Andrew Woodhead v WTTV Limited & Anor

The misuse of private information tort requires a reasonable expectation of privacy, followed by an assessment of whether disclosure pursued a legitimate objective in a proportionate way. A complaint made under a workplace harassment policy may justify disclosure and subsequent investigative use of private information where the complaint is sufficiently connected with the employment relationship.

An employer’s duty to take reasonable care to prevent psychiatric injury from workplace stress arises when the risk becomes reasonably foreseeable. The employer must take reasonable steps proportionate to the risk, but a procedural imperfection does not itself establish breach. Breach and causation must be assessed separately. A failure to communicate that disciplinary allegations have been narrowed may materially contribute to an indivisible psychiatric injury.

Andrew Woodhead, a managing director employed by WTTV Limited, brought claims for misuse of private information, negligence and breach of the implied term of trust and confidence. The claims arose from WTTV’s handling of sexual-harassment complaints made by a freelance writer, including the investigation and disciplinary process following the complaints.

The court held that the disclosure and use of Mr Woodhead’s private information were justified. The contractual claim added nothing to the negligence claim. The negligence issues were whether psychiatric injury was reasonably foreseeable, whether WTTV breached its duty of care in conducting the process, and whether any breach caused or materially contributed to the injury.

1. Misuse of private information. The information disclosed by NPQ was private and Mr Woodhead had a reasonable expectation that it would remain confidential. Applying the principles in Campbell v MGN Limited, disclosure was nevertheless justified. NPQ made the disclosure for the legitimate and specific purpose of invoking WTTV’s workplace-respect policy. The policy covered complaints by freelancers against employees, and the complaint was sufficiently connected with WTTV’s business. WTTV’s use of the information to investigate and pursue the complaint was also proportionate and justified. The privacy and confidentiality claim was therefore dismissed.
2. Vicarious liability. Although unnecessary to the result, the court would have rejected vicarious liability because NPQ was genuine freelance worker and was not in an employment or quasi-employment relationship with WTTV. The claim would therefore have failed at the first stage of the two-stage test summarised in BXB v Barry Congregation of Jehovah’s Witnesses.
3. Duty of care. Applying Hatton v Sutherland and Yapp v Foreign and Commonwealth Office, the employer’s duty arose when WTTV knew, or ought reasonably to have known, of a foreseeable risk of psychiatric injury. That point was 4 December 2019, when medical evidence clearly showed that the disciplinary process had adversely affected Mr Woodhead’s mental health and that further stress required caution.
4. WTTV did not breach its duty by failing to suspend the process before 11 December, by failing to undertake a formal risk assessment where relevant medical evidence was available, or by the later decision-making process. It did breach its duty by failing to tell Mr Woodhead that some allegations had been abandoned, by requiring him in February 2020 to respond within seven days as to how he would participate, and by insisting in April 2020 on an occupational-health assessment by video call.
5. The February and April breaches did not materially contribute to the psychiatric injury. The continuing failure to explain that the scope of the disciplinary process had narrowed did materially contribute to the injury because it reinforced the perception that Mr Woodhead had not been heard or understood. The injury was indivisible, so damages were not apportioned. The negligence claim succeeded to that extent; quantum remained outstanding and directions were to be agreed.