Stress test

The High Court recently rejected a claim against a local authority in which the claimant argued that the his occupational stress was caused by the council's defective disciplinary process. Rebecca Grant and Andrew Warnock explain the ruling.

In Dermott v London Borough Harrow [2011] EWHC 51 (QB) the claimant, Mr Dermott, had been employed by Harrow Council, the defendant, as a planning officer since 1988. He was in a senior position and his role was generally very demanding. He had had a medical history of stress and had been prescribed anti-depressants in the past by his GP, but had never taken any time off work.

One day in September 2004, a female administrative support officer invoked Harrow’s grievance procedure stating that she had been subject to “constant harassment, intimidation and other types of abuse” by Mr Dermott. She later provided a statement alleging that Mr Dermott had invaded her personal space, was constantly staring at her in a sexual manner, attempted to humiliate her publically and on one occasion touched her inappropriately.

Harrow then suspended Mr Dermott in November 2004 and commenced a two-step investigatory process in which numerous witnesses were interviewed, including Mr Dermott. Upon further comments from other members of staff, Mr Dermott’s original disciplinary ‘charge’ was added to so that it included inappropriate behaviour with other female members of staff also.

There followed three disciplinary hearings at which a panel of three members eventually found allegations of inappropriate behaviour substantiated, though not those of a sexual or physical nature.

Mr Dermott appealed the decision. The appeal panel, consisting of three local councillors, was changed during the process. The appeal was eventually heard some three years after the disciplinary progress had begun. In the meantime Mr Dermott never returned to work after his suspension and took ill health retirement in September 2008.

Mr Dermott brought a common law action against Harrow based on breach of contract and negligence alleging that he suffered psychological injuries as a result of Harrow’s failure to conduct the disciplinary process fairly, promptly and in accordance with its own policies and procedures. A very large number of individual breaches were alleged, including not adequately informing Mr Dermott of charges against him, inappropriately interviewing witnesses, admitting inadmissible evidence at the disciplinary hearing, changing the disciplinary panel and not informing Mr Dermott of the true reason for the changing in the appeal panel.

The claim failed for two main reasons. Firstly, until September 2005 when Mr Dermott provided a medical certificate declaring him unfit for work due to “stress symptoms”, there was no indication to Harrow that Mr Dermott was at risk of suffering “impending harm” to his psychological health as required to make out his claim by way of cases such as Hatton v Sutherland [2002] ICR 613 and Hartman v South Essex NHS Trust [2005] ICR 782. It was true Mr Dermott had visited Harrow’s occupational health service before this time during the disciplinary process, but this was a confidential scheme and no details of Mr Dermott’s psychological health or treatment were passed back to Harrow The majority of alleged breaches occurred before this time.

Secondly, ultimately only one of Mr Dermott’s complaints was actually found to have been a breach of the Harrow’s duty to Mr Dermott: the giving of a “palpably untrue” reason to him for the change in the appeal panel. The change had come about because of a “blazing row” between one of the councillors on the appeal panel (its chair) and another who wished to give oral character evidence at the hearing in Mr Dermott’s favour. The chair disagreed and decided only written evidence would be adduced. Though it was found that the decision to change the panel in light of this disagreement was not a breach of duty in itself, Harrow’s decision to not “wash its dirty linen in public” and tell Mr Dermott the panel was changed because of availability difficulties only instead was a breach of its implied contractual term of good faith.

This breach occurred after September 2005 and so it was found that the Hatton test was satisfied. However, on the facts its was found that by the time this breach occurred, Mr Dermott had actually suffered the vast majority of his psychological symptoms and Mackay J could not be satisfied that the breach caused or made a material contribution to any discernable deterioration in Mr Dermott’s psychiatric condition.

In all other respects, therefore, Harrow were found to have generally acted reasonably and fairly in the conduct of their disciplinary process, even though its execution was not perfect.

The case is of interest for a number of reasons: it involves a consideration of the relationship between the law on unfair dismissal and claims for personal injury in tort and in particular confirms that a judge trying a common law injury action will not ordinarily try the underlying merits of a disciplinary decision or substitute his own views for that of the disciplinary panel.

It provides a useful example of the application of the Hatton line of cases to a disciplinary process and it confirms that even a well-intentioned lie can amount to a breach of the implied term of trust and confidence, something which employers will do well to note.

Rebecca Grant and Andrew Warnock are barristers at 1 Chancery Lane (www.1chancerylane.com).