Clyde & Co successfully defends another stress at work/bullying/Harassment Act claim

The claimant was employed as a bricklayer by the defendant. He alleged he was bullied by his then supervisor between 2016 and 2017. He pursued a claim for stress at work along with a claim under the Protection from Harassment Act 1997.

Background

Whilst on sick leave the claimant raised a grievance against the supervisor following a workplace disagreement. Another colleague had previously raised a grievance against the same supervisor which had been fully investigated. Disciplinary action was subsequently taken in relation to the supervisor’s use of language.

The claimant’s issue was not investigated further. The employer concluded that the matters complained of had already been investigated as a result of the first complaint.

The claimant contended he had been bullied and that the decision to not investigate his grievance contributed to his alleged psychiatric injury.

Investigation and causation

We obtained statements from six witnesses. All were consistent and provided credible evidence to challenge the claimant’s case. One witness was the employee who had raised the first grievance. He had also provided a statement for the claimant which was contradictory to the account he provided to us.

The claimant’s medical expert’s view was that the workplace events, or the claimant’s perception of them, had materially contributed to the claimant’s psychological disorders. The expert did, however, accept there were other factors at play.

Separate medical evidence was obtained to investigate causation and diagnosis. Our expert concluded that the claimant had a chronic pre-existing psychiatric history of anxiety and stress, and that the recurrence was caused by personal problems including his wife’s ill health.

The claim was defended on all fronts. We concluded that the claimant could not prove his common law or statutory claims on the evidence. 

We maintained a clear and robust defence from the outset. We set out the deficiencies in the claimant’s case and made numerous (unsuccessful) attempts to persuade him to discontinue ahead of trial. It was made clear that we reserved the right to raise fundamental dishonesty in court. This however was not enough to deter the claimant and the matter proceeded to trial.

Trial

During cross-examination of the claimant, it became clear that he was confused about his own case. The claimant frequently changed his answers within a single line of questioning.

The claimant was forced to accept that his employer had informed him about the outcome of his grievance. He also had to accept that his supervisor had supported him when he raised concerns. He also conceded that following the incident with his supervisor the air had been cleared, following which a professional working relationship was maintained.

Cross-examination revealed that the claimant had created a misleading impression when he was referred to occupational health after claiming that he was a victim of ongoing bullying. This, on his own evidence, was not true. It became increasingly clear he had embellished his interactions with his supervisor in order to create the impression that his supervisor was a bully.

The claimant also, conveniently, seemed to not recall his history of depression and underplayed the impact of his wife’s serious illness and the likely impact of that on his mental health.

The claimant’s only witness had provided contradictory statements for both the claimant and the defence. Notwithstanding this, the claimant called him to give oral evidence. His evidence did not come across as credible or cogent during cross-examination. 

Following conclusion of the claimant’s lay evidence and ahead of the defendant’s witnesses being called, or oral evidence from the psychiatrists was heard, the claimant proposed agreeing that his should be dismissed.

When the parties informed the trial judge, he commented that it was no great surprise given the evidence already heard. It was acknowledged that claims under the Protection from Harassment Act 1997 (the 1997 Act) are notoriously difficult to prove. The judge stated it would be extremely hard to establish breach of duty and that the decision to withdraw was ‘very wise’.

Savings

The claimant discontinued on day one of what was intended to be a four-day trial. Based upon the likely value of the claimant’s claim and his legal costs, savings amounted to at least £160,000.

What we can learn

• It is unclear why, despite our firm denial throughout and numerous invitations to discontinue, the claimant decided to proceed to trial. Possibly there was a failure to appreciate the hurdles he would have to overcome to prove the claim both at common law and based on the alleged breach of the 1997 Act.

• Ultimately this case boiled down to a one off, workplace spat. The behaviour complained of was insufficient to prove the threshold necessary to prove a breach of the 1997 Act. There was no foreseeability or negligence to prove the common law component of the claim.

• This recent trial win on a complex stress, bullying, harassment claim is the latest in a line of successes in this complex area of litigation for Clyde & Co. Claims of this nature are on the rise and come from a wide range of occupations. Whilst there has been an increase in claims from younger, well-paid professionals, claims from other occupations including manual jobs remain commonplace.

• This is a prime illustration of the benefits of fully investigating allegations and investing in expert evidence. These remain difficult cases for claimants to prove, equally they can be expensive to defend. Whilst it can be tempting to consider commercial settlements, the cost of such an approach can cost insurers dearly. Not only may it result in meritless cases being paid but likely such an approach will encourage further claims.  

• By obtaining cogent, credible evidence and having the confidence to run the case to trial, the claim was defeated resulting in substantial savings for the insurer. The claimant has walked away with no damages and his solicitor (and counsel) will be unable to recoup the significant fees incurred in running the case so far and to trial.

• It is hoped that this further defeat involving a very well-known claimant firm, who have now also heard similar comments from the trial judge on two separate cases in close proximity, may now proceed with more caution and will take heed when it is made clear that a full and robust defence will be maintained.