The claimant in Boylin v The Christie NHS Foundation, who had been an associate HR director at the Trust, maintained that she had suffered workplace stress causing severe and lasting psychiatric injury as a result of bullying and harassment by her line manager over a period of a few weeks. She brought a claim against her employer for vicarious liability under the Protection from Harassment Act 1997 and also a negligence claim.
The facts were, as the High Court put it, "hotly contested" but, in short, revolved around a comprehensive executive review carried out at the Trust over a period of months, looking in particular at the HR function. The key events identified by the Court were:
- An experienced external consultant was brought in to carry out the review.
- The consultant recommended that the HR function needed to be upgraded, involving, in all likelihood, a director level executive.
- The consultant formed the view that the claimant was unlikely to be the right person for the new HR post and the claimant became very anxious about her future prospects as a result.
- The consultant was appointed as interim HR director and became the claimant's line manager.
- Some four months after the review started, there was a major incident when the consultant lost her temper with the claimant. After that, the claimant went on sick leave, disciplinary proceedings were brought against her and ultimately her employment was terminated.
In theory, workplace stress claims under the Protection from Harassment Act are relatively straightforward; an employer can be vicariously liable for anxiety or distress suffered by an employee as a result of a "course of conduct", amounting to harassment, committed by a colleague in the course of employment. Unlike in discrimination cases, a defence that the employer has taken "reasonable steps" to prevent harassment is not available. Having said that, a course of conduct must involve conduct on at least two occasions and the conduct must be serious – "oppressive and unacceptable".
In this case, the High Court accepted that the consultant's conduct on the one day in question crossed the line from unreasonable, unattractive or regrettable to "oppressive and unacceptable". Nevertheless, even taken with the fact that previous meetings between the two were difficult; on occasion the consultant's tone was "verging on harsh"; and she did not always conceal her irritation with the claimant, the necessary "course of conduct" was not established. The claimant felt upset and poorly treated, particularly against the background of her burning sense of grievance and injustice arising from decisions taken by the Trust. But on no occasion was the claimant treated in a manner that constituted bullying or harassment for the purposes of the Protection from Harassment Act.
The High Court then turned to consider the alleged breach of the employer's duty to the claimant under the general law of negligence. Here the test was whether any breach of duty caused, or materially contributed to, the claimant's stress-related illness and whether it was "reasonably foreseeable". Again the Court found that the claim failed. The very experienced Board of the Trust had considered, after due deliberation, that a full executive review was appropriate. As the Court put it, this is the kind of business decision that is taken every day by corporate boards and there was nothing unusual or unacceptable about it, or about the decision to appoint an external consultant. Appointing that consultant to the top HR post on an interim basis might ordinarily have been considered somewhat unusual but there were understandable reasons in this case.
The incident where it was found that the consultant swore at and threatened the claimant was a significant act of misconduct. However, the Court regarded it as a momentary lapse and the overall conclusion was that the real cause of the claimant's condition was her sense of grievance at the management process. That one incident did not cause, or materially contribute to, her condition. In any event, the negligence claim was doomed to failure because the resulting medical condition was not "reasonably foreseeable". Although the conduct was a significant breach of duty, in the overall context it was an isolated incident of relatively short duration which could not reasonably be expected to cause, or materially contribute to, a major psychiatric illness.