Factual and Procedural Background
The Defendant is a commercial bank operating in the City of London. The Plaintiff, born in 1970, was employed by the Defendant as a Company Secretary Assistant starting in October 1997. In November 2000, the Plaintiff was admitted to hospital with a diagnosis of major depressive disorder. She returned to work part-time in March 2001 but suffered a relapse in October 2001 and ceased work thereafter. Her employment was terminated in September 2003. Shortly after termination, the Plaintiff issued proceedings claiming damages for personal injury and consequential loss, alleging that her psychiatric injury resulted from bullying and harassment by fellow employees for whom the Defendant is vicariously liable, as well as management failures. The claim involves complex factual and medical issues.
Legal Issues Presented
- Whether the Defendant breached its duty of care to the Plaintiff by failing to protect her from foreseeable psychiatric injury caused by bullying and harassment.
- Whether the Defendant is vicariously liable for the bullying and harassment perpetrated by its employees.
- Whether the Defendant breached the Plaintiff’s contract of employment by failing to ensure her safety.
- Whether the Plaintiff’s claim under the Protection from Harassment Act 1997 is established.
- Issues of causation and foreseeability relating to the psychiatric injury suffered by the Plaintiff.
Arguments of the Parties
Plaintiff's Arguments
- The Defendant breached its duty of care by failing to protect the Plaintiff from bullying and harassment by fellow employees, which caused her psychiatric injury.
- The Defendant is vicariously liable for the tortious conduct of its employees.
- The Defendant failed to take adequate steps to prevent or address the bullying and harassment despite knowledge of the Plaintiff’s vulnerability and complaints.
- The bullying and harassment amounted to conduct actionable under the Protection from Harassment Act 1997.
- The cumulative effect of the conduct caused two major depressive episodes and ongoing psychiatric vulnerability.
Defendant's Arguments
- The Defendant accepted a duty of care but disputed that it was in breach.
- The Defendant disputed vicarious liability for the conduct of certain employees, arguing their behaviour was unrelated to work and merely opportunistic.
- The Defendant denied that the bullying and harassment were sufficiently serious or frequent to give rise to liability.
- The Defendant contended that the Plaintiff’s perception of exclusion was influenced by her pre-existing psychiatric vulnerability.
- The Defendant did not accept that the conduct of the managers or HR department constituted a breach of duty.
- The Defendant argued that some conduct, including a single incident by a third party, was not actionable in tort.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Sutherland v Hatton [2001] EWCA Civ 76 |
Guidance on employer’s duty of care regarding psychiatric injury, foreseeability, causation, and damages in work-related stress cases. |
The Court applied the threshold of foreseeability of psychiatric injury and considered the employer’s knowledge of the employee’s vulnerability. |
| Garrett v London Borough of Camden [2001] EWCA Civ 395 |
Foreseeability of psychiatric injury due to harassment requires a real risk which the employer ought reasonably to have foreseen and averted. |
The Court emphasized the necessity of a real risk of breakdown for liability to arise; applied to assess Defendant’s foreseeability. |
| Barlow v Borough of Broxbourne [2003] EWHC 50 (QB) |
Elements to establish negligence liability for bullying and harassment by employees, including proof of conduct, knowledge, reasonable care, and vicarious liability. |
The Court adopted the four-part test to assess the Defendant’s liability for bullying and harassment in this case. |
| Majrowski v Guy's & St Thomas' NHS Trust [2005] QB 848 |
Employers can be vicariously liable under the Protection from Harassment Act 1997 for harassment by employees. |
The Court confirmed vicarious liability under the Act; applied to hold Defendant liable for employee harassment. |
| Thomas v News Group Newspapers Ltd [2002] EMLR 78 |
Definition of harassment as conduct calculated to cause distress, oppressive and unreasonable, known or ought to be known by the perpetrator. |
The Court applied the objective test for harassment to the conduct alleged in this case. |
| Bernard v Attorney General of Jamaica [2005] IRLR 398 |
Test for vicarious liability focusing on the closeness of connection between employment and tortious act, and whether it is just and reasonable to hold employer liable. |
The Court applied the closeness of connection test and found Defendant liable for employee conduct closely connected to employment. |
| Lister v Helsey Hall [2001] UKHL 22 |
Scope of employment for vicarious liability excludes acts of passion or spite; requires a greater connection than mere opportunity. |
The Court considered whether employee bullying was within the scope of employment and found a sufficient connection here. |
Court's Reasoning and Analysis
The Court began by outlining the legal framework, focusing on the employer’s duty of care to protect employees from foreseeable psychiatric injury, as established in Sutherland v Hatton and Garrett v Camden. It emphasized the importance of foreseeability and the employer’s knowledge of the employee’s individual vulnerabilities.
The Court applied the four-part test from Barlow v Broxbourne to assess whether the bullying and harassment gave rise to negligence: whether the conduct occurred and amounted to bullying or harassment; whether the perpetrators knew or ought to have known their conduct might cause harm; whether reasonable care could have prevented the harm; and whether the Defendant was vicariously liable.
Regarding the Protection from Harassment Act 1997, the Court considered the statutory definitions and the requirements for conduct to amount to harassment, including frequency, targeting, objective calculation to cause distress, and oppressiveness, drawing on Majrowski and Thomas.
The Court found that the Plaintiff was subjected to a sustained campaign of bullying and harassment by four women colleagues and later by a male colleague, Mr Preston. The conduct was oppressive, unreasonable, and calculated to cause distress, satisfying the statutory and common law definitions of harassment and bullying.
The Defendant was held vicariously liable for the conduct of the employees, as the bullying was closely connected to their employment and affected the working environment. The Court rejected the Defendant’s argument that the conduct was unrelated to work and merely opportunistic.
The Court found that the Defendant’s management and HR department failed to take adequate steps to prevent or address the bullying, despite being aware of the problem. This failure constituted a breach of the Defendant’s duty of care.
On causation, the Court accepted expert evidence that the bullying and harassment materially contributed to the Plaintiff’s psychiatric injury, including two major depressive episodes. The Court found the bullying during the early employment period and the conduct of Mr Preston were material causes of the first breakdown, and that the psychiatric vulnerability resulting from the first breakdown materially contributed to the second.
The Court concluded that the Defendant did not breach its duty in managing the Plaintiff’s return to work after the first breakdown, and that the second breakdown triggered by an email was not a breach of duty.
In assessing damages, the Court considered the Plaintiff’s pre-existing psychiatric vulnerability but found that the episodes of major depressive disorder were caused by abnormal workplace stressors. It awarded damages at the lower end of the severe psychiatric injury scale, considering the impact on the Plaintiff’s career and future employment prospects, including her decision to pursue an academic career.
Holding and Implications
The Court held in favour of the Plaintiff, finding that the Defendant was liable for the bullying and harassment suffered by the Plaintiff and the consequent psychiatric injury.
The Defendant was held vicariously liable for the conduct of its employees and in breach of its duty of care in failing to take reasonable steps to prevent or address the bullying. The Plaintiff was awarded damages for psychiatric injury, loss of earnings, and future losses including retraining costs.
The decision affirms the application of established legal principles on employer liability for psychiatric injury caused by bullying and harassment, including the importance of foreseeability, vicarious liability under the Protection from Harassment Act 1997, and the requirement for employers to take reasonable care in managing workplace conduct. No new precedent was set beyond the application of these principles to the facts of the case.