King v Medical Services International Ltd

Harassment requires more than conduct which causes distress. The conduct must be targeted, objectively calculated to cause alarm or distress, and objectively oppressive and unreasonable. Context is important, including the parties’ roles and the conduct’s cumulative effect.

For negligence causing psychiatric illness through workplace stress or bullying, the claimant must establish that illness, rather than mere stress, was reasonably foreseeable. The employer must have known or ought to have known of vulnerability or clear signs of impending harm to health, and the breach must have caused or materially contributed to the illness.

The claimant, a senior hospital executive, claimed damages for psychiatric injury allegedly caused by workplace bullying and harassment by the defendant’s chief executive, for which the defendant was said to be vicariously liable.

The claims relied on the Protection from Harassment Act 1997, negligence, breach of contract and the Management of Health and Safety at Work Regulations 1999. The defendant denied that the conduct amounted to harassment, denied foreseeability and causation, and relied on alternative personal, family and occupational causes.

The central issues were whether the conduct constituted harassment or bullying, whether psychiatric illness was reasonably foreseeable, whether the defendant breached its statutory or common-law duties, and whether the conduct caused the claimant’s illness.

1. Harassment. The court applied the principles in Thomas v NewsGroup Newspapers Ltd [2002] EMLR 78, Majrowski v Guy’s and St Thomas’ NHS Trust [2005] QB 848 and Veakins v Kier Islington Ltd [2009] EWCA Civ 1288. Harassment requires conduct on at least two occasions which is targeted, objectively calculated to cause alarm or distress, and objectively oppressive and unreasonable. Distress alone is insufficient. Context and the cumulative effect of the conduct must be considered.
2. Four incidents were identified as involving undermining, approaching harassment, or bullying or conduct tantamount to bullying. Viewed individually and cumulatively, they did not amount to a course of conduct constituting harassment. The claim under section 3 of the Protection from Harassment Act 1997 therefore failed.
3. Negligence. Following Hatton v Sutherland [2002] 2 AER 1, as approved in Barber v Somerset [2004] ICR 457, the relevant threshold was whether psychiatric illness to this employee, attributable to workplace stress, was reasonably foreseeable. The claimant had to show knowledge of vulnerability or clear signs of impending harm to health. Mere workplace stress was not enough.
4. The evidence did not show that anyone foresaw psychiatric illness, or that the defendant knew or ought to have known of the claimant’s vulnerability or impending harm. The negligence claim therefore failed on foreseeability.
5. The claim also failed on causation. The claimant’s depressive disorder had complex causes, including significant marital difficulties, physical health problems, concern for her autistic son and substantial work pressures. The conduct relied on was not found to have caused or materially contributed to the illness.
6. The claim under regulation 3 of the Management of Health and Safety at Work Regulations 1999 failed. There was evidence of a risk assessment, and no sufficient evidence that the assessment was absent or deficient.
7. Contributory negligence was not established. Although the claimant could reasonably have sought medical advice or raised a grievance, the defendant did not prove that those omissions caused or contributed to the injury.
8. The claim was dismissed. It was unnecessary to assess damages, although the court made limited observations concerning possible alternative causes and future employment.