Johnstone v East Lancashire Hospitals NHS Trust - Stress Revisited - UPDATED
Johnstone v East Lancashire Hospitals NHS Trust - Stress Revisited - UPDATED
On Thursday 22 December 2005 His Honour Judge Armitage QC delivered his reserved judgment in Manchester County Court in the case of Johnstone v East Lacashire Hospitals NHS Trust. The trial had taken place over 8 days between Monday 28 November and Thursday 8 December.
Toby Hooper QC, of 12 King’s Bench Walk, was instructed for the Defendant by Richard Jolly, of Weightmans, Liverpool, on behalf of the NHSLA.
The Judge dismissed the Claimant’s claim on every issue. At a hearing on 22 March 2006 (CPR 52.3(4)) the Court of Appeal dismissed the Claimant’s application for permission to appeal.
This was a claim for damages for personal injury in which the Claimant alleged, in summary, stress at work. The case is important because the Claimant raised every issue currently seen in stress at work claims. Therefore, the judgment provides comprehensive practical guidance on these claims generally.
The Claimant alleged:
(1) Common law negligence.
(2) The statutory tort of harassment under the Prevention from Harassment Act 1997.
(3) Breach of the implied term of trust and confidence in her contract of employment.
The Claimant had been a Staff Nurse in the Endoscopy Department at Blackburn Royal Infirmary. When required by the Court at a CMC – on Weightmans’ application for the Defendant – to clarify and better particularise her claim she alleged 16 incidents as variously comprising her causes of action.
Allegations 1 – 15: Incidents over a period of 18 months involving the Sister in charge of the Unit, each of which the Claimant alleged amounted to harassment under the Act. She did not allege that any of these incidents amounted to negligence or breach of the implied term. She had not mentioned any of these incidents to anyone in authority on behalf of the Defendant until after Allegation 16, and the medical evidence did not prove personal injury until the events of Allegation 16.
Allegation 16: An informal meeting (i.e. not within laid-down procedure) involving the Sister and a senior manager which the Claimant alleged amounted to further harassment under the Act and, as to this allegation alone, to common law negligence and breach of the implied term of trust and confidence.
The Claimant absented herself from work, with medical certification for stress, after the Allegation 16 meeting, and never returned to work. She instituted Grievance proceedings under the Defendant’s laid-down Grievance Procedure in which she raised, for the first time, Allegations 1 – 15, and Allegation 16.
Upon the Defendant, after an internal inquiry, dismissing her Grievance she resigned and claimed Constructive Unfair Dismissal. An Employment Tribunal found in her favour and awarded her some £35,000 compensation. This finding was based, in summary, on the Defendant’s investigation of the Grievance.
As a preliminary issue at trial the Judge dismissed the Claimant’s application to strike out the Defendant’s defence on the ground of issue estoppel arising from the ET Decision. The Defendant was able to satisfy the Judge, by reference to the relevant principles of employment law, that the two cases were very different.
In the present case the Claimant claimed, in effect, loss of earnings for life. She scheduled her claim at some £300,000, inclusive of General Damages and interest.
It was common ground between the parties’ psychiatric medical expert witnesses that the Claimant had suffered personal injury, namely a severe depressive episode, as a result of the Allegation 16 meeting.
The Judge held:
(1) None of Allegations 1 – 15 amounted to harassment under the Act. The Judge directed himself that harassment under the Act requires proof of serious, oppressive, unreasonable and targeted conduct which a reasonable person would believe was calculated to cause at least alarm or distress.
Some of the allegations were on any view trivial, while some were on their face more serious, including alleged outbursts of temper and victimisation.
(2) Because he found as in (1), the Judge did not find it necessary to consider the Defendant’s further argument that forseeability of personal injury is a necessary ingredient in the cause of action under the Act, at least in so far as the claim is that personal injury occurred.
(3) Because, further, he found as in (1), the Judge did not find it necessary to apply the definition of conduct in Section 7(3) of the Act, that it “must involve conduct on at least two occasions”, or whether any two alleged occasions amounted to a “course of conduct” within that definition.
[The Defendant reserved its position to argue that the Court of Appeal in Majrowski v Guy’s and St Thomas’ Hospitals NHS Trust [2005] EWCA Civ 251 wrongly decided that an employer can be vicariously liable for the statutory tort of harassment under the Act. Majrowski is before the House of Lords on 10 and 11 May 2006].
(4) Although the Claimant became visibly distressed in the course of the Allegation 16 meeting:
(a) The Defendant was not in breach of its common law duty of care in holding the meeting or in continuing with it after she became distressed.
(b) No personal injury was foreseeable at any time during the meeting.
(5) Nothing in the Grievance investigation amounted to breach of the common law duty of care. In any event, on the medical evidence the Claimant suffered no further injury during it.
(6) Although the law recognises an implied term of trust and confidence in a contract of employment, it is necessary to identify its precise ambit alleged in any particular case before deciding whether it has been breached. In the present case the ambit alleged was no different from the common law duty of care for the health and safety of an employee, so no actionable term fell to be implied.
(7) Because he found as he did in (6), the Judge did not find it necessary to consider the Defendant’s fallback argument, on breach of the implied term, that forseeability of personal injury is a necessary ingredient in the cause of action on the implied term, just as it is in the cause of action on the common law duty of care.
Practical guidance to be derived from the case:
• The importance of the greatest achievable particularity of Claimants’ factual allegations. Weightmans achieved this here.
• The importance of careful analysis of the medical evidence to identify exact mechanisms of causation, and exact timings of causation.
• The importance of careful analysis of each cause of action alleged. Does any alleged cause of action amount to mere duplication? Does any alleged cause of action require no lesser proof than the common law duty of care, the restrictions of which in stress cases the Court of Appeal has identified in Hatton v Sutherland [2002] EWCA Civ 76 and Hartman v South Essex [2005 EWCA Civ 6?
• It is not easy for Defendants to avoid full trials in these cases. Here, the Judge refused the Defendant’s application, as a preliminary issue at the trial, to strike out the Claimant’s claim as having no real prospect of success. He decided, in effect, that the case might be sufficiently fact-sensitive to require full evidence.
• The importance, in anticipation of full trial, of meticulous preparation of evidence, as Weightmans did here, to address every detail of Claimants’ factual allegations. Careful preparation, and trial itself, are time-consuming and potentially disruptive of a client’s operation, but there is quite simply no substitute.
• In some cases Employment Tribunal claims and Civil Court claims arising from the same background of alleged stress at work may prove, on careful analysis, to be sufficiently distinguishable that one does not bind the other. In other cases the opposite may be the case. The contrast between the two jurisdictions is complex, and not generally well understood. Suitable specialist legal advice addressing both the employment law issues and the personal injuries law issues should be taken as early as possible in the germination of such a dispute.
TOBY HOOPER QC
hooper@12kbw.co.uk
January 2006