Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
THE HON. MRS JUSTICE NICOLA DAVIES DBE
Between:
KEITH SINGH | Claimant |
- and - | |
JOSEPH WEAYOU | Defendant |
Greg Callus (instructed by Brett Wilson LLP) for the Claimant
The Defendant appeared in person
Hearing dates: 18-20 July 2017
Judgment
Mrs Justice Nicola Davies:
The claimant sues for libel and malicious falsehood. At all material times the claimant and defendant worked as psychiatric nursing professionals at the Priory Hospital in Roehampton (“the hospital”). The claimant is and was at the relevant time the Night Services Coordinator, the defendant worked as a Health Care Assistant (“HCA”) but left the hospital in May 2017 in order to undertake study to qualify as a registered mental health nurse. On 24 August 2015 at 7:36am the defendant published an email (“the email”) to Suzie Adam, a senior manager at the hospital and Woojdan Raza, the HR manager at the hospital. The email contained the following words which referred to and are said to be defamatory of the claimant:
“Dear Suzie, I would like to formally complain against Mr Keith Singh …
I would like to address the second key word which is victimisation. Mr Keigh has sexually approached many times in the hospital dating back to 2013. He used to cook and bring me food many times and he equally used to ask me out. He used to touch my butt and sexually praised me. He knows that I don’t smoke nor drink but he used to come on our ward to ask me out for a cigarette. Most of my colleagues knew that he had an interest in me sexually. After all his attempts failed, he became frustrated and began to do everything possible to push me out of the hospital. …”
It is pleaded that in their natural and ordinary meaning the words complained of meant and were understood to mean that the claimant who was in a position of trust and authority was guilty of inappropriate sexual harassment of the defendant lasting two years – including sexually assaulting him – and that when his advances were spurned the claimant sought to unlawfully seek the removal of the defendant from his job, which amounted to victimisation.
The publication of the email is said to have caused or was likely to cause the claimant serious harm to his reputation pursuant to section 1 of the Defamation Act 2013 (“the 2013 Act”).
Malicious falsehood
It is alleged that the words complained of were published by the defendant knowing and thereby intending that they should be understood to bear the meaning identified above and were false. The words are said to have been published maliciously, the Particulars being that on 22 August 2015 the defendant approached the claimant seeking to swap a shift. The claimant refused to authorise the swap on the grounds that the defendant would not have been sufficiently rested, doing a night shift followed by a day at university then another night shift. It is alleged that since the refusal the defendant has harboured feelings of ill-will towards the claimant and it was in the email of 24 August 2015 that the defendant made the complaints against the claimant.
It is the claimant’s case that the defendant did not have an honest belief about the truth of the natural and ordinary meaning of the words complained of and he knew that the allegations he was making against the claimant were manufactured and untruthful, alternatively he was reckless as to their truth. Alternatively the claimant relies upon section 3(1)(a) of the Defamation Act 1952 (“the 1952 Act”) in that the words complained of published in permanent form by the defendant were calculated to cause the claimant pecuniary damage.
The defendant has appeared in person before the court assisted by a McKenzie friend. The defendant composed his first pleaded Defence, counsel drafted a detailed Amended Defence. In the Amended Defence the publication, the words contained within it and their alleged natural and ordinary meaning are admitted. Of that meaning and the imputation thereby conveyed it is the defendant’s case that they are substantially true (section 2 the 2013 Act) alternatively represent honest opinion (section 3 the 2013 Act) or took place on an occasion of qualified privilege. It is denied that the claimant has suffered, is or is likely to suffer, serious harm to his reputation. Malicious falsehood is denied on the grounds that the statement was true and the publication was not done maliciously.
The Defamation Act 2013:
“1. Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.
2. Truth
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
3. Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
(6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person (“the author”); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion.
(7) For the purposes of subsection (4)(b) a statement is a “privileged statement” if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—
(a) a defence under section 4 (publication on matter of public interest);
(b) a defence under section 6 (peer-reviewed statement in scientific or academic journal);
(c) a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);
(d) a defence under section 15 of that Act (other reports protected by qualified privilege).
(8) The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed.”
This trial has focused upon a resolution of the facts to determine the truth of the case of the claimant and the defendant. As to the defence of “truth” in respect of libel the burden of proof is upon the defendant. The claimant accepts that section 2 of the 2013 Act means that the defendant need only prove that his allegations are substantially true however he will not avoid liability by avoiding the truth entirely. The defences of honest opinion and qualified privilege in libel are defeated by “malice”. In this context “malice” means publication knowing the information to be false, or absent any belief in its truth, or being reckless as to its truth. Serious harm is a question of fact having regard to all the circumstances including the gravity of the allegations, the scale and nature of the publishees, the likelihood of further dissemination and the vulnerability of the claimant’s reputation as against such allegations. As to malicious falsehood the burden of proof is upon the claimant.
Evidence of the claimant
Mr Singh was born in Trinidad in 1965, moved to the UK in April 1990 to undertake a degree in nursing at Brunel University and became a British citizen in 2001. He has been in a relationship with his partner Arkadiusz Ambroszkiewicz since 2000. They live together in London and share a stable, monogamous and loving relationship. Prior to joining the hospital in May 2000 as a Night Services Coordinator the claimant worked as a nurse in various hospitals in the London area progressing to senior positions. The role of Night Service Coordinator involves the supervision of the night staff in the hospital, seven wards, usually twenty-six to thirty people. He will deputise for the Hospital Director or Clinical Services Manager when required. The duties include dealing with referrals and administration. The claimant’s office is on the ground floor of the hospital. He has stayed in that role for seventeen years because he has enjoyed his time at the hospital although he has found it very difficult recently because of the false allegations the defendant has made against him.
The claimant believes that the defendant began working at the hospital around 2010 but it was not until 2012 when he began working night shifts on a full-time basis as a HCA that the claimant became his supervisor. As such his role was to provide support and guidance e.g. through review meetings. In late 2012 the senior management changed the supervision structure at the hospital, as a result the claimant was not responsible for supervising HCAs. The review meetings between himself and the defendant were few.
When the defendant was working night shifts the claimant was effectively his line manager. The defendant would be working under the direct supervision of the nurse in charge of the ward. The claimant was responsible for arranging the staff rota for night shifts and supervising the staff when on duty but it was the ward manager who allocated the staff to the shifts. The shifts were booked four weeks in advance by the ward managers. The staffing levels for the hospital were set by the ward managers in conjunction with the senior management team. On occasion the claimant would have to redeploy a member of staff to a particular ward if, for example, one-to-one nursing of a patient was required or adjustments had to be made because a member of staff had telephoned in sick.
Between December 2012 and April 2013 the defendant was working on the Upper Court Ward. During the course of a night shift the claimant would do two ward rounds. The first at 9pm to check upon patients, arrange for them to be given appropriate medication and collect a report, the second at 6:30am prior to handover. The only other occasion he would have cause to go to Upper Court Ward was as the holder of the bleep if it went off and he was required to attend an emergency. During this period the claimant’s interactions with the defendant were very limited, he was not his friend but he had no reason to dislike him. Their relationship was professional, they were polite to each other.
On 7 July 2014 the claimant was in the office on the Upper Court Ward during one of his routine visits. The defendant told the claimant that he believed he had accrued certain rights during the course of his employment, the claimant did not feel he was qualified to deal with the matter and told him to speak to the Clinical Services Manager, Suzie Adam. The claimant emailed Ms Adam and received an “out of the office” reply until 14 July 2014. He told the defendant that he would need to wait until she had returned from her holiday or he could speak to Sue Harms, the Hospital Director. This was the first time that the defendant had spoken to the claimant at any length since their supervisory meetings in 2012. The following day the claimant was told by the defendant’s ward manager, Anand Judgnauth, that the defendant had been to see Ms Harms and told her that he wanted to start a training course to become a nurse but that he wanted to remain in full-time employment whilst so doing. Ms Harms had refused his request on the basis it would be impossible for anyone to undertake a demanding nursing course whilst continuing to work full-time.
In his witness statement the claimant states that around late July or early August 2014 the defendant approached him and explained that he had been offered a full-time nursing course at South Bank University. The defendant felt that if he accepted the offer he would be forced to resign from the hospital. He was concerned that this would lead him to receiving less income which meant he would be unable to support various charities in Liberia, his country of origin, which he was very passionate about. The defendant asked the claimant if he would be able to carry on working part-time if he accepted the university place. It was the claimant’s understanding that the hospital was not allowing any employees to work on a part-time basis because another colleague had raised the same query a couple of months earlier and had been refused by HR. The claimant told the defendant that he was not entirely sure that he would be able to work part-time and if he was interested in pursuing this he should contact the HR department.
On 14 September 2014 the defendant sent an email to Ms Adam which he copied to the claimant, Woojdan Raza, the HR manager, and Anand Judgnauth. The email is timed at 23:57, the subject is “Urgent! Flexible working application form”, it reads as follows:
“Dear Suzie,
I emailed you one week ago concerning a change in my personal situation which my line manager could not help me resolve.
I was made to understand by my line manager and night nursing supervisor that my problem could be solved by only resignation and turning to zero-hour contract (bank shift). I do absolutely disagreed and contacted the head office where a contact person instructed me to fill up the form for flexible working application. …”
When the claimant saw the email he was concerned and very disappointed that the defendant had made false allegations about him to Ms Adam, he denied suggesting to the defendant either that he should resign or undertake a zero-hour, bank shift, contract. He said it was not within his remit to give such advice. The claimant called the defendant on the ward telephone and asked him to withdraw the allegation. The defendant refused to withdraw his allegations. As a result at 02:11 the claimant sent an email to Mr Raza, Ms Adam, Mr Judgnauth, which was copied to the defendant. It read as follows:
“Hello,
I am responding to this email as I am very disappointed with Joseph’s wrongful accusations. I have on NOOCCASSION (sic) informed Joseph that the only solution to his issue is resignation. He has come to me on various occasions for advice and I have told him whom he needs to make contact with. I am requesting that Joseph withdraws his accusation immediately or I will be left with no other recourse but to take a grievance for wrongful representation/accusation. I await your reply.
Keith Singh”
Shortly after this email was sent the defendant was signed off work for health reasons and the claimant decided against making a grievance because he did not believe he would achieve much in the circumstances.
August 2015
The claimant knew of the defendant’s absence from work because he saw the night rotas four weeks in advance and saw that the defendant was away on sick leave. He did not know the cause of the defendant’s ill health, he understood that the defendant did not want others to know of the cause.
On the first weekend that the defendant returned from work he was asked to move to the Adolescent Unit on the Friday night. The request was made by his ward manager.
On the following weekend (21 August) the number of patients on West Wing was low, as a result the defendant was moved to the Adolescent Unit on the Friday night. He objected to the move claiming that the work there could aggravate the injury to his back. At the time the claimant did not know why the defendant had objected to the move as he did not speak to the claimant. It was the nurse in charge of the ward, Adeen Ameerally, who informed the claimant of the defendant’s response. The claimant’s view was that this was a management decision and therefore the defendant had to abide by what was a reasonable request. In cross-examination the claimant said that the defendant’s return to work would have included a review by the ward manager in conjunction with HR as to what he could do. If any adjustments to his conditions of work were required they should have been done by the OT department in conjunction with the ward manager and the senior management of the hospital. The decision to send the defendant to the Adolescent Unit was that of the senior managers. It was the claimant’s responsibility to see the directions were carried out. The work required was one-to-one patient observation, there was no requirement for any control or restraint. There were no rational grounds to override the senior managers’ decision.
During the night shift on 22 August the claimant was asked by HCA Travis Wilson for the following night off as emergency annual leave, he wanted to help a friend move house. The claimant explained that the hospital would only permit such leave in exceptional circumstances and this did not constitute such an emergency. The claimant said that if Mr Wilson could find someone to cover his shift then he would reconsider his request. Later that evening Mr Ameerally approached the claimant and told him that the defendant wanted to take Mr Wilson’s Sunday night shift. Mr Ameerally said that he understood that the defendant had already worked four shifts that week and was due to attend university the following day. He said the defendant had issues about university. Mr Ameerally was concerned about the situation as was the claimant. The claimant did not feel that he could authorise the defendant to work throughout the night on Sunday, attend a full day at university before returning to work on the Monday evening for his scheduled shift. As Mr Ameerally was the defendant’s supervisor the claimant asked him to inform the defendant that he could not cover Mr Wilson’s shift. About half an hour later the defendant came into the claimant’s office, he was very angry and began to remonstrate with the claimant. When the claimant explained the reasons for his decision the defendant began raising his voice in a threatening manner. He was standing at or near the door of the claimant’s office, his hands on his hips, chest puffed out, using an angry and aggressive tone to the claimant. He refused to accept the claimant’s decision, he followed him into the kitchen area where the claimant was going to make coffee and continued to remonstrate with him. At no time did the claimant become angry with the defendant. The defendant told the claimant that he was going to report him to Suzie Adam for bullying and harassment, he made no mention of any sexual assault or harassment. The incident was witnessed by Travis Wilson and Adebola Shodipo. The claimant was very shocked by the defendant’s change in attitude, he had not behaved in this aggressive manner towards him before. In cross-examination the defendant made the point that the universities would be on vacation at this time. The claimant did not accept that the defendant did not have to attend university on the Monday.
It was not until 30 September 2015 at a meeting with the HR manager, Mr Raza, that the claimant became aware of the defendant’s email of 24 August 2015 and the allegations it contained. His reaction was one of shock and disbelief, he could not think of a legitimate reason why the defendant would make the false allegations against him. In his written and oral evidence the claimant refuted any allegation of behaviour of a sexual nature towards the defendant. He denied making any comments about the defendant’s dress, if he ever spoke to the defendant about his dress code, which he did not recall doing, it would have been to remind him about the dress code applying to all male staff at the hospital, namely black trousers, a shirt, a tie and black shoes. The claimant accepts that he can be quite strict in terms of enforcing the hospital’s dress code.
The claimant denies touching the defendant on his bottom or in any other sexual way touching the defendant. He would never act in such a way whether in the workplace or elsewhere. He finds any form of sexual assault or harassment completely abhorrent, he remains mortified that the defendant has made what he describes as a toxic allegation against him.
The claimant denied ever offering the defendant a lift in his car. To the best of his knowledge he has never offered or given any member of staff a lift to or from work save for one colleague. At Christmas the hospital arranges transport for the staff and organises groups who live in the same area to travel together. He describes the allegation of offering the defendant a wristwatch worth £5,000 as absurd. He has never owned a watch worth that amount, in 1999 he purchased a Tag Heuer wristwatch which cost £3,600. The defendant cross-examined the claimant as to the fact that he kept “candies” in his car. The claimant agreed that he kept mint humbugs in his car, the point being made by the defendant that he could not have known of the presence of these sweets unless he had been in the car. To that the claimant said that he drove a Mercedes Class A with a German registration plate. Staff would ask him if it was difficult to drive a left-hand drive car and he would invite them to sit behind the wheel. The sweets were visible, if anyone asked if they could have a sweet there was no reason to say no. The presence of the sweets was known to other staff.
As to the allegation that the claimant cooked food for the defendant and brought it to the hospital that is denied. On one occasion the claimant gave the defendant his own dinner because the defendant approached him and said that he could not afford to buy dinner for himself. The claimant gave his dinner which had been cooked for him by a neighbour. In his oral evidence the claimant explained that he would regularly eat with three of his colleagues, if the occasion arose when one person would bring food for others he would purchase a Chinese take away.
As to the allegation that he asked the defendant to go out for a cigarette the claimant denied that. He goes out for cigarette breaks with two colleagues, one of whom is Mr Ameerally.
Contrary to the defendant’s assertion the claimant has no power to sack an employee.
The claimant found the investigation of the defendant’s complaints to be deeply humiliating and stressful. The claimant and the defendant were interviewed as were three staff nurses, Helen Balogun, Adeen Ameerally, Mukura Nkumbula and two HCAs, Travis Wilson and Adebola Shodipo. The hospital published its report on 30 October 2015. The only allegation upheld was that the claimant had rejected the defendant’s request to cover Travis Wilson’s shift but found that it was a matter within his professional discretion and he had exercised it fairly. The claimant was relieved at the findings but was extremely concerned that damage to his reputation had been done. Colleagues had been interviewed, more people came to learn about the allegations in the small and close-knit hospital environment where the claimant is well known.
Shortly after the report the claimant was approached by Oyindamola “Damola” Ojerinde, a registered mental health nurse working at the hospital. She said that the defendant had told her that he was setting the claimant up by making allegations. On 7 December 2015 the claimant made a formal complaint against the defendant to Mr Raza in accordance with the hospital’s grievance procedure on the basis that the defendant had made false allegations against him with the intention of causing him harm. He also complained of the fact that the defendant was setting him up. The latter complaint was investigated by Dawn Tripp. Only one of four people investigated, Damola, stated that the defendant had said he was setting the claimant up. Relying upon Damola’s evidence Ms Tripp concluded that the defendant had said these words. As a result of that finding disciplinary proceedings were brought against the defendant. In June 2016 the hospital concluded that the defendant’s actions did not amount to gross misconduct.
18 November 2016
The claimant was working the Friday night shift. This was unusual because since the defendant made his allegations the claimant had lost his overtime shift every other Friday in order to avoid working with the defendant. He was fearful of the defendant making more false allegations. He believed the defendant was not due to be working so he agreed to work the shift. Soon after he started the shift the claimant went to West Wing and spoke to another HCA. He learnt that seven members of staff were on duty that night but only six were required for the shift. The HCA informed the claimant that the defendant had arrived for the shift despite not being scheduled to work. As a result the defendant was told to go home. On Monday, 21 November, the claimant received an email from Dawn Tripp informing him that the defendant had made a further complaint claiming that he had unfairly sent the defendant home from his shift on the Friday night. An investigation was carried out and the conclusion was that the claimant had carried out his role in taking the steps that he did and no finding of wrong-doing was made.
Impact of the defendant’s allegations
It is the claimant’s belief that prior to the defendant’s allegations he had an excellent reputation at the work which he had built up over the 17 years during which he had been employed at the hospital. This was borne out by comments made to him by other members of staff. It was clear from the claimant’s witness statement and his evidence to the court that he takes professional pride in the work that he does and in his reputation. In his Defence the defendant claims that others have made complaints against the claimant. In 2016, seven months after the patient left the hospital, a female patient made an allegation that the claimant and another colleague had inappropriately touched her. The claimant was suspended on full pay pending investigation by the police and the borough council and the hospital. It was found that there was no evidence to support the patient’s allegation. It is the claimant’s belief that a suspension may not have been made had there not been allegations of the sort raised by the defendant. He returned to full-time employment. One other complaint was made by a colleague regarding comments which the claimant made about her dress at work. No proceedings followed this complaint.
The claimant states that the defendant’s allegations have had and continue to have a devastating effect upon him. He used to have a very good relationship with the vast majority of staff but following the email he finds there is often silence when he walks onto a ward and staff avoid looking him in the eye. He felt that a significant number of staff for whom he had a supervisory responsibility were actively avoiding him. He was aware that when walking around the hospital there were occasions when staff were sniggering at him, this continues to this day. The claimant finds it very uncomfortable when members of staff try to avoid him when he walks into a room. It makes it difficult for him to do his job, he is concerned that some members of staff no longer trust him or respect him. The claimant is concerned that despite the findings of the hospital investigation some people see him as a sex pest, “inevitably some mud sticks”. The claimant is no longer invited to staff nights out or away days by ward managers. The hospital is a very close-knit community, a lot of gossiping takes place, it is inevitable that the allegations will have spread to other individuals. The claimant believes he has not been invited to attend management training or a mentorship programme as a result of these allegations. He is fearful that if he tried to move to a different hospital any reference from the hospital would be muted. He now feels he is too much of a risk to promote to a more senior role.
Distress, anxiety and injury to feelings
Significant health problems including anxiety, high blood pressure and problems with sleep occurred in the months following the making of the allegations. The claimant saw a doctor who prescribed medication for his sleeping problems and anxiety. The medication cost in the order of £30. He has now been diagnosed with stress related type 2 diabetes for which medication is required, the claimant believes the stress was caused solely by the defendant’s allegations. For a period of six months following the allegations the claimant, who rarely consumed alcohol, drunk heavily. It was done during a period when he described himself as feeling “particularly down”. This has since stopped. The claimant has lost all motivation for social activities, for example with his partner, going out for dinner and attending social events. He now finds it difficult to trust people, he describes himself as feeling paranoid and being concerned that someone else might fabricate allegations against him.
Financial loss
The claimant normally worked an overtime shift every other Friday. Between 30 September 2015 when he was informed of the defendant’s allegations and 12 May 2017 when the defendant resigned, he missed 41 of these overtime shifts. Between 30 September 2015 and 31 July 2016 the shift entailed 10.75 hours’ work at £20.58 per hour. In August 2016 the shift was extended to 11 hours’ work at the same hourly rate. Applying the figures and applying the higher rate of Income Tax of 40% the net loss claimed is £5,501.10.
The claimant has issued this claim to vindicate his reputation which has been seriously damaged by the defendant’s false allegations. He regards himself as an honest man who takes pride in his work. He has remained at the hospital for 17 years because he has done an extremely good job. He feels that the defendant has tried to undermine his hard work by fabricating allegations which he knew would cause the claimant serious problems. His role is no longer the same as it was. The claimant is devastated by what the defendant has put him through.
Arkadiusz Ambroszkiewicz
Mr Ambroszkiewicz is the partner of the claimant. They have been in a relationship since 2000, he is a Night Operations Manager at a hotel in London. Mr Ambroszkiewicz described their relationship as very stable, family orientated, enjoying a peaceful life together. It remains strong 17 years after they first met. They work similar hours and generally keep their private lives separate from their work lives.
The claimant, when he learnt of the allegations, was distraught, very emotional, he could not believe that these allegations had been made against him. The result has been a change in the claimant’s life. He has become withdrawn, more distressed, he does not want to speak about the matter, he no longer socialises, the allegations have caused difficulties with sleeping and for a limited period with excess consumption of alcohol. The claimant’s sense of humour has been lost, he continues to be affected.
Asked by the defendant whether the claimant had ever cheated on him Mr Ambroszkiewicz said that for 17 years they have had a very truthful and kind relationship, there are no secrets between them, there is no reason for either to cheat. Asked if he knew who went in the claimant’s car, Mr Ambroszkiewicz said he does not know who goes in the car when the claimant is at work.
Dawn Tripp
Ms Tripp was the Hospital Manager at the Priory Hospital in Roehampton between January 2016 and March 2017. She is now employed as a Business Development Manager at AAP Housing Services Ltd. It was Ms Tripp who conducted the investigation into the allegation made by the claimant in his grievance letter dated 7 December 2015 in which he alleged that the defendant had told staff that he was setting up the claimant by alleging that the claimant had sexually harassed him. As part of the investigation Ms Tripp spoke to Ms Oyindamola Ojerinde (“Damola”) a registered mental health nurse on 23 February 2016. A note of the conversation was made by Danielle Lamont, a HR assistant at the time. It reads:
“DT: **** can you please confirm whether Joseph has ever mentioned anything to you in regards to setting Keith up in any way?
OO: This was a long time ago when I was permanent. Joseph said Keith normally touches, like slaps his backside. I asked if he had any evidence and was anyone there when it happened and he said no and that it wasn’t intrusive. He said he could use it to set him up if he crossed his way and that he had his own evidence.
DT: Have you ever witnessed this kind of behaviour between Keith and Joseph?
OO: No Keith is very professional and strict. He would not let you on his ward unless you were wearing your badge.
DT: When did Joseph make this allegation?
OO: 2013 or 2014 it was before I was bank and was permanent.
DT: Thank you and well done for remembering so far back.”
Questioned by the defendant Ms Tripp said it would be normal to do a face-to-face interview but if that was not possible the interview would have been done by telephone. If it was done by telephone it would be on a loud speaker and Danielle would contemporaneously minute the conversation. She was unsure if Danielle had sent a transcript of this conversation or a conversation with the other three persons interviewed, namely Helen Balogun, Travis Wilson and Mukura Nkumbula to each to sign. Ms Tripp accepted it would be best practice to send a copy of the transcripts to each of the individuals. She agreed the transcript from the defendant’s interview was not signed. Damola was the only witness who said she had been told by the defendant that he could set the claimant up. It was upon this evidence that Ms Tripp based her conclusion, namely that she believed that the defendant had told the witness that he could set the claimant up.
Asked about a copy of an email which Damola had sent to the claimant’s solicitor on 11 June 2016 the relevant part of which is as follows:
“All what I told the Priory HR Manager (Dawn Tripp) when she asked me over the phone about what Mr Weayou said to me when I used to be his clinical supervisor. I told Dawn that Mr Weayou told me in 2012/2013 when I used to be his clinical supervisor that he doesn’t like the way Mr Singh normally treat or speak to him and that he has his evidence to support this. Whenever, I ask Mr Weayou about what sort of evidence he’s got, he would say he’s not telling me. I did not tell Dawn during our phone conversation that Mr Weayou will set up Mr Singh because I do not know what sort of evidence Mr Weayou had.
That is all what I know about it.”
Ms Tripp said that she did not think that that is what Damola said to her at the time of the interview.
The extract from the investigation of Ms Tripp relating to her conversation with Ms Ojerinde was served as a Hearsay Notice pursuant to section 2 of the Civil Evidence Act 1995 and CPR 33.2 on behalf of the claimant. It was done in the event that the defendant did not call her as a witness, it having been stated at paragraph 16 of his Amended Defence that she would testify in court on his behalf. Ms Ojerinde declined to provide a witness statement in support of the claimant voluntarily. She was not called by the defendant.
Helen Balogun
Ms Balogun is a staff nurse at the Priory Hospital, she joined in that capacity in November 2009. At the relevant time she worked night shifts and worked with the claimant and the defendant. She met the defendant when he worked at the hospital as an HCA to an agency in 2010. They worked together in the Adolescent Unit. In her role as staff nurse she was responsible for allocating work to agency staff. The defendant became employed on a full-time basis in 2012.
They began to work closely together in 2014 when the defendant was moved to Upper Court Ward. The defendant began to behave unprofessionally, he told Ms Balogun that he was not going to listen to her, he was not going to do things if she asked him, she said she was scared of him and he made her life hell. It was so bad she had to take time off. Ms Balogun did not know why the defendant was acting in this way and she told him that she would take it to her supervisor who was the claimant. Ms Balogun learnt that the defendant was behaving in this way because he claimed she had unfairly asked him to go home on a night shift when they had worked together in 2010, a claim she refuted. She asked the defendant to come to her office to discuss the matter. She told him that the incident had not occurred because she did not have the authority to send any staff home, that responsibility lay with the Night Manager. The defendant refused to listen to her and told her he would make her life hell because of the incident in 2010. He told other colleagues that Ms Balogun was bad and evil and continued to refuse to follow her instructions. She said he also made false allegations against her, for example she did not fill in relevant documentation. Ms Balogun spoke to the claimant about the defendant’s behaviour he provided moral support and told her to take it easy.
In late 2014 or early 2015 the defendant was claiming that he had caught Mr Anand Judgnauth, the Ward Manager, sexually assaulting a female staff member by putting his hand up her skirt when she was up against a wall. Ms Balogun did not know whether the allegation was true or untrue but she said the defendant made sure he told everyone about it. She and other members of staff advised the defendant to be careful about openly making such serious allegations but he took no notice. She said that he wanted to ensure that the allegation was as widely known as possible among staff in the hospital.
On a separate matter Ms Balogun told the Court that she would always bring a lot of food into the hospital. There were occasions when the defendant would tell her he would had no food to eat and she would share her food. As to the claimant bringing food she said he ordered Chinese food rather than bringing in food to share with others.
In cross-examining Ms Balogun the defendant initially suggested that he had never worked at the hospital in 2010. Ms Balogun refused to accept that, she was correct so to do.
The defendant put to the witness that after Christmas 2015 she told him that the claimant was going to sue him, he would use a law firm and they would ask the defendant to pay £600 and if he did the claimant would use that evidence in a court of law against him. The witness denied saying that. It was suggested to her that she told the defendant that the claimant had approached her and told her to lie for him, she denied that. The witness said that when this matter was going on and it was known within the hospital she called the defendant a number of times and told him that he and Keith should try and settle the matter amicably, not to let it go to court. She said everybody did not like what was going on.
The defendant asked Ms Balogun why, if he had behaved in that way to her, she was now saying that she would share food with him. Ms Balogun said that they had to work together as a team, because of that she forgave him, she did not want barriers to patients, she said “I work as a professional, there was that altercation after that we made up”.
The witness agreed on one occasion when she was raising a concern about another member of staff the claimant had worked with her on the writing of the letter. She said “We worked as a team and stated what has happened. As a team you work together, you help your colleagues.” It was put to the witness that in giving evidence that was payback for the earlier issue, she agreed there was payback in giving evidence but she said she wanted the Court to know what type of person the defendant is. She accepted that there was presently an investigation into her professional conduct but denied she was helping the claimant because he was helping her. The claimant did not have the authority to help her in the matter of her own investigation. It is for the HR department as to what is done in the investigation and any decision made. People at the hospital were talking about this matter, the staff on the West Wing and the Garden Wing. She said to the defendant “Be honest to yourself”, her reason for coming to court was not to payback but to give her “own witness” as to what had been going on.
Dineo Lekete
A hearsay notice pursuant to section 2 Civil Evidence Act 1995 and CPR 33.2 was relied upon by the claimant as the witness did not wish to give oral evidence. It contains an email from Dineo Lekete dated 1 July 2017 sent to the claimant. The subject is “Statement regarding claims from Keith Singh about ‘Joseph’s Allegations’”:
“Dear Keith
I am responding to the information you sent me as below:
‘A female colleague of mine Dineo (I don’t remember her last name saw Mr Singh trying to hug me every time. She said to me, “Don’t be offended, but are you gay?” I asked her why shew would ask me such a stupid question and she said that Mr Singh does not allow people in his car but gave me a lift twice and sometimes tries to hug me when I go to work. She said everyone was watching this friendship with interest because this man does not get close to people for nothing’.
‘Dineo then uses to hug me in front of Mr Singh to provoke a reaction from him. Every time she saw Mr Singh coming around she would behave as if we were dating. Mr Singh’s transferred me to Upper Court ward where Dineo didn’t work. On Upper Court I was surplus to requirements.’
I, Mirriam Dineo Lekete, together with my husband, Oageng Lekete, met Keith Singh in May 2002 when we joined the Priory. He became my superior and a Night Coordinator for the whole hospital. I then met Joseph Weayou when he joined the Priory and became his supervisor. Joseph knows my husband too. I left the Priory in 2015 but I still make random calls to the Priory ex colleagues when I feel like it.
As far as I have known Keith, it is normal for him to greet colleagues, including me and my husband by hugging them. I know both Keith and Joseph professionally. I know Keith has a partner because he has always signed the greeting cards he gave my husband and I, as from him and partner but I do not know his personal life.
I do not remember having the above stated conversation with Joseph Weayou but I know Joseph is interested in women as he used to frequently talk about his attraction to women and his past relationships with them and finds it easy complimenting women at work based on their looks.
Keith has always been caring and will always arrange for those who are interested in contributing for a gift for colleagues for any occasion like birthdays, births, bereavements, resignations etc and this promoted a good working spirit within the team. Keith always waited, in the mornings, for other colleagues, DB, Wanita to offer them lifts in his car, again this is just normal for him as he has always been kind and generous. I don’t remember witnessing Keith giving Joseph a lift in his car.
I know Keith and Joseph were not friends but work colleagues. I am very professional at work and had a lot of respect for Keith as my supervisor. I don’t remember hugging Joseph in front of Keith. There were occasions when Keith would walk into the office while I was sitting down, talking to Joseph, as his supervisor and shift coordinator and I have no idea that this was meant to be seen by Keith as ‘dating’ or let alone ‘provoke a reaction’. Keith knows my husband and has worked closely with him. I would never behave like that at work.”
The evidence of the defendant
The defendant’s evidence as set out in his witness statement.
The defendant, a naturalised citizen of the Netherlands, was born in Monrovia, Liberia. He came to the United Kingdom in 2010 for a better education. When in Liberia, a civil war was in progress, young people of the defendant’s age group experienced abuse of all sorts including sexual abuse. He escaped to the Ivory Coast where he worked for the Refugee Youth Association. In 1998 he went to the Netherlands where he attended the School of Economics and graduated with a bachelor’s degree in International Financial Management in 2006. In the same year he worked as a cash administrator for Footlocker Europe. The defendant is presently a nursing student at the University of West London, in his final year. He is the class representative, a member of the Board of Valediction.
He began employment at the Priory Hospital in Roehampton on 24 August 2012 as a Health Care Assistant (“HCA”). His role was to help the nurses to carry out their duties smoothly during a shift. He helped with prompting patients to take their medication, with bathing, clothing and clinical observation. Under supervision he helped nurses with admission, care planning and risk assessment. The defendant was directly answerable to every nurse on duty on his ward at any time. The nurse in charge had the right to assign him at the beginning of every shift and to send him to any ward if he or she deemed it necessary. The defendant resigned from his employment at the hospital on 12 May 2017. The defendant did not work directly under the claimant but because of his coordination responsibilities the claimant had a lot of control over the working life of the defendant.
Allegations of sexual harassment
In his witness statement the defendant details the allegations as follows:
“8. On December 25th 2012, the hospital offered to transport all staff to the hospital who were working that day using a minibus. I was working a night shift on Christmas Eve and again on Christmas night. Mr Singh offered to give me a lift on Christmas morning and night. During that morning, while on route home, I spoke of being late to send a gift to my fifteen-year daughter in the US. He then showed me a wristwatch that was worth £5000 according to him. He asked whether I wanted one. I told him the value of the wristwatch was too much for me to have as a gift and besides, I do not like free things.
9. After that Christmas period and into Spring of 2013, Mr Singh began to make comments to me about how I should dress and my appearance. This happened on a number of occasions. I do not remember exactly how many but I would say around 4 times. The first time, in January 2013, I was clocking in for my shift. I was wearing a shift and a vest. He asked me why I wore a vest all the time. He said that if I didn’t wear a vest it would show my nipples which would make me sexier. Nobody else was there. I felt embarrassed, but I didn’t say anything.
10. He made the same comment on three more occasions when he passed me in the corridor. He would not have been explaining the uniform dress code, because nobody in the hospital wears a uniform in the hospital. The dress code simply requires staff to dress professionally and to wear black shoes.
11. One evening in February 2013 I was in his office and he commented that I had red lips but did not know what he meant when he said because I did not know that I had a red lip.
12. On a couple of occasions around this time when I arrived at work, he would greet me by trying to hug me like a guy hugging a female. In my culture, men never greet each other like that way and I found it embarrassing.
13. I did not say anything about Mr Singh’s behaviour because I was afraid of ramifications because of his position.
14. A female colleague of mine Dineo (I don’t remember her last name) saw Mr Singh trying to hug me every time. She said to me, ‘Don’t be offended, but are you gay?’. I asked her why she asked me such a stupid question and she said that Mr Singh does not allow people in his car but gave me a lift twice and sometimes tries to hug me when I got to work. She said everyone was watching this friendship with interest because this man does not get close to people for nothing.
15. Dineo then uses to hug me too in front of Mr Singh to provoke a reaction from him. Every time she saw Mr Singh coming around, she would behave as if we were dating. Mr Singh’s transferred me to Upper Court ward where Dineo didn’t work. On Upper Court, I was surplus to requirements.
16. I was very afraid of losing my job and I was also very embarrassed as colleagues started calling me names and they would joke about me and Mr Singh, for instance asking whether I was the husband or the wife.
17. Sometime around the end of March 2013, Mr Singh cooked food for me and brought it to work. He did this twice. He brought food in a plastic bowl with a lid which he put in a plastic bag. One time it was chicken and rice in tomato sauce and the other time it was curry chicken and rice. I took the food, but I did not eat it. It is not true that I said I could not afford dinner. I was in full time employment at the time and could afford to buy food for myself, my daughter in the US and my mother in Africa.
18. Around April 2013 while on Upper Court, Mr Singh came there twice to ask me if we could go for a cigarette break. I don’t smoke, which Mr Singh knew. I agreed to go with him and he led me to a passageway between Upper Court and Priory Court. He smoked a cigarette but I did not. He did not say a word during those times and we did not talk to each other at all. I was very uncomfortable and I think he could see that. When he went back to his office downstairs, my colleagues started laughing at me once again and this brought embarrassment to me and always felt uneasy among my colleagues knowing the culture I come from.
19. One day in April 2013, when he came to Upper Court to collect data from the nurse in charge in the nursing office. When he was leaving the nursing office, I was standing at a table which is in the corridor outside the office. I was writing notes and doing observation. My back was towards the office. As he passed me, he touched my backside with his hand. He then went down the stairs to his office in Garden Wing. As he started going down the stairs, he looked back at me and smiled.
20. After the incident when Mr Singh told me not to wear a vest, I realised that Mr Singh was interested in me sexually and was making sexual advances towards me, and all the behaviour I have described (including the lifts in his car, the watch and the food) was part of this. Even if Mr Singh was not making sexual advances, I honestly believed that he was and that all his behaviour towards me was connected to those sexual advances. My belief was strengthened by the way in which my colleagues talked to me and teased me about Mr Singh’s interest in me.
21. I was concerned that if I spoke out against Mr Singh’s behaviour he would be able to sack me. After the incident when he touched me, I decided to distance myself in a way that will not cost me my job. I avoided him as much as possible, including asking others to book my shifts so that I did not have to speak to him.”
As a result of what the defendant described as the sexual advances he kept his distance from the claimant. In June 2014 the defendant states that he approached the claimant to ask for his full-time contract to be turned into a part-time contract because he was going to study mental health nursing at university from September 2014. The claimant told the defendant this was not possible, he would have to resign, move to a zero-hour contract and would be dependent on the claimant for shifts. The defendant refused, he told the claimant he could not trust him, he would ask his manager and the HR department. His statement continues:
“22. …I emailed my manager and copied Mr Singh and I explained exactly what he had told me. I do not have a copy of this email which was sent from work. Mr Singh called that night and threatened to sue me if I do not retract my email. I told him to go ahead suing me but I was not going to retract my email. I had no contact with Sue Harms but in September the HR manager wrote to me offering a new shift pattern.”
The defendant stated that the situation deteriorated between himself and the claimant, when he booked overnight shifts at night the claimant would cancel them. This continued until January 2015 when the defendant became ill and was hospitalised for three weeks being diagnosed with TB of the spine. He was unable to return to work until six months later when he received a “fit note” from his general practitioner stating he was unable to do heavy manual work including lifting. The defendant would take painkillers before going to work. As he was directly answerable to the nurses in charge they would allow him to do tasks e.g. helping with admission, observation, care notes which were not physically demanding. He states that:
“27. Mr Singh knew about my absence from work and the reasons for it. Nevertheless on at least two occasions he allocated me to shifts on wards where it was likely that I would have to restrain patients. I told him that I could not do that sort of work. He responded by saying he was not HR and could not accept limitations on my work.”
On 22 August 2015 another HCA, Travis Wilson, asked the defendant to cover his shift the following night which was a Sunday. The defendant approached the claimant with the request and the claimant “angrily refused”. The claimant told the defendant that it was “against the law for me to do the shift, because I was a student and I would be coming to work directly after a clinical placement.” The defendant told the claimant that the shift was on the Sunday during the summer vacation and that there was no placement. The claimant still refused, the defendant told him that he was discriminating against him, the claimant said he had no evidence. The defendant states that the claimant was treating him in the manner described because he had made it clear to the claimant by his behaviour that he was not interested in the claimant’s advances. The defendant believed the claimant was trying to make his working life difficult so that he would have to leave the hospital or perhaps be sacked.
Following the claimant’s refusal to permit the defendant to cover Mr Wilson the defendant states:
“30. The next week day on Monday, the 24th August, I approached the HR Manager at the time Mr Woojdan Raza by telephone and complained of my treatment by Mr Singh going back to 2013. He asked me to put that in writing in a form of grievance and send it in an email to himself and the deputy hospital director at the time, Suzi Adams. On the 24th August 2015, I did exactly what the director asked me to do …. The hospital acknowledged receipt of my grievance and promised to go to the bottom of it.”
The email was sent by the defendant to Suzie Adam. It is dated 24 August 2015 and timed at 07:36. The subject is “Complaint” and it states:
“Dear Suzie,
I would like to formally complain against Mr Keith Singh for the second time in least than a year. In my complain to you, I will use two key words in this email and they are discrimination & victimisation.
Suzie, ever since I started my study as a nursing student, I have been negatively targeted by Mr Singh who is the night coordinator. I have been treated differently since he failed in convincing me to resign when I was going to uni last year. He favours others over me and treat me like I am not a human being. I just returned from hospital and recovering gradually though I did not get any support from the Priory’s occupational therapist but I am trying my best to do my daily assignment whenever I am at work. On the thirteenth of this month, he called a staff called Cara on west wing to send me particularly to adolescent to do relieve there at midnight. At midnight, I went there and the staff nurse there told me he thought it was the wrong unit they sent to but he was calling Keigh to inquire. The nurse did call and as soon as Keigh heard by name, he angrily told the nurse to tell me to go back on my ward and to ask question properly before going to where he had ordered to send me. Suzie, please note here that I am just recovering from a broken back and can not walk normally as others would do. I had to walk back on west wing to ask Cara. The two nurses involved were surprised because he could have simply told us the name of the ward.
On August 22nd, 2015, I worked on west wing with two staff nurses. A colleague called Travis asked me if I could work for him on the night of the 23rd of August. I agreed because I had nothing doing that day. Mr Keigh again angrily refused to let me do the shift because he said I was a student and he won’t be going against the law because of me. I approached and he became very abusive towards me and was using all the f-words on me. Let it be clear here that I am a student but have no limit to working by law. I am not an international student and besides, everybody knows that students are presently on summer break. He was concerned that I will go on placement or school on Monday morning which raises a question. Does he ask everyone working at the priory where they will be going the next day? I term this kind of behaviour discriminatory and there is no place for it in the NMC or even in the principles of nursing practice.
Please investigate!
I would like to address the second key word which is victimisation. Mr Keigh has sexually approached many times in the hospital dating back to 2013. He used to cook and bring me food many times and he equally used to ask me out. He used to touch my butt and sexually praised me. He knows that I don’t smoke nor drink but he used to come to our ward to ask me out for a cigarette. Most of my colleagues knew that he had interest in me sexually. After all his attempts failed, he became frustrated and began to do everything possible to push me out of the hospital. This is unfair and it is against the NMC. Please investigate! I am from a ethnic minority group but I think there is a place in the law of this country that protects us from abuses as aforementioned.
I have discussed these issues with my pastor and he had advised to let these come to light by complaining to my immediate boss and I thought you were the right person.
Yours sincerely,
Joseph Weayou”
As to the allegations made the defendant stated that he honestly believed that they were true, they were not made maliciously or falsely. Five members of staff were interviewed pursuant to the investigation. On 30 October 2015 the hospital reported upon the defendant’s allegations. The hospital did not uphold the defendant’s allegations of sexual harassment. The defendant unsuccessfully appealed the decision.
The defendant’s evidence in court
Having been challenged by Helen Balogun, as to when he began working at the hospital the defendant initially denied working as agency staff in 2010, however he then agreed that he had started working in October 2010 as an agency worker. He continued in that capacity until May 2012, he had a three month break before beginning full-time work at the hospital.
Christmas Day 2012
The claimant made the offer of a lift to and from the hospital as they both lived in the Brixton area. When he got in the car the defendant saw the wristwatch hanging in the front of the car near the dashboard between the driver’s wheel and the passenger side. He commented that it was a very beautiful watch. The claimant said it had been given to him by friends, it was worth £5,000, if the defendant would like one the claimant could get him one. The defendant said it was too expensive, he did not like free things. He volunteered that in the claimant’s car were “candies” and denied when cross-examined that he had been given this information by others and used it to strengthen his fabricated story.
Comments upon dress
On the first occasion the claimant commented that if you do not wear a vest you look sexy, on the second occasion the claimant said that if the defendant did not wear a vest his nipples would show. The defendant found that an intrusion into his privacy and culture. As he was dealing with his boss he had to keep quiet. Cross-examined the defendant confirmed that it was only on two occasions that the claimant made comments about him not wearing a vest. He then said that on one occasion the claimant commented upon the defendant wearing a tight shirt as it would show a part of his body, his chest and muscles. He denied that he had made up that piece of evidence.
“Red lips” comment
When answering questions the defendant said that when the claimant commented upon his red lips he also said “it’s sexy”. The defendant did not say anything about the claimant’s behaviour because he was afraid that as the claimant was a manager he could recommend that the defendant be sacked, redeployed or expelled from the hospital. It was his first good job in this country and he had to be very careful.
Hugging
The defendant said it happened a couple of times, he later said it happened more than twice. As to the hearsay statement from Dineo Lekete the defendant informed the claimant’s solicitors on 10 July 2017 that the Dineo in the hearsay statement was not the Dineo he had been referring to in his witness statement. In his evidence to the court he said there were two Dineos working, he could not remember the last name of either. As to whether the statement from Dineo Lekete was the correct Dineo he said he did not know.
Claimant brought the defendant food
On each occasion the claimant had asked the defendant if he had eaten the food. This took place when the defendant was walking to the tube station on his way home, the claimant was driving home, he slowed down by traffic lights and asked the defendant the question.
Cigarette breaks
Asked why in April 2013 he had responded to the claimant’s request on two separate occasions to go outside for a cigarette break when on his own account he had been the subject of sexual advances by the claimant, the defendant said he feared the ramifications if he refused. On the first occasion people laughed at them when they returned from the cigarette break. He went a second time because he feared the ramifications if he refused. The defendant said that when the claimant failed to have his way you are indirectly punished.
Touching of the defendant’s bottom
Of the occasions in April 2013 when the claimant allegedly touched the bottom of the defendant, the defendant said that the claimant was coming from the office on the ward having collected his data, the defendant was writing by the banister entering patient details, the claimant came behind him and touched him on his backside. He then walked down a couple of stairs, turned round and smiled at the defendant.
On the defendant’s account the sexual advances or harassment began in December 2012 and ended in April 2013, he made no mention of any of these acts until August 2015. Challenged as to this the defendant said that following the touching in April 2013 he did tell the claimant he did not like what he did and that he would report it, the claimant said that if he did that he would sue him. It being pointed out to the defendant that he had never before mentioned this conversation, the defendant denied making it up. He said when he heard the word “sue” he was frightened as he was new in this country.
Conversation regarding part-time work
Asked about his evidence that in June 2014 the defendant asked the claimant for advice as to whether he could go part-time when studying for his mental health nursing degree the defendant said “he is a member of senior staff who would help or advise me wisely”. Of the conversation between himself and the claimant the defendant said that the claimant stated that the hospital did not give part-time work, the defendant would have to go onto a bank contract that was zero hours. The claimant said he could book a shift for the defendant, the defendant could call him and he would do that. To this the defendant replied “No, I can’t put my life in your hands”. As a result of that conversation the defendant’s evidence was that he went straight away to complain and he copied the claimant into that email. The defendant was shown the email which, on his account, he sent following that conversation. The email is dated 14 September 2014 and timed 23:57. The relevant part of the email is set out at paragraph 15 above.
Asked about the discrepancy in the dates, as between June and September the defendant said he missed the date. When Anand, his manager, did not respond to his request he sent an email to Suzie Adam. Having sent the email dated 14 September the claimant called him to his office. The claimant told the defendant that if he would not retract his email he would sue him, to which the defendant replied “go ahead”. It was following this that the claimant sent his email dated 15 September 2014 timed 02:11 (paragraph 16 above). The defendant said he had not received that email but when it was shown to him he accepted that he was copied in it.
The defendant was cross-examined as to his recollection of when he met with the claimant, his ward manager Anand and as a result sent the emails. He said he met with the claimant, after that he sent an email to Anand and copied the claimant into it. He received no response from Anand and so he sent the first email to Suzie, a week later he sent the 14 September email to Suzie. During further questioning the defendant said that on 14 September the claimant came to his ward before 23:00 hours, that was when they had the conversation. The 14 September email followed that conversation. After he sent the email the claimant called him to his office, asked him to retract the email and said he would sue him if he did not.
Following the defendant’s email to Suzie Adam, she sent him to the HR manager Mr Raza. As a result Mr Raza sent the defendant a letter dated 23 September 2014 in respect of his application for flexible working. It read:
“Flexible working application
Following receipt of your application and our meeting on 18 September 2014, I have considered your request for a new flexible working pattern. Unfortunately, on this occasion, I am unable to fully accommodate your request. I will however, propose an agreed reduction in hours to 21.5 hours a week, which equates to two shifts. This is on the understanding that these shifts cannot be stipulated solely for nights, and so these shifts can either be days or nights, depending on the needs of the business and the ward. You will remain on Upper Court staffing. …”
Having been shown the letter the defendant accepted that the claimant had been correct in saying that the hospital did not offer part-time work. The defendant accepted the proposal of the HR manager.
The defendant confirmed he was off work from December 2014 until 2 July 2015. He was first hospitalised in January 2015. Of his time away from work the defendant denied expressing the wish that he did not want others to know the cause of his sickness. Of the first occasion in August 2015 when the claimant asked him to work on another ward the defendant said that he told the claimant he did not want to go to that ward because of the risk that he would have to restrain a patient. To that he said the claimant responded that he would have to go home, he did not want to do that so he went to work on the ward.
22 August 2015 – request to cover the shift of Travis Wilson
The defendant denied speaking to the nurse in charge of the ward, Adeen Ameerally, prior to speaking to the claimant. When the claimant would not allow him to cover the shift he went to see the claimant. At this meeting the defendant denied that he was angry, that he was standing with his hands on his hips, his chest puffed out, his voice being raised. In his complaint of 24 August 2015 the defendant included a complaint that the claimant had refused to allow him to cover the shift due to the fact that he was studying and attending university. The report of the investigation of the defendant’s complaints was carried out by Mr Raza the HR manager and Suzie Adam. The defendant was asked to comment on the evidence of individuals interviewed. In the report it was noted that at a meeting with Adeen Ameerally he told the investigators that he had provided the claimant with feedback in respect of the defendant’s request to change shifts. He did not see, nor was he involved, in the confrontation between the claimant and the defendant. Adebola Shodipo is noted as having been present when the defendant confronted the claimant, he stated that the defendant was shouting but the claimant was not. Travis Wilson told the investigators that when the defendant approached the claimant following his refusal to agree the covering of the shift the defendant started shouting at the claimant, the claimant did not argue back, this was “provoked by JW”. The defendant said that he disagreed with the evidence of the witnesses who said he was the person raising his voice when he spoke to the claimant. He said that the people who gave evidence did not see the report and it is possible or probable that what is contained in the report is misrecorded.
Email 24 August 2015
The defendant was reminded of the evidence contained in his witness statement, namely that on 24 August he approached his HR manager, Mr Raza, by telephone, complained of his treatment by the claimant, Mr Raza asked him to put the complaint in writing in the form of grievance and send it to himself and Suzie Adam which he did. The defendant was asked to look at the relevant email timed at 07:36. He was asked at what time he had spoken to the HR manager, his initial response was that he could not remember. Pressed on this the defendant conceded that he did not speak to the HR manager before he sent the email and that his account as set out in paragraph 30 of his witness statement was not true.
In the Amended Defence, drafted by counsel, at paragraph 17 it is pleaded that:
“The Defendant has been enduring the C sexual advances over a lengthy period of time and finally resorted to making a complaint. The Defendant strongly denies that he has any malicious, untruthful, manufactured intentions to cause any harm to the Claimant. The Defendant was merely protecting himself against sexual harassment from the Claimant which had been ongoing for a while at that point.”
Reminded of his evidence that he had not been the subject of sexual harassment since April 2013 the defendant said he could not remember if there had been any sexual advances after April 2013. He denied making false and malicious accusations or indeed being reckless as to the truth of what he put in the email. He denied that his motivation in sending the email was one of revenge. The defendant said he was too scared to make complaints against senior members of staff, however he agreed that he had made complaints against the claimant in September 2014, August 2015 and November 2016.
September 2014
In his email of complaint dated 14 September 2014 the defendant referred to his line manager, Anand Judgnauth, and the claimant as being responsible for the refusal of his request for part-time working and the proposal that his only option was to resign and move to a zero-hour contract. Asked about the evidence of Helen Balogun relating to the defendant’s allegation of sexual misconduct of Mr Judgnauth (paragraph 46 above) the defendant said the evidence of Ms Balogun was untrue, it was a pure lie.
Asked about the investigation which followed from his complaint dated 24 August 2015 a note of the meeting of the investigators and the defendant states:
“Meeting with Joseph
Joseph has confirmed he feels victimised and discriminated by against Keith Singh. Joseph recapped the issue around swapping shifts with Travis and was upset about this as he stated he did not have university scheduled on the Monday. He stated the sexual harassment started in 2012 until 2013. He also states that there is no sexual harassment at present. He feels that he is being targeted and discriminated against due to the fact that he did not respond to Keith’s advances and also due to the fact he witnessed Anand, Ward Manager, sexually touching another HCA, and because of this both Anand and Keith are working to force him to resign.”
The defendant denied telling the investigators anything relating to Anand. He said they might be or were lying, they did not give him a transcript of his meeting with them.
Adeen Ameerally was the nurse in charge of the ward and the defendant’s supervisor in August 2014 and at the time of the investigation of the defendant’s allegations against the claimant. On 2 December 2015 the defendant sent an email to Suzie Adam copied to Woojdan Raza. It is a response to their report dated 30 October 2015. In that email he states:
“I am sorry to tell you and your team that you were all grossly misled by the apparent main witness in this investigation and the proofs are there to be seen. The apparent main witness in this investigation appears to be Mr Adeen Ameerally. Mr Ameerally misled your team when he said that I told him of the difficulties I am having with my coursework at university. …”
The defendant said that Mr Ameerally was lying in what he said to the investigation.
On 11 May 2017 the defendant sent his letter of resignation to Rebecca Crawford, the ward manager West Wing at the hospital. The letter reads:
“Dear Rebecca
I would like to take this time to thanking you and your team who had been endeavouring to see me depart the Priory after five long years of unbroken service. I am referring to you, the HR and the other guy. You guys have done a very good job in making life miserable for me during the last 2.5 years. You guys were instructed by the other guy to make life unbearable for me, but please note that I am not defeated. The continuous threats of dismissal from HR and your transposition of shifts to make life difficult for me has made me stronger and will live to fight another day. You despicably sent me to occupational health and it appears your mission was impossible. Due to your team’s (you, HR and the other guy) persistent intimidation, harassment and bullying, I raise my hands and say, enough is enough for my peaceful…”
It was put to the defendant that in this letter he was accusing HR of conspiring with the claimant to put him out of the Priory. The defendant said that he had never been sent to occupational health on his return, he had been told to go home if he could not perform, no adjustments had been made to accommodate his disability. It was not until 2017 that he was sent to occupational health.
The defendant denied the point put to him that on every occasion a person at the hospital would cross him he would make false allegations against that person.
The defendant states that he did not notice any member of staff gossiping about the claimant, the claimant continued his normal work throughout the whole investigations, he had the same friendships with colleagues until he began these proceedings and his lawyers began calling and emailing people at the hospital for statements.
Conclusion
The issues of fact in this case fall into two groups of allegations made by the defendant: a) the sexual harassment/advances of the claimant; b) the claimant’s acts of victimisation towards the defendant. The claimant and the defendant gave detailed evidence on these issues, the claimant called three witnesses and relied upon two hearsay statements. The defendant called no witnesses. The claimant gave an account in court which was consistent with the pleadings drafted on his behalf and the detail of his witness statement. In his oral evidence he presented as a man who was meticulous as to the detail of dates, times and the minutiae of events. The defendant, in questioning the claimant and his witnesses, did so in a confident manner greeting witnesses by their first name, thanking them for coming to court. In expanding upon the content of his witness statement prior to cross-examination the defendant was calm, confident and forthcoming as to detail. As questioning in cross-examination progressed and documentation began to demonstrate that the defendant’s account was not necessarily supported by the contents of the documents, his mode of answering questions changed. On occasion he stated he could not remember or would deny a matter put to him but then accept the fact when a relevant document was shown. Inconsistencies in the defendant’s account emerged.
The email which triggered this claim alleges that the claimant had sexually approached the defendant “many times” dating back to 2013. In the email the allegation that the claimant touched the bottom of the defendant is not confined to a single occasion: “He used to touch my butt and sexually praised me.” The detailed Amended Defence drafted by counsel pleads one occasion where the claimant is alleged to have touched the defendant on the bottom, that was in April 2013. No other allegations of sexual touching are pleaded. There is no pleaded allegation that the claimant sexually praised the defendant.
The defendant’s witness statement is dated 29 June 2017 and reads as though drafted by a lawyer. In it the defendant alleges that between January 2013 and the spring of that year on four occasions the claimant made comments about the defendant not wearing a vest as it would show his nipples and would make him sexier. In his evidence to the court the defendant stated that it was on two occasions that the claimant made comments about him not wearing a vest. He also said that on one occasion the claimant commented upon the wearing of a tight shirt (paragraph 64 above). This was new evidence.
The defendant volunteered new evidence when giving evidence in court in respect of other allegations. In respect of the “red lips” comment he said that the claimant in making the comments said that “it’s sexy” (paragraph 65 above). Of the allegations that the claimant brought food for the defendant the defendant stated that as he was walking to the tube on his way home, the claimant was driving home, he slowed down by traffic lights and asked the defendant if he had eaten the food (paragraph 67 above).
In cross-examination the defendant was challenged as to the fact that the sexual advances or harassment allegedly took place between December 2012 and April 2013 but he made no complaint until August 2015. For the first time in these proceedings he alleged that following the touching in April 2013 he did tell the claimant he did not like what he did and that he would report it, the claimant said that if he did that he would sue him. The defendant said that when he heard the word “sue” he was frightened as he was new in this country.
The defendant’s introduction of new evidence occurred in his account of the conversation with the claimant relating to part-time work which he originally stated to be in June 2014. Having looked at his email dated 14 September 2014 the defendant changed the date of the conversation to a date which had to be July or August 2014. Further questioned, the defendant said that the one conversation he had with the claimant was on his ward before 23:00 hours on 14 September, evidence which was not supported by the chronology set out in his own email.
The defendant was demonstrated to have been telling an untruth in his account of a meeting prior to the sending of the email of 24 August 2015. He had stated in writing and orally that he did so having spoken to his HR manager. When the timings were examined the defendant accepted that his evidence as to that meeting was untrue (paragraph 78 above).
The defendant was asked why he did not say anything about the claimant’s behaviour. His evidence was that as he was dealing with his boss he had to keep quiet (paragraph 64 above), he did not say anything about the claimant’s behaviour because he was afraid that as the claimant was a manager he could recommend that the defendant be sacked, redeployed or expelled from the hospital (paragraph 65 above). He responded to the claimant’s request to go for a cigarette break on two occasions because he feared the ramifications if he refused (paragraph 68 above). In his witness statement, paragraph 13, the defendant states “I did not say anything about Mr Singh’s behaviour because I was afraid of ramifications because of his position”. At paragraph 21 of the same statement it is recorded “I was concerned that if I spoke out against Mr Singh’s behaviour he would be able to sack me”. The defendant’s alleged reluctance to speak out because of repercussions is not borne out by his own conduct. In September 2014, unhappy as to the response of the claimant and his ward manager to his request for part-time work, the defendant complained about their response. He initially took the matter to Head Office and then to the deputy Hospital Director. In August 2015 he made a complaint, a part of which is the subject matter of these proceedings. In November 2016 the defendant complained about the conduct of the claimant in unfairly sending him home from the hospital (paragraph 30 above).
Helen Balogun’s evidence was that she was the subject of unpleasant and unprofessional behaviour by the defendant because he alleged that on an occasion four years previously she had unfairly asked him to go home on a night shift (paragraph 45 above). Ms Balogun was a candid and compelling witness. She did not seek to hide the fact that there could be an element of payback in her evidence because she wanted the Court to know what sort of person the defendant is. That said, she spoke convincingly of the need to work as a team which is why she confronted the defendant about his behaviour and thereafter worked with him. Her evidence of the defendant’s behaviour to her and the reason for it resonates with the defendant’s attitude to the claimant and the reasoning behind the allegations now being made.
Particularly pertinent was Ms Balogun’s evidence that in late 2014 or early 2015 the defendant was making claims that his ward manager had allegedly sexually assaulted a female staff member. This was the ward manager who, with the claimant, had allegedly refused to agree to the defendant’s request for part-time work in 2014. The defendant denied making such an allegation. In the investigation which followed the defendant’s complaint of 24 August 2015 the defendant is recorded as telling the investigators (paragraph 81 above):
“He feels that he is being targeted and discriminated against due to the fact that he did not respond to Keith’s advances and also due to the fact he witnessed Anand, Ward Manager, sexually touching another HCA, and because of this both Anand and Keith are working to force him to resign.”
The defendant denied telling the investigators anything relating to Anand, he suggested they might be or were lying.
On a lesser, but not insignificant point, Helen Balogun confirmed that the defendant would tell her he did not have food and she would share food with him. This contradicted the defendant’s evidence that he never asked for food.
The 2015 hospital investigation resulted in the interviewing of witnesses in respect of the alleged confrontation between the defendant and the claimant following the claimant’s refusal to allow the defendant to change shifts in August 2015. Two witnesses, including Travis Wilson, told the investigators that when the defendant approached the claimant following his refusal to agree the covering of the shift it was the defendant who was shouting at the claimant, the claimant did not argue back. The defendant disagreed with the evidence, he said the people who gave evidence did not see the report and it is possible or probable that what is contained in the report is misrecorded. Adeen Ameerally, the nurse in charge of the ward, was also interviewed. Of his evidence the defendant sent an email to the investigators following their report (paragraph 82 above) stating that they had been grossly misled by Mr Ameerally. In court the defendant said that Mr Ameerally was lying in what he said to the investigation. A pattern began to emerge that individuals whose evidence did not support that of the defendant were said by him to be lying or if their evidence was contained in one of the two reports it was said to have been misrecorded.
The claimant’s case is that the allegations of a sexual nature made against him by the defendant are a malicious revenge for what the defendant perceives to be wrongful and/or unfair decisions made by the claimant in refusing to allow him to move to part-time work, moving him to another ward for a shift, refusing to allow him to cover the shift of Travis Wilson, sending the defendant home when he was not required on a shift. It was not the claimant who refused to allow the defendant to move to part-time work in 2014, he did not have that power, the decision was that of management. The claimant’s refusal to allow the defendant to cover the shift of Travis Wilson was upheld by the investigation carried out by the hospital. The decision to move the defendant to another ward was not that of the claimant, he had no good grounds to override the decision taken. Requests to the defendant to work on the Adolescent Unit did not emanate from the claimant, they had been made by the ward manager in conjunction with a rota set out by senior managers. The hospital upheld the claimant’s decision to send the defendant home in November 2016. The defendant’s attribution of blame does not have a sound evidential basis.
Having read and heard the evidence I am satisfied that the claimant is a witness of truth who has given consistent evidence which has been supported, when relevant, by written and oral evidence of witnesses and email documentation. I find that the defendant is not a credible historian. There were inconsistencies in the allegations he made as between his original complaint, his witness statement and his oral evidence. I find that he embellished his evidence in court by introducing new and prejudicial evidence relating to comments made by the claimant. He altered his evidence in court to suit the times and dates of documentation. I do not accept that his failure to complain until August 2015 was because he feared the ramifications. In September 2014, August 2015 and November 2016 the defendant showed himself to be a man who is able to complain about the actions of those senior to himself and does. Further his conduct in making these allegations against the claimant mirrors similar conduct in respect of his ward manager, Anand, in the making of sexual allegations and his unprofessional behaviour towards Helen Balogun. On each occasion he acted because he believed he had not been properly treated by the senior professional. I am satisfied that the defendant’s motivation in making the allegations of a sexual nature against the claimant was revenge for what he perceived to be the unfair treatment of himself by the claimant. Further I am satisfied that in making these allegations the defendant knew them to be false. Not only were they false I find that they were made maliciously in retaliation for what the defendant believed to be the claimant’s decisions affecting his work.
Libel
The defamatory meaning of the words complained of is admitted. Given my findings as to the credibility of the defendant and the sexual allegations made by him his defence of truth fails. Further the statements contained in the original publication were not statements of opinion, they were statements of fact. A complaint to a manager at the hospital would have constituted an occasion of qualified privilege had the statements complained of been believed to be true, they were not. I have found that the statements were made maliciously.
As to serious harm I accept that the hospital is a small and close-knit working environment where gossip is likely. I accept the evidence of the claimant and Helen Balogun that it did take place and has impacted upon the reputation of the claimant. The claimant has worked at the hospital for seventeen years, I accept that prior to these events he was a respected professional, meticulous in his work which he enjoyed. I accept the evidence of the claimant set out in paragraphs 30 to 34 above. These allegations were particularly damaging in the context of this hospital environment, namely a senior practitioner who was responsible for the care of vulnerable patients. I also accept that the evidence of the claimant and his partner speaks to the personal toll which these allegations have had upon the claimant as a private individual in his home and social life and upon his health. The claimant is entitled to be compensated for damage to his reputation, vindication of his good name and to take account of what he genuinely believes to be the hurt and humiliation caused.
Malicious falsehood
I have found that the statements were made maliciously. In terms of pecuniary loss which must be proved by the claimant in respect of this alleged tort I find there are two such losses: the cost of medication (paragraph 33 above) and the loss of salary when the claimant lost the Friday overtime shifts in order to avoid the defendant (paragraph 34 above).
Damages
General and aggravated damages are sought, special damages (pecuniary loss) have been identified above. The claimant said that he brought these proceedings to vindicate his reputation. In early correspondence his solicitors sought from the defendant a withdrawal of the allegations, an apology and payment of the claimant’s costs of £600. The defendant refused the offer. The claimant stated that he is unlikely to recover the sum sought but by reason of the harm done to his reputation and the need for vindication he has brought these proceedings. I accept that the reputation of this senior healthcare professional has been damaged. He is entitled to vindication of that reputation. Harm has clearly been caused, there has been gossip within the hospital, I accept the claimant’s evidence that others now have doubts as to his character. The allegations have also impacted upon his personal life and health. In my view he is entitled to be compensated for these matters and for the distress of having been defamed. My figure for general damages is £15,000. I award a further £5,000 for aggravated damages to reflect the defendant’s persistence in taking this matter to trial on defences he would have known were not true. Special damages (pecuniary loss) are granted in the sum of £30 plus relevant interest and £5,501.10 plus relevant interest.
There will be judgment for the claimant in the sum of £20,000 without interest and £5,531.10 plus interest at a rate of 8% for 51 weeks between issue of proceedings and judgment coming to £433.97, thus the total sum of £25,965.07.
Injunctive relief
An injunction is sought to restrain the defendant from further publishing or causing to be published the words complained of or any other words to the same or similar effect which are false and/or defamatory of the claimant. The defendant has fought this case to the end, there has been nothing in his behaviour which gives this Court confidence that the fact of these proceedings of themselves will be sufficient to restrain the defendant from further publication. In the circumstances the claim for an injunction is made out and will be granted to restrain the defendant from further publishing or causing to be published the words complained of or any other words to the same or any similar effect which are false and/or defamatory of the claimant. The period of the injunction is one of five years.