A flawed approach?

Puzzle pieces

Viewing only pieces?

The case of King v Medical Services International Ltd [2012] All ER (D) 27 (Apr) (not yet on Bailii) is a good example of how difficult it is for claimants to jump all the hurdles which exist in psychiatric injury cases; and of how a course of conduct is still being viewed on an incident by incident basis and not as a whole.

The claimant was an executive manager in the defendant’s hospital. She had no previous psychiatric history but in August 2006, suffered a mental breakdown which she ascribed to harassment and bullying at work by one of her colleagues.

She described a pattern of behaviour supported by some 45 incidents over about 3½ years which amounted to ‘over-familiarity, innuendo and inappropriate physical conduct; use of intemperate and aggressive language; personal and professional humiliation; disrespectful, intimidating, pedantic and undermining behaviour; veiled threats and blackmail.’

Her claim was both for harassment under the Protection from Harassment Act 1997 (PHA) and for ‘normal’, common law personal injury but her claim failed on all counts. The conduct was held not to amount to harassment, her illness was found not to have been reasonably foreseeable and, in any case, not to have been caused by the conduct.

The lengthy judgment (it runs to 294 paragraphs) is an object lesson in how what a Claimant describes as a campaign of bullying and harassment can be made to appear very ordinary when de-constructed. And an exercise in de-construction is precisely what was undertaken.

The Judge found that looking at the individual incidents, two were undermining, one approached harassment and a third was bullying or tantamount to bullying. On many occasions, the colleague had behaved inconsiderately, even very inconsiderately, but only on those four occasions had he overstepped the mark. However, looking at the incidents overall, it could not fairly be said that he had been harassing, bullying or undermining the claimant nor that his conduct could objectively be judged as such.

This approach arguably betrays an ongoing failure to approach harassment claims in the right way. No matter how many times a Court is reminded of the need to take the course of conduct as a whole (and to remember that incidents which appear trivial in isolation, their impact needs to be measured in the context of what has gone before), focus is inevitably directed to individual incidents.

This was very much the approach taken here. The Judge made specific findings about individual incidents and found that only some ‘approached’ or could be harassment. Only after seemingly dismissing other incidents is an attempt made to assess the entirety of the course of conduct as a whole.

Declaring individual incidents to be harassment or not is flawed as it is the whole course of conduct which is the issue and not its individual parts. What is especially troubling is that a finding that many incidents are or cannot be harassment inevitably suggests that there has been a failure to consider the cumulative effect of every incident when assessing the totality of the course of conduct.

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