Boylin v The Christie NHS Foundation

Liability under the Protection from Harassment Act 1997 requires conduct which is sufficiently serious to be oppressive and unacceptable, together with a course of conduct involving at least two occasions. A single serious workplace incident may cross the statutory threshold but cannot itself satisfy the requirement for a course of conduct.

In a work-related stress claim, the employer’s duty depends on whether psychiatric injury to the particular employee was reasonably foreseeable. The employee must also prove that the breach caused or materially contributed to the injury. Legitimate management decisions and ordinary workplace pressures do not become breaches merely because an employee reacts adversely to them.

The claimant was a senior human-resources manager employed by the defendant NHS foundation trust. The trust commissioned an executive review, appointed an external consultant as interim HR director and placed the claimant under her line management. The claimant alleged that the consultant had bullied and harassed her during September to November 2010, causing psychiatric injury.

She brought claims under the Protection from Harassment Act 1997 and in common-law negligence. The court had to determine whether the alleged conduct amounted to harassment, whether the trust was in breach of its duty regarding work-related stress, and whether any breach caused or materially contributed to the claimant’s illness.

1. Harassment. The court applied the threshold described in Majrowski v St Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 and Veakins v Kier Islington Ltd [2007] EWCA Civ 1492. Conduct must be oppressive and unacceptable, rather than merely unattractive, unreasonable or regrettable. The incident on 10 November 2010, when the consultant swore at and threatened the claimant, crossed that threshold.
2. Nevertheless, section 7(3) required a course of conduct involving conduct on at least two occasions. The earlier meetings and conversations were difficult, but they did not amount to bullying, harassment or conduct crossing the statutory threshold. The statutory claim therefore failed.
3. Common-law negligence. Applying the principles in Sutherland v Hatton [2002] EWCA Civ 76 and Barber v Somerset County Council [2004] UKHL 13, the relevant question was whether injury to the particular employee was reasonably foreseeable from what the employer knew or ought reasonably to have known. The indications of impending harm had to be sufficiently clear for a reasonable employer to appreciate that remedial action was appropriate. The claimant also had to prove causation.
4. The trust’s decision to conduct an executive review, appoint an external consultant and restructure the HR function was a legitimate management process. Apart from the isolated outburst on 10 November, the consultant’s conduct was professional and acceptable. The outburst was a breach of duty, but it was momentary, followed by an immediate response from the trust, and did not cause or materially contribute to the claimant’s continuing psychiatric condition.
5. Even if the incident had caused the illness, such a result was not reasonably foreseeable in the circumstances. The claim was dismissed.