuse without knowing the facts sufficiently, that he could be quite offensive when making accusations, that he did not stand on ceremony and once committed to a course of conduct had a tendency to pursue it. Both Mr Karandwala and Mr Gallagher ceased employment at the hospital but in different circumstances. Miss Mckay fought her corner and evidently was respected for it as relations between the two appear to have been satisfactory for the rest of Dr Al Muhairi’s time at the hospital. Dr Al Muhairi took away Miss McKay’s free accommodation at the hospital. She did not regard that as harassment.

But I cannot and do not conclude that because Dr Al Muhairi, once committed to removing Mr Karandawala and Mr Gallagher achieved his object, he had similar intentions towards the Claimant. But I am satisfied that that is what she began to fear and what she has now come to believe was the case to the extent that no-one will persuade her to the contrary.

In Mr Gallagher’s case it needs to be borne in mind that he was discovered doing something which Dr Al Muhairi regarded as dishonest. As events proved Dr Al Muhairi was right to criticise Mr Gallagher even if wrong in the way he set about it. The Claimant was not in the same position as Mr Gallagher. She was not being accused of dishonesty but was having her decisions and conduct questioned and being questioned in a manner that I find was typical of Dr Al Muhairi.

Looking at the individual incidents I have identified two as undermining, one as approaching harassment and a third as bullying or tantamount to bullying. On many occasions he behaved inconsiderately, even very inconsiderately, but I conclude that on only these four occasions did he overstep the mark. But looking at the incidents overall I do not conclude that it can fairly be said that Dr Al Muhairi was harassing, bullying or undermining the Claimant nor that his conduct can objectively be judged as such.

In my judgment these four occasions are insufficient to justify a finding of breach of Section 3 of the Protection from Harassment Act 1997.

In reaching these views I bear in mind that the Claimant was the Executive Manager, used to exercising authority over others and speaking her mind when called upon to do so. I am satisfied that as a manager she was perceived as robust. In present day industry CEOs often work under considerable pressure. Tough decisions have to be made and executives have to fight their corner. Executives are expected to withstand the demands and criticisms of their CEOs. The Claimant acknowledges this when she refers to the various incidents as individually not of sufficient gravity to have an impact on “an experienced manager such as myself.” Mr Anderson would have expected the Claimant to have protected herself. He said "she was a tough cookie. She would have coped with it".

I also bear in mind that the Claimant’s assertion that everyone was aware of the alleged manner in which Dr Al Muhairi was treating her is not one that I have heard from other witnesses, save for Mrs Weekes and Mr Anderson but Mrs Weekes’ source of information was the Claimant, and Mr Anderson’s primary source was the Claimant. and, I am afraid that I found that Mr Anderson was over sympathetic to the Claimant's case both in his written and oral evidence. It is significant that he never after March 2005 complained to Dr Al Muhairi of the way he was treating the Claimant. Having seen and heard Mr Anderson I am quite satisfied that if he had thought that Dr Al Muhairi was ill-treating the Claimant he would have challenged him about it. He did not do so at the 22^nd August meeting nor did he suggest he did so afterwards, which suggests that he did not consider Dr Al Muhairi was behaving any differently from the way he normally behaved, which executives were well used to.

The guidance in Hatton and the cases I have cited shows that in seeking to prove negligence causing stress or harassment at work a claimant has considerable hurdles to overcome. The present case is one where, in substance, it is alleged that harassment, bullying and undermining led to stress which resulted in injury to mental health. The Claimant does not rely on one or two incidents of harassment etc but on the cumulative effect of incidents.

The Hatton guidance makes clear that it is injury to health resulting from stress and not mere stress that has to be the foreseeable. The guidance also states that mental disorder is harder to foresee than physical injury ; that an employer is normally entitled to assume an employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability ; that the court must consider whether there are signs from an employee of impending harm to health and that the impending harm to health must be plain enough for any reasonable employer to realise he should do something about ; that an employer will not be in breach of duty in allowing a willing employee to continue in the job ; and that it is necessary to prove that the breach of duty, not merely occupational stress, has caused the harm.

I have heard no evidence that anyone foresaw injury to the Claimant’s health. The Claimant does not suggest she suspected the possibility or suggested that possibility to others. She did not until August 23^rd 2006 consult her GP about her problems. There is no record of her having mentioned problems at work as causing her stress to any of the doctors she saw over the three years preceding 23^rd August 2006. No-one at work was aware of any risk to her health, not even Mr Anderson.

The Claimant must have been aware that she was under stress. The questionnaire she completed for her gynaecologist in 2004 recorded under the "moderate" heading instances of what she almost certainly would have understood may have been indicative of stress, and if she did not do so at the time would have realised when she was concerned in implementing the Health Creation programme as part of which a stress questionnaire was circulated to the Defendants’ staff. She says she completed the stress questionnaire, circulated in 2006. I have not been shown her completed questionnaire, if it still exists, nor has the Claimant stated what her responses were. Ironically, the Claimant was as well placed any executive employee of the Defendants, and probably in a better position than most, to recognise what could be signs of stress putting health at risk. She was the head of HR, the department leading the Health Creations programme.

Her breakdown seems to have come as a surprise to all in authority. Mrs Weekes says she was not surprised as to the cause but I conclude that was because the Claimant had been complaining to her about Dr Al Muhairi, not as a result of any independent judgment.

The absence of reasonable grounds for foreseeing injury to health is fatal to the claim in negligence.

This has not been pressed by the Claimant’s counsel and in my judgment fails. There was, it appears, a risk assessment being implemented, if not actually in place but the Claimant was responsible for implementing this assessment. The procedures had been approved and were therefore known to her. No evidence was called to suggest no risk assessment had taken place or that it was in some way deficient. I cannot find on the evidence that there has been a breach.

But there is a much more compelling reason in my view for rejecting this claim. Given that the expert psychiatrists regard this as a complex case it is with some diffidence that I consider what are the correct conclusions to draw in this case on causation, but I am satisfied that the operating cause or causes of the Claimant’s breakdown and depression were not Dr Al Muhairi’s conduct but a condition which had developed due to other causes and which had reached breaking point by August 2006. I do not conclude that any one of the four instances I have identified in para 250 caused or materially contributed to the Claimant's condition.

The Claimant was subject to a number of stresses, apart from the stress she felt resulted from Dr Al Muhairi’s conduct. Here I find the therapy notes instructive. Despite what she now says I find that at the time her marriage was failing, or in her eyes had failed. In addition she was not in good health and, inevitably, would have had concerns about her son. I have not heard sufficient evidence to enable me to conclude that her son’s condition was a significant cause but the expert psychiatrists acknowledge that it would have played some part. I conclude that to a large extent she sought refuge in work, which at the same time was placing considerable demands on her.

She was ambitious to advance her career and succeed. That was possible under Dr Hameed. She felt encouraged by Dr Al Muhairi before he became Acting CEO. I conclude she derived comfort from the fact that she was so trusted by Dr Al Muhairi, whom she treated as a friend. She may well have welcomed his interest in her. Why otherwise adopt the description “flirty friend”.

All this trust and friendship was to change fundamentally when he became Acting CEO and treated her as he did others as there to do his will. Unlike Mr Anderson she did not distance herself from him but sought to recover lost ground but with lack of success. At the same time she kept the stress she was under to herself. She sought no help for it, not even informally. Nor did she bring any grievance because she says, and I accept her explanation, she feared she would lose her job. Her job, I conclude, was of enormous importance to her, not least as a refuge from her other problems. At the same time she felt she lacked support at home. Losing support at work left her isolated, on her own and unable to cope.

It may also be that, as the therapy notes briefly identify, she had reached a state of “burn out” at work but this has not been explored in any detail before me. Dr Islam's early notes record "Admits that with hindsight hasn't enjoyed her work for a long time" and "Marriage affected by long working hours and job pressures".

In the result the time came when she could cope no more.

She has found it hard to come to terms with the fact that she could not cope and has sought explanation for it, which she has found in Dr Al Muhairi's conduct, to such an extent that she can now see no good in him, describing him as "an awful, awful person". She continues to be preoccupied with her interpretation of what occurred at the hospital. She attributes her breakdown to one thing only, Dr Al Muhairi’s treatment of her. This was a consistent theme in her early therapy notes although later she began to be a little more objective about matters. No doubt this case and hearing have revived her early preoccupation. Certainly such was apparent when she gave evidence.

Professor Murphy suggested that her clinical depression would have commenced at about half way between end March 2005 and August 2006 which would mean about Christmas/ January 2006. It is not insignificant in my judgment that Christmas 2005 / early 2006 produced a flurry of complaints about Dr Al Muhairi’s conduct, which I attribute largely to the Claimant’s state of mind at that time. Thereafter her condition fluctuated but reached breaking point in August 2006.

The Hopley/Murphy joint statement agreed that the cause of the Claimant’s depressive disorder was complex but that :

“If the court finds that the Claimant experienced significant marital difficulties then this, combined with the stress of raising an autistic son with associated behavioural difficulties and her other medical factors, would have caused clinically significant symptoms of depression in the absence of any alleged mistreatment at work.”

In my judgment the Claimant was experiencing significant marital difficulties in 2005 / 2006.

They also agreed that if the Claimant was subject to bullying/harassment and did experience significant marital difficulties together with the child and medical factors, then they believe that the bullying/harassment significantly increased the severity of her depressive disorder. They differed on the contribution made by the harassment/bullying, Dr Hopley accepting that the claimed harassment would have caused her depressive disorder and turned her depression into a chronic condition, Professor Murphy concluding that severe and ongoing bullying would have caused the depressive disorder and turned her depression into a more chronic condition.

If I am wrong in concluding that liability is not proved then contributory negligence falls to be considered. The following contributory negligence is alleged.

The Claimant had some 15 years experience in HR. In her witness statement she gives many reasons why she did not go to Professor Britton and complain in early 2006 including the fact that the Board was out of bounds following Dr Al Muhairi's edict, the Board comprised Arab friends, associates and, she believed, relatives of Dr Al Muhairi, Professor Britton did what he was told and would have supported Dr Al Muhairi, and having worked with Professor Britton she did not feel she would get support from him, he did not believe in stress. Further she said that to do so would have made matters worse, would make her look inadequate, she was frightened to do so, it would have resulted in an "increased vendetta" towards her and she would be committing “career suicide”. She said she hoped instead to deal with matters with the support of Mr Anderson.

In evidence she accepted that she had dealt with many grievances and cases of absence due to sickness and stress due to pressure of work. She was taken to the Defendants' Employment Handbook which sets out their Equal Opportunities Policy, which applied to all and which contained a grievance procedure and to the Defendants' separate General Grievance Procedure. She accepted that if she had cause for complaint the decision whether to bring a grievance was hers but said that she considered the grievance procedure related to people other than herself and that if something concerned her she would talk to a colleague and then bounce back : that was what she was like. She acknowledged that Mr Gallagher had brought grievances against Dr Al Muhairi but said she had been reluctant to do so because she was terrified she would lose her job. She knew what the provisions were but she had no faith that she would be fairly treated. She said that when Miss McKay had written to Dr Al Muhairi complaining about his conduct he had been livid and wanted her removed, but she and his assistant, Dr Zahran convinced him that would not be right with the result that the matter was resolved. She said she was better at doing things for others than helping herself. Dr Al Muhairi was trying to find fault with her and pursuing a vendetta against her. That was how he operated. Had she brought a grievance she would have lost her job.

She accepted that in 2005 with the assistance of an outside consultant, Linda Holland, she had been engaged in setting up new occupational health arrangements, the proposals for which included the availability of counselling and stress management. The new provisions were approved by the Board in April 2006 to commence on 1st May 2006. In evidence the Claimant could not remember whether counselling and stress management were in fact introduced, nor has other evidence established this. A stress audit had been carried out. The Claimant thought she would have participated in this audit.

Incidents complained of such as taking her by the hand and leading her out of the room, suggestions of holidays etc could not fairly be described as outrageous in context but if regarded as unwelcome and objectionable could and should easily have been objected to. All the more so, so far touching her thighs is concerned. But her observations to Dr Murphy that neither the hand leading nor the thigh touching were done in a sexual way means she did not interpret them in that way. She accepts that she never did complain to him about these incidents. That suggests that she did not find them as objectionable as she now suggests they were.

I do not regard any failure to complain to Dr Al Muhairi about "over familiar" or inappropriate conduct or failing to protest when he touched her thighs or uttered innuendos or otherwise acted in an unwelcome manner towards her to have had any causative significance in this case. The other matters alleged are more in point.

As Head of the HR department the Claimant was or ought to have been better informed than most about the need to address problems of conduct, grievance procedures, stress, and the need to seek medical advice. Her view was that grievance procedures and advice on stress were for others, not herself. That view is understandable but not correct. The Grievance Procedure provided specifically that any grievance about the CEO should be addressed to the Chairman of the Board. The Claimant knew that but for the reasons she gave considered it would not serve any useful function. But, as she knew from dealing with the Gallagher grievance, there were procedures to be followed and ultimately, an independent body would decide. She therefore had some protection. But she considered that bringing such a grievance would mean she would lose her job.

She made, I am satisfied, a conscious decision not to complain about Dr Al Muhairi’s conduct to her other superiors and not to bring a grievance. Had she brought a grievance based on what she has alleged in this action, there is a prospect it would have been dismissed, alternatively aspects of Dr Al Muhairi’s conduct may have been criticised and to that extent the grievance upheld. But the question is whether or not her failure to do so has injured her health ?

Similarly her failure to seek medical advice. She could easily have consulted her GP without the Defendants knowing and in my judgment ought to have done so. Even after the 22nd August meeting, when she clearly was distressed, she had to be advised to see her GP. But again the question arises whether or not her failure to do so has injured her health ?

On 3^rd February the Claimant wrote her letter headed “Sickness Records” to Dr Al Muhairi. I conclude in the light of the medical evidence that she was feeling stressed at this time and ought to have recognised that she was reaching or had reached a stage where she faced impending risk to her health and as a result ought to have consulted her GP and, possibly, raised a grievance, depending on what medical advice she received. But I do not know, since no evidence has addressed it, what difference in outcome, doing so would have produced. If she had remained at work presumably her perception that she was being harassed and undermined would have continued even if, as I find, little of significance occurred between 3^rd February and August 2006. If she had been certified unfit for work then a cause of her stress would have been removed but other stresses may have played an even more prominent part.

It is for the Defendants to prove causative contributory negligence. On the evidence I am not in a position to find what causative effect her failure to seek medical advice and/ or bring a grievance would have had. The claim of contributory negligence therefore fails.

I heard very little evidence and received minimal submissions from the Claimant about quantum. In the light of my findings it is not necessary for me to assess quantum. But should this matter go further, some findings may be of assistance.

First, even if there had been causative harassment etc which materially contributed to the Claimant’s condition, I would have concluded that there was a significant probability that the Claimant would have suffered a breakdown within a short time of August 2006 from the causes I have identified above. There were significant changes afoot at the hospital, a number of her associates left, in fact few of her fellow senior employees remain. I am satisfied that the Claimant’s concern about retaining her job would have increased which in turn would have increased the pressures on her.

In December 2006 the hospital was acquired by a joint venture between the Rotary Group Ltd and the Canadian Hospital Network International. In her witness statement dated 6th July 2001 Mrs Clarke-Rossi stated that in early 2007 a redundancy programme was proposed and implemented whereby the executive team was reduced by 50% and approximately 53 persons were made redundant. Mr Anderson was one of those made redundant. Dr Al Muhairi remained Acting CEO until December 2006 and then became President of the hospital until March 2008 when BUPA took over.

In evidence Mrs Clarke-Rossi could offer no reason why the Claimant would have been made redundant but in her statement she said she believed the Claimant would not have survived the restructuring because a previous report had recommended reducing the then executive structure to 3 executive positions, Clinical Programmes and Nursing, Medical Affairs, and Corporate Affairs and the latter post, given that it required ultimate responsibility for finance, required an accountancy qualification which the Claimant did not have. She said the only executive members who survived the original restructuring were Madeleine Delaney, the then Clinical Manager and Miss Mackay, neither of whom was now employed at the hospital.

In her statement dated 8th August 2011, dealing with documentation she states that had the Claimant remained an active employee it is highly likely that her terms and conditions would have been transferred.

Mrs Clarke-Rossi said that when BUPA became the owners there was a new CEO and executive team. She was the sole member of the team who had survived the two transfers of ownership, apart from the Claimant who remained formally employed.

Whilst I cannot rule out the possibility that the Claimant would have remained at the hospital following the restructuring it seems to me unlikely that she would have done so. In this connection I bear in mind not only the fact of the restructuring, within which the Claimant might not easily have been accommodated, but also the domestic and health pressures she was under. The suggestions of “burn out” and not enjoying her job in the notes also militate against her being retained or wanting to be retained.

I am also satisfied that the Claimant would not have become CEO at the hospital after Dr Al Muhairi’s term as Acting CEO ended in December 2006. I have heard no expert evidence that her qualifications and experience would have fitted her for the post or the post of CEO elsewhere for that matter. Mrs Clarke-Rossi said that the current CEO at the hospital had 20 years experience of running hospitals and had had responsibility for 11 hospitals, which reflects considerably more experience than the Claimant had.

At present the Claimant remains employed by the Defendants but unfit for work. Having heard Professor Murphy I conclude there is a good prospect that the Claimant will be fit for full time work in about a year’s time. It is common ground that she ought not to return to the Cromwell Hospital. BUPA will have an obligation to accommodate her to the extent that it is practicable to do so but at present what will happen remains speculative.

In the year ending 5^th April 2006 the Claimant was in receipt of a gross salary of £109,378 plus benefits which included private medical and dental treatment for herself and her family, life assurance and PHI. At present she receives £45,203 pa net from UNUM who also pay her pension contributions. As I understand it she remains entitled to these benefits so long as she remains employed by the Defendants. UNUM benefits may be expected to continue for as long as the Claimant remains employed but unfit for work. I am told that CRU benefits continue at £94.25 pw and that CRU payments to 6^th March 2012 total £22,605.50. I am also told that the Claimant’s annual loss, disregarding the UNUM payment, is £60,845 net but £15,641 when the UNUM payment is taken into account.

To date there should be no pension loss as the Claimant remains employed and her contributions have been met by UNUM.

Finally, I hope that the Claimant will now be able to put this unhappy experience behind her and look to the future with renewed hope. The past years have been very draining for her. I hope that she will take encouragement from the fact that the expert psychiatrists are optimistic for the future. And, of course, I wish her well. My grateful thanks to counsel for their assistance.