Clyde & Co successfully defends occupational harassment claim against veterinary practice

Clyde & Co has successfully defended a claim for alleged workplace stress/occupational harassment brought by a veterinary surgeon against her employer. The claimant alleged that the conduct of her employer had materially contributed to her depressive illness.

Theresa McCann v Davies Veterinary Specialists Limited

Dismissing the claim, Her Honour Judge Baucher found that our client “had acted throughout in an entirely appropriate, supportive and sympathetic way”. The Court was critical of the allegations made under the Protection from Harassment Act 1997, agreeing with our submissions that none of the alleged matters were sufficient to advance that cause of action. This had led to “honest decent colleagues being characterised as ‘malicious’ and as ‘bullies’, when this was wholly unjustified”.

 

Background

The claimant, a veterinary surgeon, alleged that her employer, a specialist veterinary practice (“the Defendant”) was negligent to the risk of harm to her arising from her employment. The claimant also alleged she had been subject to harassment within the meaning of the Protection from Harassment Act 1997 (“PHA”) resulting from various incidents during the course of her employment.

The Defendant denied that any action taken gave rise to a risk that the claimant would sustain injury or that those actions constituted harassment under the PHA. By the time of trial, the claim was valued at six figures.

 

Trial

Various individuals were cross-examined on the allegations and issues including the claimant, former and current directors, and employees of the Defendant.

Protection from Harassment Act claim

The Court considered the ambit of the statutory tort in terms of what constitutes ‘harassment’ under the PHA. Considering the leading decisions in Majrowski and Conn, the Court highlighted “distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable… which the perpetrator [or a reasonable person] knows or ought to know amounts to harassment”. Using those principles, HHJ Baucher considered each of the allegations:

• In respect of alleged pressure to return to full-time working, the Court held that the Defendant was “not some cold-hearted employer” and “had to balance the needs of the practice, other colleagues and the health of the claimant”.
• Regarding a heated exchange of views with another veterinarian at the practice, HHJ Baucher found that the “exchange was no more than is common in any professional workplace”. The exchange, whilst ‘unattractive’, was not considered to be ‘oppressive and unacceptable’.
• An alleged refusal to allow the claimant to undertake CPD lecturing was not oppressive or unacceptable under the PHA. The information provided by the claimant about the impact that previous lecturing had on her, meant that “any reasonable employer would have written to the claimant, for her own protection, to ensure that she did not provide any CPD”.
• Proposed changes to her working pattern and the manner in which these were addressed were insufficient to maintain a cause of action under the PHA.

Limitation and negligence

The claimant accepted that some of her causes of action in negligence were statute-barred, and sought a disapplication of the Limitation Act pursuant to section 33 of that Act.

Counsel for the Defendant submitted that the claim under the PHA and the narrative of bullying and harassment was a misguided effort to avoid those limitation issues as the PHA allows a more generous limitation period of 6 years. HHJ Baucher concurred, referring to the words of Lord Justice Ward in Conn, that “what on earth is the world coming to if conduct of the kind that occurred…. can be thought to be an act of harassment...”

Nonetheless, in considering the potential exercise of her discretion under s33, HHJ Baucher highlighted the summary of the principles in Ellis v Heart of England. The Court found there was “no evidence from the claimant as to the reason for the delay”, and that “the claimant simply thought the negligence claim could be subsumed within the PHA and in effect the court would ignore it”. The claimant, however, argued that much documentation had been retained, the Defendant’s witnesses had a good memory and therefore a fair trial was possible with the Defendant suffering no prejudice as a result of the admitted, short, delay. Concluding her comments, and refusing to exercise the discretion available to her, HHJ Baucher found “the claimant has a very thin case [in negligence]… there is no case for the defendant to answer [in relation to the time-barred allegations]”.

In respect of those outstanding allegations in negligence not affected by limitation, the Court considered the principles in Hatton v Sutherland, Barber v Somerset and Stokes v Guest. In summary, “the overall test is still the conduct of the reasonable and prudent employer… [if they are] found to have fallen below the standard”, then they may be found to be negligent.

The request for proof of payment from the claimant for an expenses claim was consistent with the “duty of the employer to take reasonable care”, as it was “a perfectly legitimate request”.

Regarding the refusal to allow the claimant to attend external events, the Defendant’s response showed “an employer whose priority is the welfare of their employee” and to act in their best interests, despite the claimant’s own desires.

 

Judgment

Both claims in negligence and for breaching the PHA failed based on the above. HHJ Baucher found “no failings on [the Defendant’s] part”.

Furthermore, in respect of the medical evidence, HHJ Baucher found that even where “there was any valid cause of action I consider the medical evidence presented a fundamental difficulty for the claimant”.

 

What we can learn

• Claims of this nature are increasing with a rise in claims brought by younger professionals. They are often valuable, complex and expensive to investigate. Despite temptations to settle such claims for economic reasons, insurers are better served by assessing each case on its own merits to avoid encouraging meritless claims. By fully investigating claims it is possible to separate the wheat from the chaff and where a claimant cannot be persuaded to discontinue, the matter may have to proceed to trial.
• In this case the claimant made a concerted effort to circumvent the limitation defences available to the Defendant in respect of the common law allegations of negligence by alleging harassment under the PHA which has a longer six year limitation period. However, where a claimant produces no meaningful evidence of harassment within the ambit of the PHA, then defendants may consider arguing the claim represents an abuse of process. Indeed, HHJ Baucher stated that “it is unfortunate that the claimant chose to frame her claim under the PHA. If that cause of action had not been pursued the defendant may well have applied to strike out certain elements of the case…”
• Another issue highlighted in this case is the importance of the stated value of the claim on the Claim Form. If the value of the claim has increased during the course of litigation then the claimant should pay the enhanced fee as failure to do so is an abuse. In this instance, the valuation of the claim had increased significantly from that stated on the Claim Form and the claimant had not paid the appropriate issue fee. Referring to Lewis v Ward Hadaway, the Court notified the claimant that "the payment of the correct court issue fee is not dependent on outcome… inappropriate payment of a court issue fee and the continuance of the action is an abuse".