[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 2604 (QB)
||Claim No: HQ04X02090
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Claim No: HQ04X02090
St. Dunstan's House
133-137 Fetter Lane
London, EC4A 1HD
||1st November 2007
B e f o r e :
HIS HONOUR JUDGE PETER COULSON QC
(Sitting as a Judge of the High Court)
ERIC ESSEL HAMMOND
- and -
INTERNATIONAL NETWORK SERVICES UK LTD. (IN MEMBERS VOLUNTARY LIQUIDATION)
THE CLAIMANT appeared for part of the trial in person
MS. SCHONA JOLLY (instructed by Judge Sykes Frixou) for the Defendant
Hearing Dates: 29, 30 and 31 October, 1 November 2007
HTML VERSION OF JUDGMENT
Crown Copyright ©
HIS HONOUR JUDGE PETER COULSON QC:
- By a claim form dated 7th July 2004 (but not served until towards the end of that year), the claimant brought proceedings against the defendant for damages for breach of the Protection from Harassment Act 1997 ("the 1997 Act") and/or in negligence. The particular allegations concern two separate periods when the claimant was employed by the defendant:
(a) between 24th September and the end of November 2000, when the claimant worked on a project in Dublin and his immediate supervisor was Mr. Tom Kim;
(b) between March and May 2001, when the claimant's line manager was Mr. Mark Page.
- The pleaded allegations at the heart of this case should be set out verbatim at the outset of this Judgment. They are at paragraph 7 of the Particulars of Claim, as follows:
"7. The clinical depression now suffered by the claimant was caused by the defendant, their employees and/or agents by their negligence and/or in contravention of section 2(1) of the Protection from Harassment Act 1997.
Particulars of Harassment
The claimant was subjected to harassment in the course of his employment by the defendants, their employees and/or agents in that:
(a) On 24th September 2000 Mr. Thomas Kim informed the claimant that a meal which had been arranged for the team of employees including the claimant had been cancelled. The claimant was informed the following day by a fellow employee that the meal had not been cancelled and that the team was told that the claimant had chosen not to attend of his own accord.
(b) On 2nd October 2000 Mr. Thomas Kim prevented the claimant from performing his employment duties as the systems administrator was instructed by Mr. Thomas Kim not to give the claimant an account on the system which was necessary to log on to a specific application. A reasonable explanation was not provided.
(c) On or about October or November 2000 Mr. Thomas Kim insulted and humiliated the claimant publicly in front of his fellow employees by unreasonably shouting at him for being late.
(d) On or about 10th November 2000 Mr. Thomas Kim cancelled the claimant's stay in hotel accommodation without the claimant's knowledge and arranged for him to be placed in an unhygienic apartment and the claimant's possessions were placed in a storeroom. Mr. Thomas Kim positively nominated the claimant from a team of employees to move accommodation.
(e) On 10th November 2000, unfounded and/or unreasonable allegations made by Mr. Thomas Kim of the claimant's lateness for work, lack of interest in his work and/or unsuitability for the Dublin Project. A consequent transferral from the Dublin Project was based on the allegation of Mr. Thomas Kim.
(f) On 10th November 2000 Mr. Thomas Kim requested the transfer of the claimant from the Dublin Project. The request to transfer the claimant from the Dublin Project was approved on or about 16th November 2000. On 20th November 2000 Mr. Thomas Kim instructed the claimant to cancel the claimant's planned holiday in December 2000 to prevent staffing shortages.
(g) On 19th March 2001 Mr. Mark Page's refusal of necessary training for the claimant, in particular by being removed from the Cable & Wireless Infrastructure Team and being assigned to the Cable & Wireless Processes and Procedure Project.
(h) On or about April/May 2001 threatening telephone calls and comments from Mr. Mark Page on more than one occasion about the claimant's job security.
(i) On 1st May 2001 Mr. Mark Page's refusal of necessary training for the claimant in particular by being removed from the Cable & Wireless Infrastructure Team and being assigned to the Impact Laboratory".
- The claimant was made redundant by the defendant in June 2001. Many of the underlying facts and matters in these proceedings have already been investigated as part of the claimant's claim for unfair dismissal and race discrimination. That claim was rejected on all points by the Employment Tribunal in a reasoned decision dated 23rd May 2002. The claimant's appeal against that decision, based on allegations of actual bias on the part of each member of the Tribunal, was rejected by the Employment Appeal Tribunal on 21st October 2002. The claimant's application for permission to appeal the decision of the EAT was refused by Kay LJ on 15th September 2005. Despite this, on numerous occasions during this trial, the claimant demonstrated that he was, in reality, seeking to use these proceedings to re-open that failed claim before the Employment Tribunal. It should also be noted at the outset that the defendant company went into members' voluntary liquidation in 2002 and this outstanding claim is now the principal matter left to be resolved before that liquidation process can be completed.
- There is agreed medical evidence about the claimant. He has been diagnosed with mixed anxiety and depressive disorder. The diagnosis has characteristics of chronic post traumatic depressive disorder, save that it was not precipitated by sudden fear or horror. It is also agreed by the consultant psychiatrists that, on the basis of what they have been told by the claimant and on the balance of probability, the claimant's condition arose as a result of the stress that he experienced whilst working for the defendant. Both men are confident that the prognosis for the claimant's condition is good and that, with appropriate treatment, he should be able to overcome his symptoms and return to full-time employment in the information technology industry.
- I must deal at the outset with certain procedural matters: section B below. I then go on to deal with the claims themselves, setting out at section C the relevant principles of law; at section D a detailed chronology by reference to the documents and the oral evidence; and at section E certain findings as to the reliability of those documents and the witnesses whose oral testimony I heard. Thereafter, at section F, I analyse in detail the claimant's case on harassment. At section G I analyse (much more shortly) the claimant's case in negligence. There is a brief summary of my conclusions at section H.
B. PROCEDURAL MATTERS
- This trial was originally fixed for hearing on 11th June 2007 before HHJ Brunning, sitting as a Judge of the High Court. On that day the claimant made an application for an adjournment, on the grounds that he was unwell due to the stress of representing himself. The judge granted the claimant's adjournment application, but solely on the basis that the claimant solemnly promised that he would obtain legal representation for the trial which had been re-fixed for 29th October 2007, with a two-day estimate. The transcript of the relevant exchange reads as follows:
"JUDGE BRUNNING: And can you give me your promise that if I do adjourn the case today you will put matters in the hands of a solicitor within seven days from today?
THE CLAIMANT: Yes.
JUDGE BRUNNING: You understand it is a serious matter to promise a court to do something?
THE CLAIMANT: Yes.
JUDGE BRUNNING: And not to do it? I must tell you that.
THE CLAIMANT: Yes.
JUDGE BRUNNING: I am not trying to put pressure on you but I just want you to understand before you give the promise.
THE CLAIMANT: Yes."
- Subsequently, the claimant failed to provide confirmation that he would indeed be legally represented and the defendant made an application to obtain that confirmation. The application was heard by Burnton J on 11th July 2007. The defendant's then counsel expressed the defendant's concern that "we will show up on 29th October and be faced with a similar situation once again". Burnton J replied: "No doubt you will, but the attitude of the court will be very different". The learned judge then obtained assurances from the claimant that he was going to be legally represented at the trial. There was then this exchange:
"MR. JUSTICE BURNTON: You have given me an express assurance that Mr. Beaumont will be representing you.
MR. HAMMOND: Yes, my Lord.
MR. JUSTICE BURNTON: And that funds are available to pay his fees?
MR. HAMMOND: Yes, my Lord.
MR. JUSTICE BURNTON: I wish to make it clear that if, on 29th October 2007 you are not represented, you cannot expect this case to be adjourned, whether or not you are able to represent yourself.
MR. HAMMOND Yes, my Lord.
MR. JUSTICE BURNTON: Do you understand?
MR. HAMMOND: Yes, my Lord."
- On 8th October 2007, the date that the claimant's skeleton argument should have been lodged in accordance with Burnton J's order, the claimant made an application to set aside that order. The purpose and reasoning behind that application was, and remains, unclear. When it was heard on 15th October, the claimant assured Saunders J in clear terms that:
(a) he did not need legal advice, because his case was so clear;
(b) he did not intend to apply for an adjournment;
(c) the trial would proceed.
Saunders J warned the claimant that, if he was not represented, the difficulties thereby created would not result in an adjournment.
- I also understand that at that hearing, as at a number of previous hearings, the claimant made critical remarks about (amongst others) the judges previously involved in the case. He was sharply reprimanded for so doing by Saunders J when he accused a judge at an earlier hearing of lying.
- On Friday 26th October the claimant provided his skeleton argument to the court, although it was not provided to the defendant until the Monday morning. It was 16 pages long, and supplemented his previous written opening, which was 14 pages long. It is fair to say that both documents demonstrated the claimant's detailed knowledge of his own case, as well as his clear understanding of the documents in the bundles, and at least his perception of the relevant law. When the trial started on Monday, 29th October the claimant, who was assisted by his friend, Mr. Sarpo, made a short oral opening in which he alleged that the defendant had acted illegally and that, at the conclusion of the case, I should refer the matter to the police.
- For the remainder of Monday 29th October and until 11.30 a.m. on Tuesday 30th October, the claimant was cross-examined by Ms. Jolly, counsel for the defendant. The claimant maintained his case throughout and answered many questions by reference to particular documents in the bundle. He repeatedly made allegations concerning the legality and competence of the defendant's conduct. He gave me no impression of being under any stress whatsoever.
- At about 11.50 a.m. the claimant commenced the cross-examination of Mr. Page. Mr. Page was the principal witness called by the defendant. This was because, of the nine allegations set out in paragraph 2 above, the first six (paragraphs 7(a)-(f)) all concerned Mr. Kim, and the defendant had been unable to trace Mr. Kim in order to obtain his assistance. Mr. Page was therefore dealing with the remaining three allegations set out at paragraphs 7(g), (h) and (i) of the particulars of claim. The claimant cross-examined Mr. Page until 1.00 p.m. without, again, giving any signs of anxiety or stress. It was therefore surprising when, at 2.00 p.m. on 30th October, the claimant sought an adjournment on the ground that he was finding the cross-examination too stressful. I rejected the application on the basis that:
(a) the claimant knew or ought reasonably to have known that cross-examination would not be easy;
(b) the claimant had been repeatedly warned that such (self-inflicted) difficulties would not justify an adjournment; and
(c) there was no obvious sign of stress at all.
- When the application to adjourn was refused the claimant continued his cross-examination of Mr. Page on precisely the same basis as before. It appeared that he was working from typed notes. Having been over certain matters relevant to the three allegations with which Mr. Page was concerned, and a good deal of other material which was not, the claimant began to repeat the same or very similar questions to those which he had asked before. I intervened on a number of occasions in order to try and get the claimant to focus on any matters which he had not yet put. Despite those interventions, and Mr. Page's patience, the same points were put six or seven times. Many of them were relevant to the failed claim in the Employment Tribunal and had no relevance to the allegations in these proceedings.
- I was anxious to get Mr. Page's evidence completed before the end of that day since he had given up his own time to be present to assist the court. I made that point clear to the claimant on a number of occasions. The claimant appeared to ignore the warnings. Then at about 4.45 p.m., his cross-examination of Mr. Page having by then lasted for just under four hours, and having achieved very little in the process, the claimant, completely out of the blue, complained that in some way I was biased against him and that I should recuse myself. I therefore became the latest, and doubtless the least distinguished, of the judges accused of bias by the claimant. No submissions were made as to how and why I might be biased against the claimant. I was therefore bound to reject the application.
- As to the recusal application, to the extent that it was or may in the future be seriously maintained by the claimant, I should refer to the judgment of Chadwick LJ in Dobbs v. Triodos Bank NV  EWCA Civ 468. In that case he said:
"7. It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judges were to recuse themselves whenever a litigant -- whether it be a represented litigant or a litigant in person -- criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised -- whether that criticism was justified or not."
I respectfully agree with that proposition. I would add that in a case such as this, where every tribunal and judge has been accused by the claimant of bias in some way or another, the result of automatic recusal would be that the underlying claim would never be determined.
- Following the failure of the very brief recusal application at 4.45pm on 30 October, the claimant then sought an adjournment, again complaining of feeling unwell. By this time it had become regrettably apparent that it would be counter-productive to sit any later. I therefore had to make arrangements for Mr. Page to come back the following day, on 31st October. I obtained the claimant's express assurance that he would come back for 10.00 a.m. on 31st October and, on the basis of that assurance, I adjourned the trial overnight. I subsequently noted that, unlike at the end of the first day, at the end of the second day the claimant removed all his documents from court.
- Neither the claimant nor Mr. Sarpo attended on 31st October. Just before going into court at 10.00 a.m. my clerk received a message to say that the claimant was going to see his doctor. When the case was called on I explained the position to Ms. Jolly. I said that it was safe to assume that, if the claimant had been present, he would be making an application to adjourn the trial on the grounds of ill-health. I therefore suggested that we proceed on that basis. Ms. Jolly then made detailed submissions as to why the case should not be adjourned.
- At the close of her submissions, at about 10.45 a.m. counsel, Mr. Cyril Adjei, attended to ask in person for the adjournment which I was assuming would have been sought by the claimant had he been there in person. Through no fault of his own, Mr. Adjei could only put forward the application on the very limited basis that the claimant was unwell and had gone to see his doctor. Once he had made his very brief submissions I considered the adjournment application and rejected it, giving detailed reasons which are repeated below. Mr. Adjei then immediately left court and did not return either that day or today. No medical certificate in respect of the claimant's health on either 31st October or today has been produced, nor indeed was the outcome of the claimant's appointment with his doctor ever made known to the court.
- As I have noted, I rejected the application for an adjournment on 31st October. There were five reasons for that rejection and I deal with each briefly below.
- The claimant had already successfully sought one adjournment in June because his lack of representation had made him unwell. He was warned in no uncertain terms by HHJ Brunning and Burnton and Saunders JJ that he would not be allowed to use the same excuse again to seek a further adjournment. If he had been made ill by representing himself and from where I sit there was no evidence of that it was entirely foreseeable, and had indeed already been foreseen by all three judges who dealt with this case before me.
- Again, if the claimant had been made ill by representing himself, he had no one to blame but himself. He had given solemn assurances to HHJ Brunning and Burnton J to the effect that he would be legally represented at the trial. In breach of those assurances he was not legally represented. No explanation for his breach has ever been provided. He is therefore the author of his own misfortune.
(c) All Relevant Matters Explored
- I have received and read the two lengthy written submissions produced by the claimant. I have read the two submissions produced by Ms. Jolly. I heard the extensive cross-examination of the claimant by Ms. Jolly. I also heard almost four hours' worth of evidence during the claimant's cross-examination of the only witness who the defendant could call dealing with any of the nine relevant allegations. No part of the claimant's cross-examination of that witness, Mr. Page, addressed any relevant points which were new, or which had not already been considered in considerable detail in the documents and in the parties' submissions.
- In other words, I was entirely happy that, by the close of the hearing on 30th October, I had heard and read all the information that was going to be of any assistance to me in deciding this case. By that point, of course, the case had already used up its two-day time estimate. I am confident that there is no part of this case fact or law which remains to be explored. In those circumstances, an adjournment on 31st October was entirely unnecessary; the case had effectively run its course by then in any event.
(d) Hopeless Case
- Finally, I have concluded that the claimant's case is without any merit at all and utterly hopeless. My reasons for that conclusion are set out in detail in the remainder of this Judgment. This conclusion means that an adjournment would serve no purpose or function other than to prolong the claimant's agony still further. In adopting that course, I am adopting the same approach as that taken by Neuberger J (as he then was) in RJ Fox v. Graham Group PLC (26th July 2001). Since I have concluded that the claimant has no case in fact or in law, such a result needs to be confirmed to all parties as soon as possible. No benefit can be derived, least of all to the claimant himself, from giving him yet another adjournment of his patently hopeless case.
(e) Delays Generally
- The fifth and final reason for my refusal to adjourn is concerned with delays generally. This case has already taken over 3 years to get to trial. This trial itself has now taken twice as long as it should have, for the reasons explained above. If I adjourned the trial now then, due to the crowded state of my list, it would not be possible to re-fix it for weeks, if not months. The defendant would also have to make arrangements to get both Mr. Page and Mr. Matthews back to court to give evidence. That would plainly be wholly unfair to the defendant, who needs finality in respect of this claim in order to complete its liquidation process. It is, of course, the adverse effects of an adjournment (both to the defendant and to other court users) which explain why the claimant was warned on so many occasions in the past by so many other judges that an application to adjourn this hearing would fail.
- Following the refusal of the application to adjourn on 31st October, I permitted some short re-examination of Mr. Page and allowed Mr. Matthews to give evidence on one point only, which had arisen for the first time in the claimant's cross-examination (see paragraph 67 below). That was the end of the evidence and, following short oral closing submissions by Ms. Jolly, which dealt largely with the law, I rose at about mid-day on 31st October to prepare this Judgment. The claimant was not, of course, present for that final part of the hearing and neither the claimant, nor anyone representing him, appeared outside court in the afternoon of 31st October.
- The claimant was informed that this Judgment would be handed down today at 2.00 p.m. Again, he did not attend. However, his friend, Mr. Sarpo did, as he politely put it, "out of respect for the court". He made no application of any kind and made it clear that he was not here to represent the claimant. I accept that and I am grateful to Mr. Sarpo for attending court this afternoon. Nobody else appeared to represent the claimant.
C. RELEVANT LEGAL PRINCIPLES
C1. The 1997 Act
- The relevant parts of the 1997 Act provide as follows:
"1. Prohibition of harassment
(1) A person must not pursue a course of conduct
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
2. Offence of harassment
(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
3. Civil remedy
(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
7. Interpretation of this group of sections
(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve-
(a) in the case of conduct in relation to a single person (see section 1(1)) conduct on at least two occasions in relation to that person or
(b) in the case of conduct in relation to two or more persons, conduct on at least one occasion in relation to each of those persons
- In Majrowski v. Guy's & St. Thomas's NHS Trust Limited  UKHL 34 ;  IRLR 695 the House of Lords concluded that an employer could be vicariously liable for acts of harassment caused by an employee in breach of the 1997 Act. The meaning of the word "harassment" had been addressed by May LJ in Majrowski in the Court of Appeal,  QB 848, and his definition was not the subject of the appeal to the House of Lords. In his judgment May LJ said:
"The Act does not attempt to define the type of conduct that is capable of constituting harassment. 'Harassment' is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable
Thus, in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers 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. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to a conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress."
C2. What Conduct Amounts to a Breach of the Act
- In order to establish harassment under the 1997 Act, there must be conduct:
(a) which occurs on at least two occasions;
(b) which is targeted at the claimant;
(c) which is calculated in an objective sense to cause alarm or distress; and
(d) which is objectively judged to be oppressive and unreasonable.
This analysis follows the helpful summary by Owen J in Green v. DB Group Services  EWHC 1899 (QB). It is also important to emphasise that the test is an objective one (R. v. Collahan  EWCA Crim 1251 ), namely whether the ordinary reasonable person would think that the course of conduct in question amounted to harassment.
- It is also important to emphasise that irritating, annoying and even upsetting conduct will not necessarily be a breach of the 1997 Act. Indeed, in Majrowski Lord Nicholls said at paragraph 30:
"Courts are well able to separate the wheat from the chaff at an early stage of the proceedings. They should be astute to do so.
. Where the
.. quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."
To be actionable under the 1997 Act the conduct in question will be criminal and might even attract a custodial sentence. It must therefore have an element of real seriousness. It must, in Lord Nicholls' words be "oppressive and unacceptable". Thus it has been found to have occurred in cases involving, for example, sustained domestic harassment, including the cutting of a Sikh woman's hair (see the judgment of the learned recorder in Singh v. Bhakar & Others Claim No. 4NGI17900). It has been found not to arise in a case which involved a supervisor ranting and swearing on the factory floor: Banks v. Ablex Limited  EWCA Civ 173,  IRLR 357.
C3. The Negligence Claim
- There is a good deal of overlap between what is required under the 1997 Act and what is required to bring a claim in common law for workplace-related stress. The relevant ingredients for this type of claim are set out by Hale LJ in Sutherland v. Hatton  EWCA Civ 76. At paragraph 43(3) of her judgment she stressed the importance of forseeability of the injury sustained, saying:
"(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large
. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability."
- In Green Owen J identified the issues in his case in the following terms:
"(i) did the claimant's managers and/or members of the HR department know or ought they reasonably to have known that the claimant was being subjected to the conduct complained of,
(ii) did they know or ought they reasonably to have known that such conduct might cause the claimant psychiatric injury,
(iii) could they, by the exercise of reasonable care, have taken steps which would have avoided such injury."
I respectfully adopt the approach of both Hale LJ and Owen J in the two passages set out above. In particular it seems to me important that, in a case concerned with workplace-related stress, for an employer to be liable it must be demonstrated that the employer knew or ought to have known that the employee was not able to withstand the normal pressures of the job.
D1. The Claimant's Engagement of the Defendant
- Prior to his engagement by the defendant, the claimant had studied at the Guildhall University for four years from 1992 to 1996. He then worked for a training company called Steppingstones Europe Limited. His employment by the defendant was, apparently, the first time that the claimant had been employed by an organisation providing a range of consultancy services to commercial clients, as opposed to being wholly concerned with training.
- The defendant engaged the claimant in April 2000 as an Associate Network Systems Engineer ("ANSE"). The offer letter was dated 26th April 2000. It was countersigned by the defendant on 3rd May 2000. The letter referred to the "enclosed terms and conditions of employment". At clause 14 those terms and conditions contained a grievance procedure in the following terms:
"Where an employee has a grievance arising from an employment matter then this should be initially raised with their immediate manager who will record details of the grievance and, after due consideration, will give a decision within five working days of the matter being raised. Full details of the grievance procedure are available too in the Employee Policies and Procedures manual."
It is common ground that the claimant never resorted to this procedure to make the nine allegations which now lie at the heart of this case. I do not accept that the claimant deliberately chose not to choose the procedure because, as he put it, "the procedure was unsafe".
- The defendant also had a more detailed grievance procedure document, but this was said not to apply where the matter related to harassment when, instead, it was the defendant's Fair Treatment at Work Policy document which was relevant. Under the general heading of "Harassment", that document provided as follows:
"Harassment is unwanted and inappropriate behaviour on the part of employees towards others which disrupts the working environment. It can have a serious and lasting effect upon the health, confidence, morale and performance of those affected.
It is the Company's policy to ensure that this kind of unacceptable behaviour does not occur in the workplace or, at any event, in connection with an employee's employment, e.g. office party or business trip. Although this does not usually include events outside office hours which have not been organised by the Company subject to exceptions (such as those mentioned above) the Company will take action against any employee who brings the Company's reputation into disrepute.
Harassment on the grounds of gender, race or disability at work is unlawful and may result in both the Company and the perpetrator being required to pay damages. Intentional harassment may also amount to a criminal offence and result in a report to the police and possibly prosecution.
Each employee is entitled to make their own decision as to what conduct they find offensive. Employees must realise that conduct may be unacceptable and offensive to one employee but not another, regardless of intention."
It seems to me that such a policy in relation to harassment was entirely in accordance with both the law and common sense.
- Between April 2000 and September 2000 the claimant had, apparently, worked satisfactorily on a number of projects for the defendant. At all times his line manager was Mr. John Spearing who did not, at this point, voice any apparent concerns about the claimant's conduct or performance. An ANSE such as the claimant was broadly expected to work billable hours for three-quarters of his or her time, with the remaining quarter being given over to training and study.
D2. The Dublin Project
- The defendant was involved in a project in Dublin called the Formus Broadband Project. This was an important project which required the defendant to offer a service 24 hours a day, seven days a week. There was a large team of the defendant's employees in Dublin servicing this contract. The supervisor of the project on behalf of the defendant was Mr. Tom Kim, a Korean American.
- The claimant flew to Dublin on 22nd September. Either that day or the following day (he was unsure which) was an induction day which he spent in the company of other employees new to the project and Mr. Kim. The claimant understood that that night there was going to be a team dinner at a hotel in Dublin. The claimant says that he went back to his (different) hotel to shower and change, only to be telephoned by Mr. Kim to say that the dinner would not take place. The following day the claimant says that he was told by Mr. Brennan (another employee) that there had been a dinner and that Mr. Kim had remarked that the claimant had not attended because "he feels that he does not fit in". The claimant did not take this matter up at any time with Mr Kim.
- On 30th September 2000 Mr. Wakeling, another employee, sent Mr. Kim an e-mail which suggested that the claimant was able to sleep at work, whilst he, Mr. Wakeling, was unable to do so. Another e-mail was sent by Mr. Wakeling on 1st October which said that "Eric winds me up but I can work with him if communication is kept to a minimum". It was the claimant's evidence that, after he had left the Dublin Project, he was told by another employee that his former colleagues got together and said that Mr. Kim should apologise to the claimant for his treatment of him. This, somehow, led to the claimant's conclusion that Mr. Wakeling's e-mails (referred to above) had been sent to Mr. Kim at Mr. Kim's invitation and that they were in some way part of a broader conspiracy against the claimant.
- At around this time the claimant says that he was not able to log on to a specific application and, when he subsequently investigated this, he was told that Mr. Kim had decided that he should not be able to log on to that particular application. The claimant was unable to remember to which application the stop related, which was perhaps unsurprising given that he was dealing with a large number of different applications. He also confirmed that it had not affected his working practice in any event, because he had been able to use the account number of another colleague to log on to the particular application.
- It appears from the documents that Mr. Kim was concerned about the claimant's lateness. The claimant accepts that he was late on three occasions. Mr. Kim's e-mail of 23rd November 2000 (dealt with in greater detail in paragraph 50 below) indicated that he was late on at least seven occasions. The claimant alleges that on one occasion Mr. Kim "insulted and humiliated him publicly in front of his fellow employees by unreasonably shouting at him for being late". In cross-examination the claimant could not recall what Mr. Kim had said and indeed there is no document, including those documents prepared by the claimant just months after this alleged incident, in which the claimant was ever able to specify the words used by Mr. Kim.
- On about 10th November the claimant's accommodation in Dublin was changed from a hotel to an apartment. The documents in the Employment Tribunal suggested that the claimant was upset at being moved out of a hotel, although in cross-examination he accepted that that was not the basis of his complaint, and that instead his complaint related to the way in which the change had been made and the unhygienic nature of the apartment into which he had been moved.
- Also on 10th November Mr. Kim e-mailed Mr. Brian Loveday, his line manager, about the claimant's performance. The e-mail read as follows:
Per our conversation earlier this week, I am afraid we are going to have to look into replacing Eric Hammond. I thought I would give you the heads up so we have enough time to get the ad out. Both David and I feel that we have given him plenty of opportunities to make changes and have repeatedly spoken with him about the problems. The issues that we've had are promptness and a lack of interest in what we have been tasked to do here. He has been late for shifts and my concern is that other members of the team cannot depend on him to relieve them on time. While he does spend a lot of time on professional development I am not confident that he has learned any of the skills required to operate effectively in the customer's environment. We have a good group of engineers out here and I am sure with enough time Eric would be able to get up to speed and work more closely with his colleagues. However, based on the nature of this engagement, time is not a luxury we have. Anything you can do to assist us with this issue would be appreciated."
The important point to note at this stage about the e-mail is that, on the face of it, it is based not only on Mr. Kim's views, but also the views of others employed by the defendant on the Dublin team.
- Arrangements were made to replace the claimant with Mr. Chris Rooke. On 16th November Mr. Loveday e-mailed John Spearing, passing on Tom Kim's e-mail referred to above, and saying that, although the claimant needed to be moved off the project, Mr. Loveday was keen to ensure that this "be handled as sensitively as possible without creating a feeling of negativity towards others in the team as I am sure he [will] be working with them on other projects in the future".
- There were delays in obtaining Mr. Spearing's decision on whether or not the claimant should be retained on the project. Therefore, although Mr. Rooke was brought to Dublin at this point, the claimant continued to work on the project alongside him. On about 20th November Mr. Kim asked the staff for volunteers who might be prepared to give up their Christmas and New Year holidays to ensure that the project was staffed over the holiday period. The claimant alleges that he was nominated to give up his holiday by Mr. Kim, although in the event, once he came back to London in December it appears from the time sheet records that he took this holiday anyway.
- The delays on the part of Mr. Spearing obviously created acute difficulties for Mr. Kim. On 22nd November 2000 he sent an e-mail at 4.50 p.m. to both Mr. Loveday and Mr. Spearing to say:
"I've not yet received an update on where we stand with regard to Eric Hammond. At this point I have to ask myself if I should be speaking with Eric directly. When the request was submitted to have a resource replaced I was told that we should not say anything directly to the individual in question and that Management would be responsible for sorting this issue out. Currently we have a consultant in Dublin 'standing by' when he could have been billing at this point. Not only is this becoming an extremely embarrassing situation I feel as though basic levels of common courtesy are not being extended to both engineer involved. Can you please provide me with an update on this situation as soon as possible?"
- This seemed to galvanise Mr. Spearing into action. At 6.30 p.m. he e-mailed Mr. Kim and Mr. Loveday as follows:
"Tom and Brian
Can you furnish me with some factual information before I talk to Eric, i.e. how many times has he been late and by what amount, how long has it been going on for, what efforts have been made to correct the issues? Has he been mailed about it, i.e. what correspondence is there, etc., all the usual stuff. I need this so that when I talk to him I can explain exactly what has happened and why he is being moved off the project. If it looks like it is simply to get somebody else into the billing position I'll find it difficult to explain without this information.
Eric's frequent complaints were:
He received no training requested in order to carry out his tasks in the NOC.
Also he often had to work very long shifts because the following person did not turn up and he had to cover until somebody did arrive. Were these addressed before he lost his motivation?"
- Mr. Loveday responded at 6.50 p.m. to say:
"I'll explain my view of the situation and let Tom fill you in on the details as Eric has had most contact with him. Eric is an ANSE which to me means that he is not expected to be at a full consultant billing level. He is currently in an engagement commanding that level of billing. If there is any reason, whether it be the fault of his or a need for greater consultancy training, he is not performing at a level to command the billing rate and I've no option than to request his transfer off the project. We are not in a position on this engagement to give ANSE training.
Tom has given his reasons and I have talked with other members of the team who are of the same opinion as Tom. Therefore this is not a one-sided view of Eric's performance. The entire team feels he is not ready for an engagement of this level. I will gladly talk to Eric and let him know where we stand on issue as the need is immediate. I just wanted to give you the option to talk to him yourself."
Mr. Spearing responded promptly that same evening to the point about billing charges:
"Just bear in mind that he was asked at short notice to go to Ireland, has been moved around from NOC to NOC and was prepared to travel anywhere for long periods, China, France etc. He had an expectation set that training would be provided and when he was engaged in this assignment everyone was fully aware that he was ANSE and what the billing rates etc. were. I am not trying to make a meal of this, just making some observations before we get too heavy on the lack of performance front. It's difficult to obtain staff who are prepared to work shifts in a NOC environment and there have been no issues with him to date."
- Mr. Kim's response to Mr. Spearing's request was sent the following day and incorporated the text of his fax of 10th November (paragraph 44 above). It then included a lengthy list of observations about the detail of the claimant's performance on the Dublin Project. Given that six of the allegations made in this case concern the Dublin Project, and given that this is the most detailed report in the contemporaneous documents about the claimant's performance, it is necessary for me to read it all:
"Again the original issue was promptness. At the very beginning of the account there were several occasions (approximately 7 off the top of my head), where Eric was showing up late. This was addressed with him by myself or the other supervisor at the time, David Cross. We have seen a notable improvement on this until recently when I was working a shift. He showed up 45 minutes late and when asked what the problem was quoted everything from taxi problems (which he should plan for anyway) to the cleanliness of the apartment he was in. There was always an excuse or reason for any tardiness and in all honesty I'd prefer a response somewhere along the lines of, 'I was late. It was my fault. I take responsibility for it.'
Even though Eric did make improvements with getting to shift on time, there were other issues we had as well. The nature of this engagement requires that we all work together as team. When a problem occurs we are dependent on the professional nature of all the engineers to take personal responsibility to understand the process and resolution. I never saw this with Eric. In fact there were several occasions when I had seen a group of engineers working together and Eric over at his desk reading a CISCO book with our customer point of contact, the SMC Manager, sitting right behind him watching his disinterest. On one occasion I came into the office on a bank holiday to find Eric sleeping right in front of the door to the SMC. I can understand that with this type of work there will be the odd occasion when someone needs to get some rest that's why we have two people but propping yourself right in front of a window at a customer site where he would be the first thing you saw is unacceptable.
I am wondering how much of this 'lack of interest' is directly related to the impression he set at the very beginning of the project. As an SMC Supervisor it is important for me to understand issues within the team and resolve them as quickly as possible. The impression that I have received is that the other engineers do not feel that they can depend on Eric if it came down to it. In our environment this can be an extremely dangerous thing so at this point I do not see Eric collaborating with the rest of the team who seem to be getting on fine.
To make a long story short, here's a list of bullet points expressing my concern with Eric's involvement on this Project and hopefully addressing the points you have:
- Late on several occasions
- Lack of interest developing knowledge applicable to this project
- Training - no one on this project (from a Lucent perspective) has received formal training on the tools. Everyone understands that with the constraints on the engagement they are responsible for getting themselves up to speed by working with the tools and each other.
- Hasn't displayed a level of understanding of the tools to this date while the rest of the team has.
- Constantly asking for training but people have told me that during training classes he's been in, he will disappear off to the kitchen for an extended period of time.
- Other members of the team have been late (these things happen) but no one has been continually late like Eric has. Also if team members work these coverage issues out on their own, I think it speaks volumes about how well the group is operating.
- The impression I get from the team is that they don't feel as though they could count on Eric.
According to Mr. Kim's e-mail, on the evening of 22nd November he had a discussion with the claimant about why he was being moved off the Dublin Project. Mr. Kim's report of that conversation was at the end of the e-mail of 23rd November in these terms:
- I do NOT have the confidence in his abilities on this project to handle any issues if he was by himself."
"To let you know where we stand currently, Eric told me last night that either Brian Loveday or myself had explained to him why he was being transitioned off the account. I met with him this morning. We went over a few of the details, mainly promptness and a lack of interest in the project. I also explained to him the fact that sometimes there just isn't a fit between an engineer and a project. This happens all the time and he shouldn't take this as a reflection of his abilities in any way. I also extended an apology to him for the manner in which this situation was handled. At the end of the day, Eric is a nice person and no one deserves to get the news that he is leaving an account in this way."
The claimant denied that there had been any such discussion with Mr. Kim. He said that he had never been given the reasons why he was being moved off the Dublin Project. On his version of events, Mr. Kim met him at a restaurant and shouted and screamed at him and threatened him physically. There was no document, including those produced a few months after this incident when the claimant was setting out his complaints, in which any such allegation was made.
The claimant left the Dublin Project on or about the 26th or 27th November. On 28th November Mr. Kim sent him an e-mail in these terms:
"Eric, I wanted to take this opportunity to thank you for your work on the Formus Broadband engagement. I am sure you understand that it was a difficult situation that I found myself in when I had to transition you off the engagement. As I indicated during our discussion, this is no indicator of your abilities and experiences. From what I have seen, this happens all the time as it is impossible for consultants to match every engagement out there. Also I would like to thank you personally for finishing the week off and agreeing to work the Friday shift for James. I think it speaks volumes that even with the confusion surrounding the situation you were still willing to support your team. That in itself shows dedication and responsibility indicative of our corporate culture."
D3. The Claimant's Meeting with Mr. Spearing in January 2001
There were no written records of any complaints made by the claimant about Mr. Kim during his time in Dublin. It is clear from Mr. Spearing's e-mail of 22nd November 2000 (paragraph 48 above) that the claimant spoke to him regularly and had made complaints about the lack of training and the working of long shifts. There is nothing to indicate that any other complaints had been made by the claimant to Mr. Spearing prior to the meeting on 8th January 2001.
It was the claimant's case in cross-examination that, immediately on his return to London at the end of November, he set out a detailed e-mail to Mr. Spearing which set out his complaints about Mr. Kim. This e-mail was not produced. It was not referred to in any of the claimant's statements, or in any of the other documents produced by the claimant during the last six years in which he has pursued both his claim in the Employment Tribunal and these proceedings. Indeed, the existence of such a document seems to me to be wholly at odds with the claimant's own written statement in these proceedings which suggests that the first time that he complained to Mr. Spearing about Mr. Kim was indeed at their meeting on 8th January 2001.
There is a record of that meeting in the form of an e-mail from Mr. Spearing to his manager, Mr. Matthews dated 8th January 2001. The e-mail reads:
Had a long conversation with Eric Hammond. I'm a bit concerned about the treatment he received in Ireland primarily at the hands of Tom Kim. I've attached a couple of e-mails that outline the issues from Tom Kim's viewpoint but from Eric's explanation of the situation there appears to be a different story. Eric has put it down to experience and did not want to escalate the issue but forget about it and move on.
I've arranged for Eric to come in to [Cable & Wireless]
. This will give me a chance to see Eric in operation first hand. I said to Eric that regardless of what had happened and who is right and who wrong, he needs to have a clear track record on this project as the former situation may be thrown at him in the future.
I now have both sides of the story and am interested to know what you think the best move would be. I will have a picture of Eric's performance at Cable & Wireless but am concerned that if there is an issue with Tom that it gets highlighted.
. The treatment Eric said that he received was pretty bad."
The claimant denies the accuracy of this note. He disputes, for example, that he said that he had put the incidents involving Mr Kim down to experience and that he wanted to move on. He claims that Mr. Spearing made detailed notes of their discussion which had never been produced; indeed, he suggested that the non-production of these notes by the defendant was deliberate. However, he did agree that, following the meeting on 8th January, he never once raised any of these matters again with Mr. Spearing, and did not enquire as to how any investigations into Mr. Kim's conduct were progressing.
D4. The Cable & Wireless Project
Although Mr. Page had originally indicated in his statement in the Employment Tribunal proceedings that he had assigned the claimant to the Cable & Wireless Project in early March, it appears from the contemporaneous documents that that was incorrect, and that the claimant had been working at Cable & Wireless from some time in January 2001. It appears that for a number of weeks the claimant reported to Mr. Mark Sims on the infrastructure part of the project. All his hours on the Cable & Wireless Project at this point were identified as 'job shadowing' and 'training'; they were not billable to Cable & Wireless at all. The point was made in the defendant's internal documents that the claimant's percentage of training hours, as against billable hours, was unacceptably high.
For a week at the end of March 2001, the claimant was switched to the process and procedures element of the Cable & Wireless Project. He was, according to the records, only on that part of the Project for one week. It was, coincidentally, his only billable week during the spring of 2001. Mr. Page said in cross-examination that he thought that the claimant had been switched to that part of the project in order to cover for somebody else who was on holiday. After his own holiday, the claimant went back to the infrastructure team and the job shadowing regime as before. The claimant alleged that he was moved back to the infrastructure team because of pressure from his colleagues. Mr. Page denied that, repeating that he had only been moved for the week because of the need to cover for a colleague who was on holiday.
By this time, concern was growing that the claimant's performance was not all that it might be. The particular concern that arose (which had, of course, been raised before in Dublin), related to the claimant's emphasis on theoretical training, his perceived lack of enthusiasm for working billable hours and his lack of hands-on experience. This latter point had been identified by the claimant himself in his Professional Development Plan dated 17th March 2001 in which he said, amongst other things:
"My previous MC, John Spearing, believes that I need some hands-on training to aid in my consulting duties
In order for me to increase my versatility/readiness for new assignments, client engagements or projects I need to develop my skills through being given the opportunity to gain at least some hands-on training
The general consensus is that I could do with some product training because most of my knowledge is theoretical."
Mr. Page, who by now had replaced Mr. Spearing as the claimant's line manager, considered putting the claimant on a Professional Improvement Plan ("PIP") and obtained information from Mr. Sims, the person with the most recent experience of the claimant's performance. In an e-mail dated 1st May 2001 Mr. Sims said of the claimant:
"As per our conversation on Friday.
Displays an apparent lack of self-motivation, waits to be given tasks, does not readily ask or go and seek out things.
Appears to spend a lot of time reading and browsing exam material. Sure, this is OK to widen knowledge but Eric shows a preference for this rather than becoming involved in the project work and understanding about the project requirements in hand.
Needs quite a lot of supervision and assistance with simple hands-on tasks which tends to indicate a lack of understanding of some of the more basic skills and networking knowledge. Eric often needs help at many stages of the task and rather than try to work a problem through, will just ask 'How do I do this?'
Does not think problems through. The type of questions asked shows that he does not think about what he is trying to create or achieve i.e. when Eric comes up against something new or he does not understand, he will just ask how does he do something without having at least a try to part solve the problem or to look it up in documentation.
Practical ability needs improving. Understanding of basic LAN/WAN interfaces, cabling types and networking standards. Eric displays some difficulty in interpreting theory into a practical solution, e.g. he may know the theory of, say, routing but I personally feel he finds it difficult to get two routers to physically talk to each other, i.e. understanding of the necessary steps that link together in order to configure and cable up a network of routers and switches. This appears to be inconsistent with the level of understanding I would expect from a candidate with CISCO CCNA/CCDA qualifications.
Eric has, however, improved since joining. He is becoming more confident working on routers and Ethernet switches with fairly straightforward configurations. There are many excellent opportunities for him to learn in the Proof of Concept Lab as at present [it] is not a 'live' customer network. He needs to seize the opportunity to get involved while he can."
It hardly needs to be said that the detailed observations there chime very closely with the detailed observations made by Mr. Kim in his e-mail of 23rd November. There is no evidence that Mr. Kim and Mr. Sims ever met or discussed the claimant's performance.
D5. The Swindon Project
Mr. Page told me that he did not want to put the claimant on a PIP if he could avoid it, not because it was a disciplinary procedure in itself, but because it might lead on to a disciplinary procedure. He decided therefore that the best thing for the claimant was to send him to Swindon, to the defendant's own laboratories there. That was the Proof of Concept Laboratory to which Mr. Sims referred to in his e-mail (paragraph 61 above). Mr. Page explained to me his reasoning behind sending the claimant to Swindon, saying this:
"It is a Proof of Concept Lab, that is exactly what it is. It contains all of Lucent's product range so the customers can test that range out, so they can see a proof of concept. It is a place where you can safely test the kit that the customers are going to use. In this way if it goes wrong, it does no harm to anybody's business. The claimant's job was to use the up-to-date kit. If a client says, 'Show me how it works', you take him to a Proof of Concept Lab. It is a demonstration lab. The customer then spends millions."
The claimant denied that the laboratory was a Proof of Concept Lab but other than that, did not apparently challenge this evidence from Mr. Page. Indeed, it is difficult to see how he could. However, he maintained that Mr. Page made threatening phone calls to him during April and May, including the time when he was based in Swindon, and cast doubt on the claimant's job security. Mr. Page emphatically denied such allegations.
D6: The Defendant's Redundancy
In early June the defendant restructured its business and made a number of people redundant. As part of this process, they considered each of their 200 employees, who were given marks across a range of abilities and experiences. The claimant scored the second lowest mark out of all 200 employees. It is fair to note that one of the few positives for him was that, thanks to Mr. Page, he was not on a PIP. However, given his low score, on 5th June 2001 he was notified that his position was "at risk" of redundancy.
The following day, 6th June 2001, having received that notification, the claimant then wrote to the defendant to complain about what he called "bad treatment I perceive to have received" from the defendant. This was, as the claimant accepted in cross-examination, the very first written record of any of his complaints. Given what I find is the gulf between the complaints that he now makes in these proceedings, and the content of this contemporaneous written complaint, it is appropriate for me to set out the e-mail in full:
"This is a formal complaint about bad treatment I perceive to have received from Lucent, and a request that some of the issues be redressed. During our earlier meeting and subsequent telephone conversations I voiced my upset at the lack of opportunity I expected to have been accorded as a Lucent employee as per my interview for the position of ANSE.
I was turned down for any training that would have enhanced my skills, be it for equipment I was expected to work with or other training that were provided for other ANSE's It got to the point where I was forbidden from studying or taking any more examinations at the risk of losing my job. I believe this to be very wrong since others were encouraged to study and to take more examinations.
In passing the MCSE CCDA and CCNA I expected NOTT awards as was customary within Lucent. To my dismay I was refused this when other engineers received theirs. Can you blame me for believing there was discrimination and prejudice in making those decisions?
Last year I had to cancel my holidays in order to prevent a shortage of staff on a project to which I had been assigned. I was refused payment for this but I carried those days over to this year. Others were paid for theirs and as such instils the belief in me that Lucent does not practice equal opportunity for all.
As I explained during our telephone conversation, I deem it rather unfair and prejudiced that I am refused the right to expense the cost of my travel to work when all within the same position receive payment.
All that I ask is to be treated fairly, just a semblance of EQUAL OPPORTUNITY."
The meeting to which the claimant refers in this e-mail was a meeting with David Matthews which had taken place a few days before. In his internal response to the claimant's complaints, Mr. Matthews also referred to that discussion. That internal response identified each of the complaints made by the claimant and demonstrated how and why, in general terms, Mr. Matthews considered that they were unfounded. It is right to note that, in relation to the NOTT Awards, Mr. Matthews noted that some awards should be made retrospectively. As to the holiday point, Mr. Matthews noted that there was no obligation to pay, but concluded that a payment should be made in the circumstances. He reached the overall conclusion that the defendant company had not behaved in a way that was discriminatory or out of line with its stated policies, but recommend acting sympathetically with respect to certain of the specific complaints, such as the NOTT Awards.
A meeting to discuss the matters further was arranged for 8th June but the claimant cancelled it because he was feeling unwell. There was a subsequent telephone conversation between Mr. Matthews and the claimant. In another internal note Mr. Matthews said that "although some of Eric's concerns have some validity", he could find no evidence that the claimant had been discriminated against in any way, and he went on to say that, during the conversation, he thought that the claimant "accepted this view".
On 13th June 2001 Mr. Matthews responded to the claimant's e-mail of 6th June in very similar terms to those set out in the internal document noted at paragraph 66 above.
During his cross-examination, the claimant suggested that, later on 13th June, there was a conversation in which he made orally to Mr. Matthews the complaints at paragraph 7(g) to (i) of the particulars of claim, which had not been set out in his e-mail of 6th June 2001. That assertion had never been made by the claimant at any time before. I permitted Mr. Matthews to give oral evidence limited to that point alone. As had been put to the claimant in his own cross-examination, Mr Matthews denied that the claimant had raised such matters with him on that occasion. There was no subsequent document which supported the allegation that those matters had been raised with Mr. Matthews in that conversation.
On 14th June there was a meeting with the claimant to consider the claimant's appeal against his redundancy. The written record of it is fairly short. The claimant insisted that this document was forged and, for example, disputed the reference within it to his acceptance of the decision to make him redundant. The evidence of its alleged forgery was said by the claimant to be demonstrated by the fact that, whilst the written record referred to providing a doctor's certificate "tomorrow", the letter which enclosed the written record that was sent the following day suggested that the certificate had to be provided by "noon". It was not clear to me how this demonstrated that the written record of the meeting was forged or, more importantly, what possible relevance such an outlandish allegation could have to the claimant's claim in these proceedings. It may be that the claimant simply misunderstood the basic point that the written record kept by the defendant was not a verbatim record of everything that was said at the meeting, but simply a summary of the important points that had been discussed.
As noted, although the claimant took his case on dismissal and discrimination to the Employment Tribunal, his claim was unsuccessful. Each attempt at an appeal was also unsuccessful.
E. THE RELIABILITY OF THE DOCUMENTS AND THE CREDIBILITY OF THE WITNESSES
E1. The Contemporaneous Documents
I have set out at some length the contemporaneous documents relevant to the allegations now made by the claimant. In any case where the relevant events happened many years before their investigation by the court, the contents of such contemporaneous documents are extremely important. They generally give the court the most reliable picture of the real ebb and flow of the relevant events at the time that they were happening.
This case is no different. Here, the contemporaneous documents create a very clear and consistent impression of the context and background to the claimant's complaints in these proceedings. In my judgment the contemporaneous documents show, amongst many other things:
(a) A lengthy catalogue of matters which, for better or for worse, led Mr. Kim to conclude that the claimant was not suited to the particular demands of the Dublin Project (see in particular paragraphs 44 and 50 above).
(b) One of the matters in the list was a concern about the claimant's emphasis on theoretical knowledge rather than obtaining hands-on experience, and his repeated requests for training rather than endeavouring to maximise his billing capability (see paragraphs 44 and 50 above). This concern is important because it is borne out by later documents written by people who had no involvement in or knowledge of the Dublin Project (see in particular paragraph 61 above).
(c) Complaints by the claimant to Mr. Spearing during his time in Dublin which, on the face of the documents, were plainly limited to the lack of training and working long shifts (see paragraph 48 above). None of the matters now alleged by the claimant in respect of the events in Dublin are shown by the documents to have been raised by the claimant at any time whilst the claimant was there.
(d) Real concern on the part of Mr. Kim to ensure that the replacement of the claimant by Mr. Rooke, although necessary, was properly handled by the defendant, and real gratitude on his part that the claimant had put himself out for the project right to the end (see in particular paragraphs 51 and 53 above).
(e) The raising of some unspecified complaints by the claimant at the meeting on 8th January 2001 but also his decision not to take those matters further (see paragraphs 54 to 57 above).
(f) The continued concerns about the claimant's performance during the first part of 2001 (paragraphs 58 to 63 above) and, in particular, the possibility that his performance was so in need of improvement that he would be put on a PIP.
(g) The raising of specific complaints by the claimant in his e-mail of 6th June 2001, concerned almost exclusively with a lack of training opportunities, and other financial complaints, with no suggestion of harassment by either Mr. Kim or Mr. Page (see paragraph 65 above).
(h) The claimant's apparent acceptance that there had been no discrimination and of his redundancy (see paragraphs 67 and 70 above).
In addition, in my view, the documents are eloquent in what they do not say. With the exception of the point about the holiday at paragraph 7(f) of the particulars of claim which is referred to obliquely and in a purely financial context in the e-mail of 6th June there is no single document produced when the claimant was in the employment of the defendant in which:
(a) the claimant sets out any of the allegations which he now makes against Mr. Kim;
(b) the defendant acknowledges that the claimant had made any of those allegations about Mr. Kim;
(c) the claimant set out any of the allegations that he now makes against Mr. Page;
(d) the defendant acknowledges that the claimant had made any of those allegations about Mr. Page.
Further, there is not a single contemporaneous document which suggests either that the claimant viewed the defendant's conduct as harassment, or that the alleged events gave rise to any anxiety or distress on his part.
In other words, the documents are entirely supportive of the defendant's case that the matters complained of either did not happen at all, or were trivial (and were regarded as such by the claimant), or can be traced back to reasonable operational decisions taken by the defendant as the claimant's employer. They show conduct that, in my judgment, is as far removed from harassment as it is possible to get. I find that the contemporaneous documents are therefore entirely contrary to the claimant's case as pleaded and as maintained at this trial.
In those circumstances the claimant has appreciated that he needs to neutralise or nullify the obvious effect of those documents, or his claim will fail. He has endeavoured to do this by suggesting that certain documents are forged; that other documents were deliberately provided to mislead and to put him at a disadvantage and are therefore untrue; and that still other documents have been deliberately withheld by the defendant. Indeed, according to the claimant's supplementary opening at paragraph 35, he suggested that all the contemporaneous documents provided by the defendant were "either forged or altered". I find, in respect of the only example of this allegation actually given in that paragraph, namely the draft and incomplete appraisal document, that the document was neither forged nor altered, and was fully explained by Mr. Page in his evidence. I also note that in his cross-examination the claimant said that all the defendant's e-mails had been altered and that, more generally "the defendant fabricates documents".
During the claimant's cross-examination I made various interventions, reminding the claimant of these allegations, and urging him to make them good. He wholly failed to do so. He never at any stage suggested to Mr. Page that any of the documents produced by Mr. Page were somehow forged or deliberately misleading. Thus, there was no evidence of any kind which suggested, even for a moment, that the contemporaneous documents were forgeries or somehow deliberately constructed to mislead the court. The allegations seeking to undermine the contemporaneous documents were unsubstantiated in every particular. I therefore reject them.
I am bound to note that this is not the first time that the claimant has made these baseless allegations. He made similar allegations in the Employment Tribunal. In their decision of 22nd May 2002 they noted that: "The claimant's unsubstantiated claim during the course of the hearing that some of the documents have been doctored by [the defendant]" was incorrect and that they viewed his evidence "with some caution" as a result. It is a conclusion with which, for the reasons I have given, I am bound to agree.
In the circumstances I find that the documents referred to in section D above were genuine contemporaneous documents which provide the best possible evidence of the events concerning the claimant at the relevant time. They make plain that the claimant's case is based either on events that simply did not happen or events which were the product of reasonable management decisions. They also demonstrate a complete absence of any anxiety or distress on the part of the claimant. They are therefore wholly contrary to the claimant's case in these proceedings. Indeed, I consider that they show that the claimant did not regard the defendant's conduct as harassment at the time and that the claims now made are thus wholly without merit.
E2. The Witnesses
E2.1. The Defendant's Witnesses
The defendant company, as I have explained, is in members' voluntary liquidation and therefore requires the resolution of this claim in order for that liquidation procedure to be completed. Because of the stale nature of the allegations, it was not possible for the defendant to trace Mr. Kim, who stopped working for the defendant in about 2001. The defendant was able to trace and call Mr. Page who, as I have explained, dealt with the last three of the nine allegations relied on by the claimant. They also called Mr. Matthews simply to deal with the point about the alleged conversation on 13th June. Despite the fact that both men are in the employment of other companies, they attended court during the first three days of this trial and, as I have noted, Mr. Page gave evidence for almost four hours.
Both men, I consider, were palpably fair and honest witnesses. Mr. Page, in particular, bent over backwards to assist the claimant. Where his statement in the Employment Tribunal proceedings (now three and a half years old) contained inaccuracies, no matter how trivial or irrelevant, he immediately accepted them. He retained his patience with the claimant at all times, despite the repetition of the questions, and the gulf between the claimant's assertions of what happened and the evidence in the contemporaneous documents. Given the particular nature of the allegations that the claimant made against Mr. Page, it is entirely appropriate for me to commend Mr. Page's patience and temperate manner in the witness box.
The claimant made specific and very serious allegations against the defendant's employees. Examples include:
(a) Mr. Kim
The claimant said at paragraph 6 of his first opening that Mr Kim "solicited fake statements in support of his fake claims".
(b) Mr. Page
The claimant described him on more than one occasion during his evidence as incompetent but in his first opening at paragraph 7 he said this:
"I will establish that Mr. Mark Page lacks credibility and is apt to lie about matters. I will prove that Mr. Mark Page is determined to mislead the court. If Mr. Mark Page relies on his witness statement it will be evident that Mr. Mark Page is deliberately seeking to mislead the court and thereby commit a criminal contempt of court or perhaps attempting to pervert the course of justices."
As I have said, these are very serious allegations. However, as with the claimant's allegations in respect of the documents, there was nothing to support any of these suggestions in any way. They were wholly unfounded assertions. Not only was the claimant not able to prove that Mr. Mark Page "has determined to mislead the court", but he never made any attempt to do so. I therefore reject these allegations and confirm that, in my judgment, the evidence of the defendant's witnesses and, in particular, the evidence of Mr. Page, was both reliable and helpful.
E2.2 The Claimant
I regret that I cannot say the same things about the claimant's evidence. Of course, I make every allowance for the fact that the claimant was representing himself (despite the entreaties of a number of judges earlier in these proceedings for him to obtain legal representation). I also make every allowance for the claimant's illness, set out at paragraph 4 above. But notwithstanding all of that, I can only conclude that the claimant was a wholly unreliable witness.
During his cross-examination by Ms. Jolly, there were numerous occasions when the claimant said in evidence whatever he thought at that point would assist his case, regardless of whether or not it was true. Thus, on the one hand, he made allegations of forged and misleading documents, company-wide conspiracies and the like without a shred of evidence to support them; yet, on the other, was quite unable to explain how and why he had failed to make the relevant allegations shortly after the events had occurred on which they were based. The claimant's whole case was based on assertions which could not be proved, and which grew increasingly incredible as the trial progressed.
Again, it gives me no pleasure to note that I am not the first tribunal to have reached that view of the claimant. In the Employment Appeal Tribunal decision of 21st October 2002, having considered the "very strong allegations" made by the claimant about the Employment Tribunal Members, the Tribunal then went on to make this finding:
"It seems to us that the applicant is unable to distinguish between extremes. As he put it this morning, there is nothing in between the truth and the lie. But, of course, there is. There is the appreciation between different, honest people of what is happening in front of them. There is room for mistake. There is room for misunderstanding. There is room for exaggeration. None of these constitutes lying, but do produce different results in the eyes of the beholders."
For the reasons which I have given, I am unable to disagree with this summary and its pertinence to the claimant. It is entirely in accordance with my own impression of the claimant, and in particular his dogged persistence in the belief that everybody not excluding tribunal members and judges was not telling the truth except him.
F. THE CLAIMANT'S CASE ON HARASSMENT
I propose, for completeness, to go through each of the claimant's allegations of harassment (set out verbatim at paragraph 2 above) and make the relevant findings of fact. I also deal with the extent to which those allegations could, as a matter of fact or law, be regarded as harassment in accordance with the principles set out at section C above. The paragraphs referred to in the headings below are references to the subparagraphs of paragraph 7 of the particulars of claim.
F2. Allegation 1 - The Dinner (Paragraph 7(a))
The factual background is set out at paragraph 39 above. There is no evidence before me that any team dinner took place and no evidence that Mr. Kim ever said that the claimant felt that he did not fit in. The claimant was entirely reliant in relation to those allegations on what he was supposedly told by someone else who was not a witness and from whom there was no statement.
I find on the balance of probabilities that there was never going to be a team dinner as such; that there was never a formal dinner at all; and that Mr. Kim did not say to the other team members that the claimant felt that he did not fit in. Those findings are based on the following:
(a) The absence of any evidence of the dinner or Mr Kim's alleged statement about the claimant;
(b) The absence of any plausible motive on the part of Mr. Kim, who had only just met the claimant, in making such a statement;
(c) The absence of any reference to this incident in any document provided by the claimant during his time with the defendant company;
(d) The absence of any reference to this incident in the claimant's own formal complaint e-mail of 6th June 2001.
In addition, I find as a fact that this matter was not raised orally by the claimant with Mr. Spearing at any time, and certainly not when the claimant was in Dublin, or at the meeting on 8th January 2001.
In a normal situation, if the claimant had thought that Mr. Kim had made a remark of that nature about him, then he would have sought out Mr. Kim for an explanation and would have endeavoured to resolve then and there what appears, in some ways, even on the claimant's own case, to be a relatively trivial matter. The claimant was emphatic that at no time did he raise this matter with Mr. Kim. In my judgment, that was the best evidence that the event simply did not occur.
If I am wrong about that, and the dinner happened and/or the statement was made by Mr. Kim, then I have to ask whether it could amount to conduct that was deliberately calculated to alarm or distress the claimant. There is no evidence of a deliberate decision on the part of Mr. Kim to cause alarm and distress on the part of the claimant. How could there be when the statement allegedly made at the dinner was not even made to the claimant? There is no evidence that the claimant even assuming that he got to know of the statement, even assuming that it was made ever considered that it was harassment. There is also no evidence of alarm or distress on the part of the claimant as a result. Indeed, since he did not raise the matter with Mr. Kim, it is impossible to see how it could have caused him alarm or distress.
Accordingly, if, contrary to my findings of fact, the allegation at paragraph 7(a) was supported by evidence, it would not, in my judgment, amount to harassment in any event for the reasons I have given.
F3. Allegation 2 - The Account (Paragraph 7(b))
The factual background is set out at paragraph 41 above. There is no evidence before me concerning this incident beyond the claimant's oral assertion. I find as a fact that this matter was not raised orally by the claimant with Mr. Spearing at any time and certainly not when the claimant was in Dublin or at the meeting on 8th January 2001. It was not referred to in any document provided by the claimant whilst he worked for the defendant and it did not even feature in the claimant's lengthy statement from the original Employment Tribunal proceedings. In the light of my serious reservations as to the claimant's credibility I am not persuaded that the incident happened at all.
If I was wrong about that and it did happen, then I am quite satisfied that the decision made by Mr. Kim was an operational one and had no effect on the claimant who was, in any event, able to make alternative arrangements in relation to the particular application with one of his colleagues. The claimant's suggestion that Mr. Kim was "setting me up to fail" by this conduct was wholly without foundation. I reject any suggestion that, if this incident happened, it was deliberately calculated to alarm or distress the claimant or to set him up to fail. Again, Mr. Kim would simply have had no motivation to want a team member on an important project, for whom he was responsible, to "fail". In addition, there is no evidence that the claimant ever considered that this matter assuming that it happened caused or could have caused him alarm or distress.
The allegation is therefore not made out on the facts. If I am wrong about that, then the claimant's case, even if right, falls far short of harassment under the 1997 Act.
F4. Allegation 3 Lateness/Shouting (Paragraph 7(c))
The factual background is set out at paragraphs 42, 44 and 50 above. It is plain that Mr. Kim was concerned about the claimant's lateness and the claimant accepts that he was late on a number of occasions. In my judgment, neither the quantity of late arrivals at work, nor the quality of the claimant's excuses for such lateness, can be of any real relevance to the alleged harassment. Mr. Kim was plainly entitled to take the claimant to task if he thought (as he clearly did) that the claimant was too late too often.
If there was cogent evidence of a course of conduct by Mr. Kim that was designed to humiliate the claimant over his lateness, such as shouting, swearing and threatening behaviour, then that might constitute harassment although, as I have already pointed out, it will not always do so: see Bank v. Ablex. But there was no such evidence, not even from the claimant himself. He was unable to remember what Mr. Kim had said and how often these alleged incidents had taken place. As to the shouting, Ms. Jolly makes the point (I think correctly) that the claimant was to allege later that a member of the Employment Tribunal shouted at him. That allegation was investigated and rejected as untrue by the Employment Appeal Tribunal. I accept, therefore, her suggestion that the claimant is unable if he so chooses to distinguish between a firm voice and shouting. Even more tellingly, the claimant did not raise these matters at any time with Mr. Spearing in October or November or at the meeting on 8th January. He did not even raise them as allegations in the Employment Tribunal, despite the fact that Mr. Kim was named in those proceedings as the second respondent.
Accordingly, this allegation is unsupported by the evidence and contradicted by the documents. In addition, I reject the contention that it was deliberately calculated to cause the claimant alarm and distress. Again, there is no evidence of that. Indeed, in respect of this allegation, there is no evidence at all other than the fact of the claimant's admitted lateness. I reject any suggestion that it was regarded at the time by the claimant as harassment or that it caused him or could have caused him alarm or distress.
F5. Allegation 4 The Change in Accommodation (Paragraph 7(d))
The factual background is at paragraph 43 above. There is no dispute that the claimant was moved from a hotel to an apartment. Although the claimant's argument on this point in the Employment Tribunal focused on the move itself, in his cross-examination the claimant appeared to accept that he did not rely on the move to an apartment as evidence of harassment. To the extent that he did, I reject such an allegation.
In his oral evidence the claimant laid emphasis on the fact that the hotel staff were rather brusque with him when he was moving out of the hotel. But it is not clear how that could possibly have been Mr. Kim's responsibility. Moreover, since the suggestion (that the manner in which he was moved was in some way harassment) was a new allegation, the defendant was unable to obtain the necessary instructions from Mr. Kim. Again, given the difficulties with the claimant's credibility, I do not accept the claimant's new case which seeks to emphasise the circumstances in which the move took place, and I certainly absolve Mr. Kim of any responsibility for those circumstances.
The other matter relied on by the claimant was the fact that the apartment was unhygienic. As had been pointed out by Ms. Jolly in opening, that could only be an allegation of harassment if it could be shown that Mr Kim knew or ought to have known that it was unhygienic and had deliberately put the claimant into the apartment anyway. There was no such evidence. The claimant argued that Mr. Kim was very friendly with the apartment's previous occupant who was an American engineer. But there was nothing to say that Mr. Kim had any idea as to what state the apartment was in when that engineer left. Indeed, it seems to me that the fact that Mr. Kim was prepared to put the claimant into the apartment previously occupied by his friend, who had a relatively senior position on the project, demonstrated eloquently that the move could not be described as harassment.
Accordingly, this allegation fails on the facts. Even if I was wrong about that and the claimant's case on the facts was proved in every particular, I have no hesitation in finding that the move was not deliberately designed to alarm or distress the claimant, did not and could not have caused him alarm and distress and was not regarded at the time by the claimant as harassment. The fact that the claimant did not raise this matter or seek to complain about it either during his employment with the defendant or with Mr. Spearing, and did not first raise it until the Employment Tribunal proceedings, demonstrates to me that the entire allegation is bogus and not one which could be regarded as harassment in any event.
F6. Allegation 5 The E-mail of 10th November 2000 (Paragraph 7(e))
The factual background is set out at paragraphs 44 and 50 above. I have really dealt with this allegation at paragraphs 72 to 80 above where I reach various conclusions as to the reliability of the defendant's contemporaneous documents. The e-mail of 10th November was an accurate summary of Mr. Kim's concerns about the defendant which were shared, as he makes plain, by other members of the team. The e-mail was written with the sole purpose of demonstrating how and why, for the benefit of the Dublin Project, the claimant had to be replaced.
There is no evidence that the e-mail was anything other than a product of Mr. Kim's operational role as the supervisor of the Dublin Project. It is fanciful to suggest that the contents of the e-mail which the claimant did not even know about could amount to harassment under the Act. Since it was confidential, it could not have caused the claimant alarm and distress and could not have been intended to cause him alarm and distress. I should make plain that I reject the suggestion that the claimant saw this e-mail at any time prior to the Employment Tribunal proceedings.
The harassment allegation based on this e-mail is therefore misconceived for the reasons that I have given and it fails at every level.
F7. Allegation 6 The Cancelled Holiday (Paragraph 7(f))
The factual background is set out at paragraph 46 above. I find that:
(a) The request for volunteers to give up their holiday was made on 20th November at a time when, in accordance with the contemporaneous documents, there had been no confirmation that the claimant was going to be removed from the Dublin Project. It was a possibility, but no more than that. It was therefore reasonable to include the claimant in the list of those requested to give up their holiday. Indeed, to omit him from that list would have been awkward and embarrassing, because it would have indicated that his time on the project might be coming to an end.
(b) The claimant volunteered to give up his holiday. There was no evidence that the claimant was nominated to do so by Mr. Kim. I reject any such suggestion.
(c) When the claimant was removed from the Dublin Project he took his Christmas and New Year holiday in any event: the time sheets show that. Thus, although this point was raised in his complaint e-mail of 6th June, what was said in that e-mail (where it was suggested that the claimant had not taken that holiday) was incorrect. Further, and in any event, as part of his redundancy package the claimant was also paid for that holiday.
(d) Thus, on the face of the contemporaneous documents, the claimant took the holiday that he complained that he missed, and was paid as if he had worked that holiday.
Thus, on these facts, this event could not be regarded as evidence of harassment in any event. Although it is the only one of the six allegations that found its way into the e-mail in 6th June, as I have explained, it was there as a complaint about money and was, for the reasons that I have given, incorrect in any event.
For those reasons, therefore, the allegation at paragraph 7(f) fails.
F8. Allegations 1 to 6 Course of Conduct
Allegations 1 to 6 all involve Mr. Kim. A further question which I have to answer is whether these allegations, even if established on the facts, and even if they amounted to harassment (both of which points I have rejected) amounted to a deliberate course of conduct on his part. There is no evidence that they did. Mr. Kim was involved in a difficult and demanding project. Whether rightly or wrongly, he perceived that, for a variety of reasons, the claimant was not doing what he needed to do to play his part in the team on that project. Mr Kim's various decisions were reasonably taken as part of his ongoing managerial functions. They were not part of any deliberate course of conduct aimed at the claimant, much less a course of conduct aimed to alarm or upset him.
F9. Allegation 7 The Change in March 2001, Paragraph 7(g)
The factual background is set out at paragraphs 58 to 61 above. The claimant had been working for Mr. Sims on the Cable & Wireless Project since some time in late January. He was working on the infrastructure team doing job shadowing and his wages were therefore being paid by the defendant rather than being reimbursed by Cable & Wireless. For one week only, from 19th to 25th March, the claimant was moved to the process and procedures team, also a part of the Cable & Wireless Project. Mr. Page, as I have indicated, thought that that was so that the claimant could cover somebody else's holiday. It was the only week of the claimant's time at Cable & Wireless which was actually billable.
The claimant alleges that this short period (and this move from one part of the Cable & Wireless Project to the other) amounted to harassment on the part of Mr. Page. His suggestion was in precisely the same terms as he used about Mr. Kim, namely, that Mr. Page was "setting him up to fail". As I have indicated, he also suggested that his reinstatement on the infrastructure part of the team was at the behest of his former colleagues. Needless to say, there was no evidence of any of that.
I reject absolutely the notion that transferring an employee from one part of a project to another, with the result that, for a week at least, that employee was actually earning income for his employer could, in these circumstances, amount to harassment. It certainly did not amount to harassment in this case. Contrary to the claimant's complaint, Mr. Page was not setting up the claimant to fail and had no motive or interest in so doing. He was simply covering for a colleague who was away for a week. In addition, I note that the claimant did not complain about the transfer to Mr. Page at the time and did not mention it in his only complaint e-mail of 6th June. For the reasons I have given, I find that he did not mention it to Mr. Matthews on 13th June. It was therefore regarded at the time by the claimant himself as being a matter of no consequence at all. As I previously indicated, if employers were faced with the allegation of harassment every time they made this sort of operational decision, then the commercial world would shudder to a halt.
For the avoidance of doubt, I reject any suggestion that Mr. Page's decision to transfer the claimant to another part of the Cable & Wireless Project was calculated to cause him alarm or distress, did cause him or could have caused him alarm and distress, and was in any way unreasonable or an act of harassment.
F10. Allegation 8 The Threatening Phone Calls (Paragraph 7(h))
The factual background is set out at paragraphs 62 and 63 above. The claimant's evidence in cross-examination was that, although he could not remember what was said in these phone calls, they threatened his job security. He also said that they were made once or twice a day, including at weekends. That was a new allegation. Mr. Page denied ever making threatening calls to the claimant, and explained that it was simply his practice to speak to every member of his team on the phone once a week, and to go through any matters which had arisen. By May, because the claimant was working away in Swindon and there were concerns about his performance (see paragraphs 60 to 63 above), Mr. Page thought that he would have discussed these concerns on the telephone with the claimant during that period. Thus, far from being threatening, Mr. Page was raising his concerns directly with the claimant, in order that they could be addressed without the need for disciplinary proceedings.
As I pointed out to the claimant during his cross-examination of Mr. Page, the allegation concerning the threatening phone calls was extremely serious. The fundamental difficulty with it was that, not only was the claimant unable to give any coherent evidence about the content of the calls and why he considered them to be threatening, it was also not a matter that the claimant had raised in his formal complaint e-mail of 6th June. As I explained to him, by 6th June it was clear to the claimant that he was probably going to be made redundant. Therefore, by then, he had no reason to hold back from complaining about anything with which he was unhappy. If threatening phone calls had been made, the e-mail of 6th June was the right time and place to make the relevant complaint. That was its very purpose. The claimant wholly failed to make any such complaint in that e-mail. His only explanation of why it was not in the e-mail of 6th June, namely, that it was an oversight, I am unable to accept. I should also say, for the reasons which I have explained, I accept Mr. Matthews' evidence that this complaint was not then raised in the subsequent telephone call on 13th June either.
The complete absence of any evidence to support the claimant's assertion is the first reason why I reject the allegation on the facts that Mr. Page made threatening phone calls to him. The second reason is that I conclude that such calls would have been wholly out of character for Mr. Page who, during his cross-examination, demonstrated that he was a patient and caring man who was determined to help the claimant whenever he could and who bent over backwards to avoid the claimant being put on a PIP in April and May 2001.
The serious allegation at paragraph 7(h) might have constituted conduct that would have been classified in law as harassment, but only, of course, if it had occurred. For the reasons which I have given, the allegation was, on investigation, palpably untrue. There were no threatening phone calls. Thus I find myself unable to disagree with Ms. Jolly's submission that, in all the circumstances, this particular allegation, being so serious and being so unfounded, was not only made without any merit but was made with malice. The allegation is rejected.
F11. Allegation 9 The Move to Swindon (Paragraph 7(i))
The factual background is set out at paragraphs 62 to 63. That is where I set out the detailed explanation that Mr. Page gave me as to why the claimant was moved to the defendant's own laboratories in Swindon. I find that the decision was an entirely reasonable operational decision and was taken with the express purpose of training the defendant in a relatively risk-free environment. It was, on any view, the complete opposite of harassment.
In these circumstances it was wholly unclear to me how or why the claimant regarded this transfer to Swindon as harassment in any event. His main complaint seemed to be that he did not regard the laboratory in Swindon as a Proof of Concept Lab. But Mr. Page explained why it was such a facility. Moreover, as Mr. Page himself remarked, that was surely a difference between the two men which was merely semantic.
For the avoidance of doubt, I find that, not only was the decision to send the claimant to Swindon a reasonable operational decision to assist the claimant, but it was also not calculated to cause the claimant anxiety and distress. On the contrary, it was intended to allow him to obtain the experience that he so badly needed.
Accordingly, the allegation at paragraph 7(i) must fail as a particular of harassment. In this context I should set out the very last part of Mr. Page's evidence in cross-examination, given late in the afternoon/evening of 30th October, when he said that he regarded the move to Swindon as the "perfect solution" to the problems created by the claimant, because it kept the claimant "from the high risk that we would otherwise have with a customer". Mr. Page went on to say that the motivation behind the move was because:
"My sole object was to further engineers' careers, to try and avoid having an unhappy and disappointed team. I like my team to be the strongest. I wanted the best team I could get. I wanted to be the best manager. I therefore moved the claimant to Swindon to help him."
F12. Allegations 7 to 9 Course of Conduct
The three allegations 7 to 9 involve Mr. Page. I have to consider whether the allegations, even if they were right on the facts and amount to harassment (both of which contentions I have rejected) amount to a deliberate course of conduct on his part. Again, there is no evidence that they did amount to such a course of conduct. For the reasons that I have given, I conclude that they did not.
F13. The Claimant's Belief in the Harassment Allegations
It is appropriate, finally, to deal with the separate submission made by Ms. Jolly that, on the evidence, it was plain that at the time the claimant never believed that he had been harassed either by Mr. Kim or by Mr. Page and never indicated that he had suffered distress or alarm as a result of the behaviour about which he now complains.
For the reasons which I have been through at length, I accept the submission that the claimant never regarded the conduct of which he now complains as harassment and did not suffer anxiety or distress in consequence of the conduct. That explains why the claimant never complained about that conduct or made any specific allegations to that effect in the Employment Tribunal. As was apparent during his cross-examination of Mr. Page, the claimant was much more interested in trying to re-open his dismissal and race claim than he was in proving the so-called allegations of harassment. That is because, in my judgment, the link between the claimant's psychiatric disorder and his employment by the defendant can plainly be seen to arise out of his redundancy and dismissal by the defendant company in the early summer of 2001. I conclude that it was not these unfounded allegations of harassment which gave rise to the disorder: it was the fact of the claimant's redundancy. That is a claim which has already been considered and already been dismissed.
The allegations of harassment were not established on the facts. They were, in any event, incapable of constituting harassment in accordance with the Act. I consider that the allegations were doomed to fail and I regret that they were ever made. I consider that they were wholly without merit. In addition, I consider that the serious allegation at paragraph 7(h) (threatening phone calls), must, in the circumstances, have been made maliciously.
G. THE CLAIMANT'S CASE IN NEGLIGENCE
The claimant's pleaded case alleges, in the alternative, that the defendant was negligent in allowing the various events underlying the harassment allegations to occur. Given the terms of my rejection of those allegations, it must follow that the negligence case fails too.
In any event, as explained to the defendant at the outset of the trial, the allegations in negligence were always going to be more, rather than less, difficult to establish because they required the claimant to demonstrate that it was foreseeable to the defendant that the alleged conduct would cause him psychiatric injury (see paragraphs 32 and 33 above).
The evidence is that the claimant himself did not discover that he might be suffering from a psychiatric disorder until 27th July 2001, which was after he had been made redundant. If the claimant did not know that he had such a disorder until that point, it was not explained how or why the defendant should somehow have foreseen that the consequences of the conduct complained of would have been the triggering of that disorder. In other words, there was simply no evidence that the disorder was or could have been foreseeable to the defendant. The negligence claim would therefore fail on that ground too.
I should add that, at one point, the claimant said that he was told at his medical consultation with his GP in January 2001 that he was suffering from stress. He appeared to be relying on that to demonstrate that in fact he did discover his psychiatric disorder whilst he was still employed by the defendant and that that was somehow relevant to foreseeability. The difficulties with that argument are, I think, myriad:
(a) If the claimant was aware of a psychiatric disorder in January 01, his negligence claim is statute barred. It is only the July date that allows the claim to survive the three-year limitation cut off date.
(b) The GP notes and other contemporaneous records indicate that the claimant was treated in January 2001 for a chest complaint and sore throat. There is no reference in the GP notes to stress.
(c) Even on the claimant's case and even assuming, therefore, that he was told in January 2001 that he was suffering from stress, he did not tell the defendant that, either in January or at any time thereafter. It has never been suggested that the defendant should somehow have been able to work this out for themselves, given that the claimant had not passed the information on to the defendant either orally or in writing.
Accordingly, although I reject the claimant's alternative case as to the date on which he discovered his psychiatric disorder, I consider that, if it were right, the negligence claim would still fail.
The claimant's claim in these proceedings was brought as a way of re-trying his failed race discrimination and dismissal claims. It is those claims which have always concerned the claimant and which, from the evidence that I have seen, triggered the onset of his psychiatric disorder. The claimant never considered that he had been harassed and never made any relevant complaints to that effect at the relevant time.
The documents show that the defendant took careful and reasonable operational decisions which were designed to assist both the defendant and the claimant. They were the complete opposite of harassment.
The allegations of harassment were wholly without merit and, in my judgment, should never have been brought. The gulf between the allegations and the reality was demonstrated by allegation 7(h) the threatening phone calls by Mr. Page which I can only conclude was brought maliciously.
The negligence allegations fail for the same reason, with the additional point that, even on the claimant's case, his psychiatric disorder could not have been regarded as reasonably foreseeable to the defendant.
The claimant's difficulties in respect of his representation at this trial were entirely foreseeable and were self-inflicted. They have not ultimately made any difference whatsoever to either my consideration or my rejection of this claim.
The claimant's claim is therefore dismissed.
Postscript: Immediately after I handed down this Judgment on the afternoon of 1 November 2007, the associate handed up to me a fax, dated 31 October, from a Dr Akbany of the Chatfield Medical Centre in SW11. The short note concerned the claimant, and stated that he was suffering from anxiety and depression. It was therefore entirely in accordance with the agreed medical evidence in this case (see paragraph 4 above). The note also stated that the claimant's decision to represent himself "is putting undue stress on him with resultant deterioration in his mental health". That, of course, was both foreseeable and self-inflicted (see paragraphs 20 and 21 above). In the circumstances, I read out the faxed note to Ms Jolly and recorded my view that, for the reasons that I have already given, the note from Dr Akbany made no difference at all to my conclusions set out at section B above.
- - - - - - - - - - - - -
Note 1 See the postscript at paragraph 139 below. [Back]
Copyright Policy |
Donate to BAILII