Barlow v Borough of Broxbourne

Workplace conduct must be assessed cumulatively when deciding whether it amounts to bullying or harassment. Liability also requires reasonable foreseeability of harm and a sufficient connection with employment.

For stress-related psychiatric injury, the threshold question is whether injury to the particular employee, attributable to work stress, was reasonably foreseeable. Employers may generally assume that employees can withstand normal work pressures unless there are clear warning signals or known vulnerabilities. A duty arises only where the indications of impending harm are sufficiently plain, and the employer must take reasonable steps likely to do some good. On the facts, neither bullying nor a foreseeable risk of psychiatric injury was established.

The claimant, a former senior employee of the defendant local authority, claimed damages for psychiatric injury and consequential loss. He alleged that senior officers had bullied and victimised him and, alternatively, had exposed him to work-related stress causing depression.

Liability was tried separately from damages. The central issues were whether the conduct amounted to bullying or victimisation, whether psychiatric harm was reasonably foreseeable, whether the defendant had breached its common-law duty of care, and whether any breach caused the alleged injury.

1. Bullying and victimisation. The relevant inquiry was whether the pleaded conduct occurred and, considered cumulatively, amounted to bullying or harassment in the ordinary sense; whether the officers knew or ought reasonably to have known that it might cause harm; whether reasonable care could have avoided that harm; and whether the conduct was sufficiently connected with employment to impose vicarious liability.
2. The incidents of abusive language were undesirable, but they occurred in the context of managerial frustration with operational failures. The claimant was a relatively senior employee and there were no adequate grounds for characterising the conduct, individually or cumulatively, as bullying or victimisation. The alleged alteration of minutes, exclusion from meetings and taking of staff statements were not victimising conduct. The statements were obtained for a contemplated disciplinary hearing and were legitimate.
3. Even if bullying or victimisation had been established, liability would still have failed because the officers neither knew nor ought reasonably to have foreseen that the conduct would cause psychiatric harm. The claimant appeared phlegmatic and there were no real warning signals.
4. Work-related stress. The court applied the practical propositions stated by Hale LJ in Hatton v Sutherland [2002] 2 All ER 1. The threshold issue was whether depressive illness, rather than ordinary occupational stress, attributable to work stress was reasonably foreseeable in this particular employee. The employer could generally rely on the employee’s presentation and was required to take only reasonable steps likely to do some good.
5. The claimant’s medical symptoms in early 1998 did not put the defendant on notice of psychiatric harm caused by work stress. The wife’s private approach to the personnel department did not establish that the relevant officers knew of such a risk. The later correspondence and disciplinary concerns were not accompanied by overt warning signals, complaints of work-related stress, or evidence of vulnerability. The alleged coordinated plan to remove the claimant was rejected.
6. The defendant therefore neither did nor omitted anything in the relevant period which gave rise to a foreseeable risk of psychiatric injury. It was unnecessary to determine causation. The claim fails.