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Deadman v Bristol City Council, Court of Appeal, 31 July 2007

3 September 2007
The issues

Stress at work; psychiatric injury; breach of contract; employerís duty in the context of complaint of sexual harassment against Claimant; edged failure to investigate complaint properly; apportionment.

The facts

The Claimant was employed by Bristol City Council for over 30 years and, most recently, as manager of its mechanical and electrical services team. He was the subject of a complaint of sexual harassment by a female employee from another department. A formal investigation was instigated under the Councilís procedures for dealing with allegations of harassment.

The investigation was flawed. The panel which should have considered the complaint comprised of only 2 rather than 3 members, one of whom was the Claimantís immediate line manager, Mr Knight. The panel found against the Claimant who challenged the decision before a Staff Joint Consultative Committee, in accordance with the Councilís grievance procedure. The decision was set aside. A fresh investigation was instigated. A new panel was convened. That decision was communicated to the Claimant by letter dated 6th May 1998 which was left on his desk for him to find when he came into work next. The Claimant consulted his doctor on two occasions complaining of stress and was prescribed medication. He was off work for most, if not all, of the period between 6th and 13th May when he ceased work permanently as a result of depression. The Judge found that the Council was not in breach of its duty of care at common law but that the manner in which the investigation had been conducted and the manner in which the Claimant had been informed of the renewal of the investigation had involved breaches of his contract of employment and that those breaches were the cause of his illness. He was awarded damages.

The Defendant appealed.

The decision

Where an employer had published and implemented formal procedures providing for the manner in which complaints were to be investigated it would usually become a term of the contract of employment that those procedures would be followed unless and until withdrawn by agreement.

It was not a term of the Claimantís contract of employment that the Council would investigate complaints of harassment sensitively, but it was a term of his contract that it would follow its published procedure in the investigation of any complaints of harassment made against him. There was no separate contractual obligation to act sensitively; there was merely an obligation on the Council not to undermine its relationship of mutual trust and confidence and a duty to take reasonable care to avoid causing him foreseeable harm. In Hatton v Sutherland the Court of Appeal had raised the threshold question of ‘whether this kind of harm was reasonably foreseeable to this particular employee.î In this context it was necessary to bear in mind that to all appearances the Claimant was a person of robust good health. He had worked for the Council for over 30 years and had an excellent attendance record. There was nothing in the Judgeís finding to suggest that the Council should have been aware that it was liable to be severely adversely affected by the ordinary operation of its procedure for investigating complaints of harassment.

The convening of a panel of 2 rather than 3 members was undoubtedly an error, but it had not been suggested that it was reasonably foreseeable that a mistake of that kind might have adverse consequences to the Claimantís health and the Judge made no finding to that effect.

The Claimant had argued that, in light of the fact that the Judge had accepted the Claimantís evidence that he had felt devastated, unsupported and humiliated in the face of the investigation, but had considered that his reaction was nothing more than normal under the circumstances, that the Judge ought also to have found that it was negligent of the Council to break the news of the fresh investigation to the Claimant by leaving a bald letter on his desk because, in the light of what had gone before, it was foreseeable that, if the matter were not handled carefully, he might suffer some sign of harm as a result. That submission depended not on the content of the letter but on the manner of its transmission. The letter itself was not insensitive but merely stated the position in neutral terms. The difficulty for the Claimant was that the Judge had not found that the Council was or should have been aware that he had been so badly effected by events leading up to the Hearing in May and by the Hearing itself that merely informing him that the investigation would be renewed might cause him psychiatric harm.

The Judge had found that the Council was in breach of contract by convening a panel or 2 rather than 3 members to carry out the original investigation. The Judge had been right to so find. There was no ground however for believing that the Council would have thought it at all likely that psychiatric harm would have followed. Any damage flowing from the Councilís breach of contract in this respect was too remote in law to be recoverable.

Appeal had also been brought on the question of causation. The psychiatrists instructed by the parties had not given evidence, though they had each prepared a report and provided joint answers to questions submitted to them by the parties. They had not expressed any opinion about whether his illness had been brought about by the first event and aggravated by the second, nor had they been asked to do so. Neither had they been asked to consider the extent to which each incident contributed to the final outcome. Their failure to do so reflected the fact that the Council had not raised the issue in its Defence. In those circumstances the Judge could not be criticised for failing to deal with it and it would be wrong to allow the Council to raise it on appeal. A Defendant which sought to raise an issue as to causation and the attribution of damage to different causes should do so in its Defence so that both parties were able to put before the Court the necessary evidence to resolve the question.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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