Tag Archives: cumulative effect

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.’ Continue reading

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Driskel v Peninsula Business Services Ltd EAT/1120/98

Picture of water drop

The drip effect is critical

This is a useful authority as it records and affirms the correct approach to claims involving a series of incidents, something of crucial importance when dealing with a course of conduct of harassment.

The most telling references are from Reed and Bull Information Systems Ltd v Stedman (1999) 1RCR 299:

“It is particularly important in cases of alleged sexual harassment that the fact finding tribunal should not carve up the case into a series of specific incidents and try (to) measure the harm or detriment in relation to each.”

And an unidentified decision of a U.S. Federal Appeal Court, which stressed:

“….. the trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate and that the work environment may exceed the sum of the individual episodes.”

Therefore, here the EAT concluded that the correct approach should be:

“The Tribunal hears the evidence and finds the facts. As has already been pointed out it is desirable not to include in this exercise judgments as to the discriminatory significance, if any, of individual incidents – judgment thus far should be limited to the finding of all facts that are prima facie relevant. If ad hoc assessments ‘discrimination or no’ are made the result is a fragmented and discursive judgment; more importantly, there is the potential noted in Reed and Bull for ignoring the impact of totality of successive incidents, individually trivial.”

 Driskel v Peninsula Business Services Ltd EAT/1120/98

 

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Iqbal v Dean Manson [2011] EWCA Civ 123

A critical case especially where there is a history of seemingly trivial incidents. In finding that sending 3 letters was capable of amounting to harassment, it stresses the importance of looking at the totality of the course of conduct and not at individual events.

Rather than summarise badly, the best thing is to quote directly:

“In my judgment, the Act is concerned with courses of conduct which amount to harassment, rather than with individual instances of harassment. Of course, it is the individual instances which will make up the course of conduct, but it still remains the position that it is the course of conduct which has to have the quality of amounting to harassment, rather than individual instances of conduct. That is so both as a matter of the language of the statute, and as a matter of common sense. The Act is written in terms of a course of conduct: see sections 1(1), 1(2), 1(3), 2(1), 3(1), 7(3). That course of conduct has to amount to harassment, both objectively and in terms of the required mens rea (see section 1(1)(b)). In the case of a single person victim, there have to be “at least two occasions in relation to that person” (section 7(3)(a)), but it is not said that that those two occasions must individually, ie standing each by itself, amount to harassment. The reason why the statute is drafted in this way is not hard to understand. Take the typical case of stalking, or of malicious phone calls. When a defendant, D, walks past a claimant C’s door, or calls C’s telephone but puts the phone down without speaking, the single act by itself is neutral, or may be. But if that act is repeated on a number of occasions, the course of conduct may well amount to harassment. That conclusion can only be arrived at by looking at the individual acts complained of as a whole. The course of conduct cannot be reduced to or deconstructed into the individual acts, taken solely one by one. So it is with a course of communications such as letters. A first letter, by itself, may appear innocent and may even cause no alarm, or at most a slight unease. However, in the light of subsequent letters, that first letter may be seen as part of a campaign of harassment.”

I wish that one day I might be able to express things so well.

Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123

 

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