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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Woodhead v WTTV Ltd & Anor [2025] EWHC 1128 (KB) (12 May 2025) URL: https://www.bailii.org/ew/cases/EWHC/KB/2025/1128.html Cite as: [2025] EWHC 1128 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ANDREW  WOODHEAD | Claimant |
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-and- |
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| (1) WTTV LIMITED ((2) NBC UNIVERSAL INTERNATIONAL LIMITED |
Defendants |
____________________
ANDREW WARNOCK KC (instructed by Clyde & Co.) for the Defendants
Hearing dates: 21-24 January & 4-5 February 2025
____________________
VERSION OF JUDGMENT APPROVED
Crown Copyright ©
MR JUSTICE SWIFT
A. Introduction
Woodhead was employed by WTTV Limited as its Managing Director. WTTV Limited is in the business of developing, producing, funding and distributing television programmes. By letter dated 8 November 2019 Mr Woodhead was given the six months' notice required under his terms and conditions of employment to terminate his employment. His employment was terminated by reason of redundancy that was consequent on WTTV's reorganisation of its operations.
Woodhead was required to attend a meeting with Richard Taylor the Director, Fair Employment Practices, and Sara Swinney a Director, Human Resources. Both Mr Taylor and Ms Swinney were employed by NBC Universal International Limited. NBC Universal International Limited is the majority shareholder in WTTV Limited. It provides corporate services to WTTV Limited including human resources services. This was the reason why Mr Taylor and Ms Swinney conducted the meeting with Mr Woodhead on 28 November 2019. At the meeting, Mr Taylor told Mr Woodhead that complaints had been made against him by a freelance writer who had worked for WTTV Limited and with Mr Woodhead. In these proceedings this freelance writer has been referred to as NPQ. The complaints were complaints of sexual harassment. They had been made by NPQ at a meeting with Ms Swinney on 20 November 2019. At that meeting, NPQ had provided a written statement of her complaint. Later the same day she provided further information in support of her complaint by email to Mr Taylor, in response to questions he had sent to her. At the meeting with Mr Woodhead on 28 November, Mr Taylor did not give Mr Woodhead any written statement of the complaints that had been made. Rather, at that meeting, Mr Taylor put various matters to Mr Woodhead orally and required him to respond to them. The meeting was lengthy. After the meeting, Mr Taylor and Ms Swinney left Mr Woodhead to confer with Katy Gater, a solicitor employed by NBC Universal International Limited in the position of Vice-President Employment Law. Mr Woodhead was required to wait. When the meeting with Mr Woodhead resumed, Mr Taylor told Mr Woodhead that he was suspended from work. Mr Woodhead was given a letter (dated 27 November 2019) which informed him that he was being suspended pending investigation of the allegations made by NPQ "… that amount to a breach of our Respect in the Workplace Policy".
Woodhead remained on suspension until his employment came to an end on 8 May 2020 pursuant to the notice of termination in the letter dated 8 November 2019. The matters that had been set in train at the meeting of 28 November 2019 continued throughout that period and beyond. A disciplinary decision on the allegations first raised at the 28 November 2019 meeting was contained in a document dated 23 September 2020 described as the decision of Oliver Canning (who was employed by NBC Universal International Limited as its Chief Legal Counsel). That decision document was sent to Mr Woodhead on 25 September 2020. In large part, the time taken to conclude the disciplinary process was due to Mr Woodhead's poor health. In these proceedings expert psychiatric evidence has been provided by both parties: Dr. Jonathan Ornstein instructed on behalf of Mr Woodhead; Dr. James Briscoe instructed on behalf of the Defendants to the claim. It is common ground that as at November 2019 Mr Woodhead suffered from long-standing psychiatric conditions. Since 1991 Mr Woodhead had been a recovering alcoholic and had regularly attended Alcoholics Anonymous ("AA") meetings. He also suffered from compulsive sexual behaviour disorder. He had experienced episodes of anxiety and depressed mood, and episodes of self-harming. As treatment, since 1992 Mr Woodhead has been in therapy, and since 2006 under the care of Dr. Madeleine Clarke, a chartered psychologist.
Woodhead became very unwell and received treatment from Dr. Clarke, his GP Dr. Sera Shoukru, and from Dr. Justin Basquille, a consultant psychiatrist. From Tuesday 3 December 2019 Mr Woodhead was signed off work suffering from depression and anxiety. By 11 December 2019 Dr Basquille had concluded that Mr Woodhead was suffering from an "adjustment disorder … which severely affects his ability to function …". On 13 December 2019 Mr Woodhead was admitted to the Nightingale Hospital for treatment as an in-patient. Mr Woodhead was discharged as an in-patient in January 2020 but continued to be treated at the Nightingale Hospital for a further seven weeks as an out-patient. Mr Woodhead remained signed off from work sick throughout the period until the beginning of May 2020 when his contract of employment came to an end.
Woodhead brings three claims against WTTV Limited seeking damages for psychiatric injury. The first cause of action relied on is misuse of private/confidential information either by NPQ for which WTTV Limited is vicariously liable, or by WTTV Limited itself. The second cause of action is in negligence. Mr Woodhead contends that as his employer, WTTV Limited owed a duty of care that it would not in the course of his employment expose him to an unreasonable risk of foreseeable psychiatric injury. Mr Woodhead's case is that the conduct of the investigatory and disciplinary process that started on 28 November 2019 gave rise to breaches of that duty. Thirdly, Mr Woodhead relies on the same matters – the conduct of the investigatory and disciplinary process – as comprising a breach of the obligation implied into every contract of employment not to act so as to damage or destroy the necessary relationship of trust and confidence. In practice, the cause of action in contract adds nothing to the negligence claim. Mr Ryan, counsel for Mr Woodhead, accepted that there was no basis on which the claim in contract could succeed in the event the claim in negligence failed. Further, it seems to me that in the event the negligence claim succeeds, Mr Woodhead would not be better placed were he also to succeed on the contract claim. In short, on the facts of this case, and because the premise of the negligence claim is a duty of care arising as between employer and employee, it is unnecessary to consider Mr Woodhead's contractual claim.
B. The disciplinary complaints
Woodhead was not provided with a copy of the NPQ's complaint either before or at the meeting on 28 November 2019, a copy of the complaint and a document setting out further information provided by NPQ in response to the written questions that had been put by Mr Taylor was sent to Mr Woodhead's solicitors on Monday 9 December 2019. The documents were sent by Katy Gater. Mr Woodhead had instructed solicitors, Messrs Teacher Stern, on 29 November 2019 and from that time most of the communication between Mr Woodhead and WTTV Limited went via James Baker the solicitor who acted for Mr Woodhead.
(1) Comments made by Mr Woodhead to NPQ from June 2017 when they spoke to each other about a script for a television programme that Mr Woodhead was interested in developing ("programme 1"). Mr Woodhead and NPQ first met around this time. Mr Woodhead spoke to NPQ about his alcoholism and it became apparent that both attended AA meetings. NPQ attended some meetings that Mr Woodhead recommended to her, and on some occasions, they spoke after these meetings. On one occasion when Mr Woodhead gave NPQ a lift from Holborn to King's Cross, he told NPQ that he was aware that a member of her family had committed suicide (in 2006). Mr Woodhead then claimed that he knew NPQ better than she knew herself.
(2) Comments made by Mr Woodhead around January 2018. By this time NPQ was preparing a television adaptation of a book. WTTV Limited had an option to produce the programme ("programme 2"). Around this time Mr Woodhead said he felt "a connection" with NPQ and described her as "crazy" and "mad" (using these terms to refer to instincts Mr Woodhead believed they had in common that explained the connection between them).
(3) Comments made by Mr Woodhead at a meeting on 27 April 2018 at a café called "The Pantry". Mr Woodhead and NPQ had met there to discuss her proposal for a television adaptation of a book ("programme 3"). During this meeting, which lasted an hour, NPQ said that Mr Woodhead had made various comments including that he was "acting out sexually" in his private life and told her about a meeting he had had with an actress. NPQ said Mr Woodhead had referred to the actress as "pretty" and spoke about her in "disrespectful terms" suggesting that the actress's ideas were "delusional" and "insane". Mr Woodhead said he had wanted to be inappropriate with the actress but had not. NPQ said Mr Woodhead told her he now considered NPQ to be a "friend in recovery", and said she was like another writer he knew who was also traumatised and in need of healing.
(4) Comments made by Mr Woodhead after a meeting in November 2018 when he walked with NPQ from the office to a tube station. The meeting had concerned another idea for another television programme ("programme 4"). NPQ said that during the walk Mr Woodhead spoke about his sex life and about a prostitute he had met when working in New Zealand and showed NPQ a short video of her. NPQ also said Mr Woodhead sent a text a few days later explaining his feelings for the prostitute he had met. A few days after that Mr Woodhead sent NPQ a poem he had said he had also sent to the prostitute.
(5) A joke made by Mr Woodhead when he walked with NPQ to the tube station in November 2018 that he had used company money to pay for the prostitute and that he had asked NPQ whether that had been a good idea.
Woodhead provided a detailed written response to the complaints in June 2020. He accepted that he did make some of the comments. Others he denies were ever made. So far as concerns the comments he accepted were made, he denies any of them amounted to harassment of NPQ. He considered NPQ a friend and a fellow addict. He considered they could speak freely to each other. He considered their conversations to be private matters.
C. Decision: the breach of privacy/confidentiality claim
Woodhead's case rests on the cause of action recognised in Campbell v MGN Limited [2004] 2 AC 457. In Campbell, the House of Lords recognised a modified form of the tort of breach of confidence to protect private information from unlawful disclosure. The cause of action rested on principles derived from ECHR article 8 but was tempered by principles derived from ECHR article 10. The circumstances considered in Campbell were far removed from those in this case. In Campbell a newspaper published articles disclosing a celebrity's drug addiction and attendance at meetings of Narcotics Anonymous and published photographs of her outside Narcotics Anonymous meetings. The newspaper had obtained some of the information published from "friends" of the celebrity, likely to have been either members of the celebrity's entourage or someone who had attended the same Narcotics Anonymous meetings. The claimant claimed that publication of the details of her attendance at therapy meetings and of the photographs amounted to a breach of confidentiality.
Woodhead's case is put in two ways. First, that NPQ's disclosure of private information about him to WTTV Limited when she made her complaint on 20 November 2019 was a breach of his privacy, and that WTTV Limited is vicariously liable for that breach. The second way the claim is put is that when NPQ disclosed Mr Woodhead's private information to WTTV Limited, the company became subject to an obligation owed directly to Mr Woodhead to maintain the privacy of the information and it breached that obligation by relying on the same information for the purposes of the disciplinary proceedings taken against Mr Woodhead.
Woodhead's personal life that NPQ relied on when she complained to WTTV Limited, which was then used by WTTV Limited in the disciplinary proceedings against Mr Woodhead, was private information. Mr Woodhead's evidence is that when he passed that information to NPQ he had a reasonable expectation that the information would remain confidential because of the friendship he believed to exist arising from their common experience as persons recovering from addiction. I accept his evidence on this matter. Mr Woodhead and NPQ met through work in June 2017 when WTTV Limited was considering whether to develop a television programme NPQ had worked on. The evidence was that from time to time thereafter they met to discuss possible work projects: in January, April and November 2018. However, I accept that after June 2017 their relationship was not simply a professional relationship. Both Mr Woodhead and NPQ were recovering alcoholics and because of this he took an interest in her. He suggested Alcoholics Anonymous meetings that NPQ might attend, and on occasions they saw each other at and after those meetings. Mr Woodhead clearly considered this shared experience to be important and it was this that caused him to talk to NPQ about his private life and how his addictions affected his private life. It follows that I accept Mr Woodhead's submission that NPQ's complaint to WTTV Limited involved disclosure of his private information.
WTTV Limited for the limited and specific purpose of making a complaint under the company's "Providing a Respectful Working Environment" policy ("the policy"). In the submissions there was debate about whether either NPQ or the matters she raised fell within the scope of the policy. I am satisfied NPQ did fall within the scope of the policy. The policy expressly covers "harassment by or of non-employees (such as … freelancers …) in connection with their engagement or business with the company ...". The policy did therefore envisage the possibility of complaints by freelance workers (such as NPQ) against WTTV Limited employees. The complaints NPQ made were sufficiently connected with the freelance work for WTTV Limited that it was reasonable for her to form the view they could be the subject of a complaint under the policy. The comments she relied on may not have been made during meetings on WTTV Limited's premises but there was a sufficient connection between the matters she complained of and her involvement with WTTV Limited's business. For these reasons, NPQ's complaint was a legitimate use of the policy. Her complaint was to the effect that Mr Woodhead's discussion of details of his private life with her was unwelcome, had made her feel uncomfortable and, that Mr Woodhead had taken advantage of his position as WTTV Limited's managing director to burden her with information about his sex life that she did not want to hear.
Woodhead disagrees that anything he says or did amounted to harassment of NPQ it is not his case that NPQ's complaint was not a genuine complaint. The Amended Particulars of Claim at paragraph 16 contends that the allegations raised were "intended to harm the Claimant". But that does not amount to an allegation that NPQ acted in bad faith. Rather it goes to a different matter: namely that NPQ must be taken to intend the ordinary and foreseeable consequences of her actions – i.e. that she would (or ought to) have realised that both making the complaints and the fact of the complaints themselves would cause harm to Mr Woodhead. In reaching this conclusion I have had well in mind that it is clear from the documents concerning the meeting between NPQ and Ms Swinney on 20 November 2019 that NPQ wished to present her complaint to best effect; in the way that would get WTTV Limited's attention. NPQ described her complaint to align it with "# me too" complaints, suggesting hers was the sort of complaint of particular concern to a media company such as WTTV Limited. To the same end, the notes of the meeting 20 November 2019 record NPQ referring to "Harvey Weinstein", notwithstanding that on any analysis her complaint concerned matters of an entirely different order. However, I do not consider that NPQ's obvious desire to maximise the impact of her complaints on WTTV Limited was such as to mean either that she acted for an improper purpose or that the disclosure she made was disproportionate for that purpose.
Woodhead's case that WTTV Limited misused his private information fairs any better. The claim directly against WTTV Limited must fail because: (a) when NPQ disclosed Mr Woodhead's private information to WTTV Limited she did not act in breach of any duty of confidence that could be imputed to WTTV Limited; and (b) notwithstanding that WTTV Limited was aware that Mr Woodhead considered NPQ's complaint rested on private information that ought not to have been disclosed, WTTV Limited's use of that information to investigate the complaint NVQ had made was a justified use.
WTTV Limited took in reliance on the information provided were consistent with the policy. The policy envisages that the person who is the subject of the complaint will be interviewed as part of an investigation. The policy also anticipates that the person who is the subject of a complaint may face disciplinary action. Considered in general terms the steps that the WTTV Limited took in response to NPQ's complaint – investigating the complaint by interviewing Mr Woodhead and then based on the conclusions reached by Mr Taylor proceeding to a disciplinary hearing, pursued a legitimate objective and were proportionate. WTTV Limited did not use the private information for any other purpose. Even though the way in which WTTV Limited conducted the investigation and disciplinary process is open to criticism (as set out below) I do not consider those criticisms affect the conclusion that WTTV Limited's use of Mr Woodhead's private information was justified.
Woodhead's submission that WTTV Limited was vicariously liable for NPQ's breach of any obligation of confidentiality or misuse of private information. Had it been necessary for me to consider this issue I would have concluded that WTTV Limited was not vicariously liable. The principles are summarised in Lord Burrows' judgment in BXB v Barry Congregation of Jehovah's Witnesses [2024] AC 567. At paragraph 58 of his judgment Lord Burrows identified a two stage test; first was there a contract of employment between the defendant and the tortfeasor, or was the relationship "akin to employment" (which Lord Burrows later referred to as "quasi-employment"); second, was the tortfeasor's wrongful conduct so closely connected with what the tortfeasor was authorised to do on behalf of the defendant that, fairly and properly, the tortfeasor was acting in in course of the employment or quasi-employment.
WTTV Limited. However, I infer from the evidence there is concerning the proposals for television programmes that NPQ worked on during 2017 and 2018, that her work was genuine freelance work rather than any form of disguised employment or working relationship akin to employment. In her complaint, NPQ referred to working on 4 projects over an 18-month period. Each project was relatively short-lived. Two of the projects concerned NPQ's ideas to adapt books into television programmes. She pitched to gain WTTV Limited's support but was unsuccessful. On another occasion NPQ said she approached WTTV Limited with an idea for a programme. In his response to the complaint Mr Woodhead disputed this saying he had approached NPQ and the idea for the programme was his. However, for this purpose that is not to the point because on either version, any work NPQ did would have fitted a typical freelance work pattern. On the fourth occasion NPQ worked on developing a script for a television programme. On each occasion NPQ was represented by an agent. There is nothing in the nature of the work or the arrangements for it that suggests the existence of a contract of employment or of any working relationship akin to employment. In these circumstances, any claim that WTTV Limited was vicariously liable for NPQ for any breach of confidence or misuse of private information arising from the complaint she made against Mr Woodhead would have failed at stage one of Lord Burrows' test.
Woodhead's claim for breach of confidentiality and /or misuse of private information fails, and is dismissed.
D. Decision: the negligence claim
(1) General
WTTV Limited treated Mr Woodhead when investigating NPQ's complaint in the disciplinary procedure. This covers events between the meeting on 28 November 2019 and the end of September 2020.
Woodhead, and Ms Gater and Ms Swinney on behalf of WTTV Limited, and then from Paul Fontes, a solicitor at Eversheds, a firm instructed by WTTV Limited for a period in April and May 2020 who during that period corresponded with Mr Baker. In addition to the evidence of Mr Woodhead, I have heard evidence from Alexander Caldwell, the solicitor employed by NBC Universal International Limited who attended the investigation meeting on 28 November 2019 to take a note of that meeting, from Katy Gater, and from Oliver Canning. The submissions for Mr Woodhead drew attention to witnesses who were not called – in particular, Mr Taylor and Ms Swinney, and suggested I draw inferences from this. I do not attach significance to the absence of either of these people; even if significance were to be attached, I am unclear what inferences on any matter material to Mr Woodhead's negligence claim could be drawn simply by reason of their non-appearance as witnesses at this trial.
WTTV Limited during the trial. There can be no question that all the documents disclosed during the trial ought to have been disclosed as part of WTTV Limited's general disclosure exercise. The late disclosure included a previously unidentified version of the "matrix document" that had first been prepared by Mr Taylor after his meeting with Mr Woodhead on 28 November 2019, and drafts of the disciplinary decision made by Mr Canning in September 2020. These new documents cast the evidence given by Ms Gater and Mr Canning, respectively, in a very different light.
Vice-President, Litigation. That statement explains that shortly after this litigation commenced, WTTV Limited moved its instructions from Eversheds to Clyde & Co. and explains – in very general terms – the steps taken to meet the general disclosure obligation. No specific explanation is provided for why the documents disclosed during the trial were not identified, listed and disclosed in the usual way, at the usual time. From what is said there was nothing in the circumstances of the change of representation from one firm of solicitors to another that could explain the situation. That change occurred shortly after the proceedings commenced and ought to have presented no difficulty at all in terms of compliance with the usual requirements of a disclosure exercise. The failure to disclose the documents that were disclosed during the trial at the proper time can only have occurred because either the Defendants or the solicitors instructed in the litigation, or both, failed to take the steps ordinarily required to comply with the obligations in CPR Part 31.6 and 31.7, or failed to take the steps required with ordinary diligence, care and attention.
(2) Legal principles
v Sutherland [2002] ICR 613 and Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 512. Paragraph 43 of the Court of Appeal's judgment in Hatton is a touchstone, and is an authority for the following propositions. Although no special principles apply to claims for damages for psychiatric injury arising from employment, such a claim will not succeed unless it was reasonably foreseeable that the employee bringing the claim could suffer an injury to health attributable to stress at work. Reasonable foreseeability depends on what the employer knew or ought reasonably to have known. An employer may assume that an employee will withstand the usual pressures of a job "unless he knows of some particular problem or vulnerability". The "indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise he should do something about it". When the risk of harm is foreseeable, the obligation is to take reasonable care to prevent or reduce the harm. This obligation can (and may often) require the employer to take positive steps, for example by making adjustment to procedures or courses of action the employer might ordinarily follow. The employer will only be in breach of its duty of care when it "failed to take the steps that are reasonable in the circumstances bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicality of preventing it and the justifications for running the risk". Those steps it is said ought to have been taken must be ones that if taken, would have done some good. It is for the claimant to show that the breach of duty has caused or materially contributed to the harm suffered. When the harm suffered has more than one cause, damages should reflect only the proportion of the harm attributable to the wrong doing save where the harm is "truly indivisible", and any assessment of damages must take account of any pre-existing disorder or vulnerability.
(3) The date of reasonable foreseeability
WTTV Limited that Mr Woodhead could suffer such harm to his health from stress at work as a result of this disciplinary procedure. The difference between the parties on this issue is slight. The submission for Mr Woodhead is that the relevant date was 3 December 2019. Just before 6pm that day, Mr Baker emailed Ms Gater enclosing a medical certificate provided by Dr Shoukru. The certificate stated that Mr Woodhead would be unfit for work for a month (until 3 January 2020) by reason of "depression and anxiety impacted significantly by work accusations". In his email, Mr Baker said that a further letter from Dr Shoukru would follow explaining: that Mr Woodhead suffered from a long-term and serious condition which had affected him during the period covered by NPQ's complaints; that Mr Woodhead was presently unfit to participate in a disciplinary process; and that when the disciplinary process did commence Mr Woodhead would need the support of his psychologist.
WTTV Limited is that the relevant date was the next day, 4 December 2019. At 11:52 am Mr Baker sent a further email, this time enclosing a letter from Dr. Clarke, Mr Woodhead's psychologist. That letter explained that Mr Woodhead was a recovering alcoholic (something I find likely that WTTV Limited already new) and that Dr. Clarke had treated him since 2006. Dr. Clarke explained that Mr Woodhead's trips to New Zealand on business at the end of 2018, and then again during 2019, had affected his health. She addressed the effect on Mr Woodhead of the meeting with Mr Taylor on 28 November 2019.
"This traumatic event has destabilised Mr
WTTV's Limited submission on this point. It is Dr. Clarke's letter that provided a clear narrative that the meeting on 28 November 2019 had a traumatic effect on Mr Woodhead causing a relapse of his depressive illness, requiring treatment, and highlighted the need for that treatment to be provided before any disciplinary process could be continued. From the time that letter was received, there could be no reasonable doubt that WTTV Limited was on notice not only that Mr Woodhead suffered from a long-standing and significant mental illness, but also of the risk that his health could be affected by continuing the disciplinary process.
(4) The conduct of the disciplinary process
Woodhead's case is that from its outset, on 28 November 2019, and thereafter, the conduct of the disciplinary process was flawed. This is the premise for the further submission WTTV Limited acted in breach of its duty to take reasonable care not to cause him psychiatric injury.
Woodhead is that there were significant failings in the way the disciplinary process was conducted. I accept this submission in the following respects.
very unwelcome to Mr Woodhead. However, the way in which matters were handled on 28 November 2019 meant that the occasion was particularly traumatic for him. The most striking feature is that the meeting on 28 November 2019 was conducted as an investigatory meeting rather than simply one at which Mr Woodhead was informed of the existence of the complaints, notified of the matters relied on against him, and then suspended pending formal investigation (which would have included an opportunity for him to respond to the complaints, at a later meeting). Such a course of action would have been consistent with what is permitted under the NBC Universal International disciplinary procedure, the procedure that was used for the purpose of the disciplinary action.
Woodhead, informed him that a complaint had been made against him and instructed him to attend a meeting with Mr Taylor, immediately. She provided no details of the complaint. On Mr Woodhead's arrival, Mr Taylor conducted what he described as a "fact finding" meeting. A note of the meeting was made by Alex Caldwell, who had been instructed to attend the meeting to take a note. The note does not record how long the meeting lasted. However, it seems likely from the timing of the events that followed that the meeting lasted several hours. Mr Woodhead was not given any written notice or summary of the complaints that NPQ had made. Instead, Mr Taylor explained her complaints and asked Mr Woodhead a series of questions on each to obtain his response. Mr Woodhead clearly found the process intensely distressing. In his witness statement Mr Woodhead described the effect of the meeting on him as follows.
"106. I have had three smaller dissociative experiences in my adult life, where I felt under attack in a small way, when I felt dissociated, but only for
107. I left the meeting not knowing what had happened or what it was being alleged I had done. I was reeling."
WTTV made for the meeting on the 28 November 2019 was that Mr Woodhead was confronted with allegations that were both serious and intimate, and expected to respond to them without notice. There was no reason why matters had to be dealt with in this way; there was nothing that required urgency or a response on 28 November 2019 rather than one a few days later. Ms Gater's evidence was to the effect that the approach taken when dealing with Mr Woodhead on 28 November was "normal" for WTTV Limited. Be that as it may, it was not the approach to be expected of an employer acting reasonably. The way in which matters were handled on 28 November had a particularly severe impact on Mr Woodhead and on his mental health.
WTTV Limited's conduct immediately following the meeting on Thursday 28 November until the evening of Wednesday 11 December 2019 when Ms Gater agreed to put the disciplinary process on hold when it became apparent that Mr Woodhead would be hospitalised.
Woodhead was concerned that he did not understand what was being said to him or alleged. In that email, Mr Baker referred to Mr Woodhead being under continuing "acute personal and professional stress"; stated that Mr Woodhead was speaking to his GP and his psychologist; and stated that Mr Woodhead might be suffering from a disability.
Woodhead. Mr Gater's response to requests for further time to comment in response to the complaint was not the response to be expected of an employer acting reasonably. At 13:00 on Monday 2 December she replied to Mr Baker's request to reschedule the investigatory meeting. She refused the request but stated she would allow Mr Woodhead until close of business on Wednesday 4 December to comment on Mr Taylor's investigation report – a document that, at that time, had not yet been sent to Mr Woodhead. The investigation report, which in these proceedings has been referred to as the "matrix document", was sent by Ms Gater under cover of a further email at 14.25. In that email she restated the close of business Wednesday deadline. There was no sufficient reason for that deadline. While it is always better for disciplinary matters to be concluded sooner rather than later, there was no cause for urgency in the circumstances of this case. In her evidence, Ms Gater suggested that 2 days was sufficient for Mr Woodhead "to respond to allegations he has already commented on in detail". However, that overlooked that matters put to Mr Woodhead at the meeting on 28 November had been put to him without notice, something Ms Gater would have had well in mind because she had been closely involved in the arrangements for the events of 28 November. Moreover, although the matrix document had been provided in the afternoon on Monday 2 December, by that time Mr Woodhead had still not been provided with any written statement of the complaints made against him or the matters relied on in support of those complaints. Those documents were not provided until a week later under cover of an email by Ms Gater, sent just before noon on Monday 9 December.
Woodhead to respond to the contents of the matrix document. However, just before noon on Monday 9 December she wrote to Mr Baker chasing for the comments in response to the matrix document suggesting that they should have been provided by Friday 6 December. This was done notwithstanding that: (a) Ms Gater's email on 4 December had said nothing about such a deadline; (b) she had, on Monday 2 December, rejected out of hand Mr Baker's offer to provide comments by Friday 6 December; and (c) it was only under cover of the email sent on 9 December that Ms Gater provided copies of the written statement of NPQ's complaint and the further information NPQ had provided in support of the complaint.
Woodhead's health to be assessed by WTTV Limited's occupational health service, no doubt with a view to that service providing an opinion on whether Mr Woodhead was fit to participate in the disciplinary process at all. The matter fell into abeyance only by the evening of Wednesday 11 December when it became apparent that Mr Woodhead's doctors had recommended he be treated as an in-patient at the Nightingale Hospital.
Woodhead, as to how much of the complaint against him remained live for the purposes of the disciplinary process. This became apparent only after the late disclosure had been provided in the course of the trial. The late disclosure first began to emerge during Ms Gater's evidence. The matrix document was a table prepared by Mr Taylor after his meeting with Mr Woodhead on 28 November 2019. Mr Taylor sent a version of the document to Ms Gater at 13:14 on Friday 29 November, referring to it as his "initial draft". One column in the document set out Mr Taylor's summary of NPQ's complaints. Another column a summary of the response given by Mr Woodhead at the 28 November meeting. In a third column, Mr Taylor set out his "findings". Following the usual disclosure exercise the impression given was that in the version of the matrix document sent by Mr Taylor to Ms Gater on 29 November the "findings" column was left blank and that the same document had then been sent by Ms Gater to Mr Baker at 14:25 on Monday 2 December.
version of the matrix document sent by Mr Taylor to Ms Gator on 29 November included Mr Taylor's conclusions which were set out in the column headed "findings". Some of these conclusions were favourable to Mr Woodhead. Mr Taylor recommended no further action on the first of the complaints (see above at paragraph 7). On one part of the second complaint Mr Taylor concluded that the matters relied on did not amount to harassment. Mr Taylor also concluded there was "no evidence" to support the fifth complaint (see above at paragraph 7). Consequently, it became clear that the version of the matrix document sent by Mr Taylor to Ms Gater was not the same as the version then sent by Ms Gater to Mr Baker. In the version sent to Mr Baker the "findings" column was blank. This situation became apparent while Ms Gater was giving her evidence. At that time, unconfirmed meta data for the version of the matrix document with the blank "findings" column suggested that that version of the document had been created by Ms Gater shortly before she sent it to Mr Baker. When asked about this Ms Gater said she "did not recall" when she got that version of the matrix document but stated that she had not made any changes to the version of the matrix document Mr Taylor had sent to her on 29 November. By the next day of the hearing Mr Gilfillan's statement was available. That statement explained the reasons for the late disclosure. In the that statement Mr Gilfillan confirmed that the meta data for the version of the matrix document sent by Ms Gater to Mr Baker showed that the document had been created by Ms Gater at 14.13 on Monday 2 December, had been modified by her at 14.21 and then sent by her to Mr Baker at 14.25. WTTV Limited made no application to recall Ms Gater.
version of the matrix document sent to Mr Baker by deleting information from the version of that document Mr Taylor had sent to her – i.e. deleting what Mr Taylor had written in the "findings" column. I do not accept that Ms Gater could have done this and then forgotten about it. I have concluded that the evidence Ms Gater gave in relation to the creation of this version of the matrix document was not truthful.
Woodhead's claim, the significance is that WTTV Limited decided not to tell him – as it could have done on Monday 2 December or any time after – that part of the complaint against him had been dismissed. In this way WTTV Limited gave, and throughout the conduct of the disciplinary process continued to give, a false impression of the extent of the matters that Mr Woodhead had to respond to. Had the accurate position been stated (whether on 2 December 2019 or at any time thereafter) that might have reduced the stress that Mr Woodhead suffered.
WTTV Limited attempted to pursue the disciplinary process even though Mr Woodhead remained on sick leave. On 27 January 2020 Mr Woodhead sent Ms Swinney a sick certificate covering a period of two months from 23 January 2020. The certificate, provided by Dr. Shoukru stated as follows.
"Medical concern: post-traumatic stress disorder with emotional dysregulation, anxiety and depression.
Acute reactive depression with suicidal ideation requiring recent inpatient stay. Ongoing input from psychological therapies and psychiatrist.
…
Duration: 2 months to continue treatment and then review again."
Woodhead (rather than Mr Baker) had sent the doctor's note and asking whether she could correspond with Mr Woodhead. Mr Baker replied later that day saying:
"Andrew asks that you deal with him directly for now, he will decide if and when to refer back to me or his doctors."
On 12 February 2020 Ms Swinney wrote to Mr Woodhead:
"Thank you for sending us a doctor's note; we were pleased to hear that you are now out of hospital.
We would like to conclude our investigation into the allegations made by [NPQ]. Whilst you attended an investigatory interview with Richard Taylor and responded to all of his questions, you had indicated that you would like to add to this account. You had previously indicated that you were keen to cooperate with our internal process and accordingly, we would like to give you the opportunity to either provide written representations or alternatively, attend a further meeting with Richard.
Please can [you] indicate your preference by email within the next 7 days. I will be on annual leave next week, so if you can respond to Sarah Leslie in my absence, she can determine next steps."
On 13 February 2020, Mr Baker wrote to Ms Gater pointing out that Mr Woodhead was certified unfit for work and was continuing to receive treatment as an out-patient. His email then continued as follows:
"The fact [Mr
If [
Ms Gater replied on 18 February 2020, requiring Mr Woodhead to provide any further comments on the matrix document. Ms Gater's email included the following:
"For the reasons we have already explained, most notably, the ongoing distress of the complainant, it is reasonable for us to now require your client to provide us with any further comments on the investigation. He may do so in writing, by telephone or in person. If his doctor advises there is anything we can do to facilitate the further participation he has requested, please let us know."
WTTV Limited's actions in February 2020 were neither necessary nor reasonable. It ought to have been clear from the medical certificate that Mr Woodhead was not fit to continue the disciplinary process. Had there been doubt on that matter WTTV Limited could either have sought clarification or further information from Dr. Shoukru or resumed the process that had been started in early December 2019 to refer Mr Woodhead for an occupational health assessment. The requirement in Ms Swinney's email that Mr Woodhead state within 7 days whether he wished to respond to the points set out in the matrix document in writing or at a further meeting, was neither necessary nor reasonable.
WTTV Limited compensate her for financial loss. The email does not suggest any form of "ongoing distress"; rather it is a very lucid and clear-headed document. Later correspondence from NPQ, in early March 2020, is in similar vein. At this time NPQ continued to press WTTV Limited for compensation for financial loss she claimed she had suffered. Eventually, a compromise was agreed at the beginning of June 2020. There is nothing in any of the correspondence I have seen that suggests that NPQ continued to suffer any significant distress.
WTTV Limited through Eversheds, the solicitors then instructed by it, pursued an entirely pointless course of action attempting to require Mr Woodhead to submit to an assessment by occupational health advisors. Throughout the period Mr Woodhead remained certified sick by his own doctors. The certificate provided by Dr. Shoukru dated 23 January 2020 covered a 2-month period. Dr. Shoukru provided a further certificate on 18 March 2020. This was for a further period of 2 months. The information provided on the certificate was as follows:
"Medical concern: post-traumatic stress disorder with emotional deregulation, anxiety and depression.
Ongoing treatment as an inpatient has been delayed due to COVID-19."
This certificate prompted a letter from Paul Fontes, a solicitor at Eversheds, to Mr Baker. Mr Fontes stated that Dr. Shoukru had not stated that Mr Woodhead was unfit for work or to participate in the disciplinary process and requested Mr Woodhead agree to be assessed by WTTV Limited's occupational health advisors. This course, at this time, was entirely pointless since COVID lockdown regulations meant that WTTV Limited's occupational health advisors could not meet Mr Woodhead face to face. The best that could be achieved was an interview by video call, something that would, of itself, be highly unlikely to afford the occupational health advisors any information that was sufficient to assess Mr Woodhead's state of health. In reply, Mr Baker suggested further information be sought from Dr. Shoukru. Mr Fontes continued to insist that an occupational health appointment be made. In an email sent on 21 April 2020 he stated:
"As you know, it is absolutely standard practice for employers to ask employees to attend medical assessments undertaken by their Occupational Health advisors in cases of long-term ill health. In almost all such cases, the individual will have been certified as unfit to work by their GP. There is therefore nothing unusual or inappropriate about what our client is requesting.
Indeed, as you will have seen, both your client's contract of employment and our client's sickness absence policy expressly provide for our client to ask your client to attend such assessment. Our client wants to obtain its own medical opinion on your client's ability to attend a disciplinary hearing and it is absolutely entitled to do so."
Mr Fontes' email reveals no consideration of Mr Woodhead's particular circumstances, or of the fact that the lockdown restrictions would significantly impair the quality of any information the occupational health advisors might obtain, or of the potential benefit to WTTV Limited of seeking further information from the doctors who had treated Mr Woodhead since December 2019. In short, this approach, which I assume to be taken in pursuit of instructions given by WTTV Limited, is a triumph of form over function.
"Mr
The experience of being suspended from work without understanding or compassion on the part of his employers, has been traumatising.
For the past three months he has been in psychotherapy and under treatment both as an inpatient, hospital day patient and outpatient.
He is currently awaiting further inpatient treatment.
He remains on psychotropic medication, necessitated by his depressive collapse. He is unfit to work and is likely to be so until he has had sufficient treatment, which is currently ongoing while inpatient care becomes available.
It would be inimical to his health and well-being to be interrogated about his fitness to work as this time and he is unlikely to be fit for some months."
It does not seem that Mr Fontes sent any reply. In her evidence, Ms Gater referred to seeing the letter from Dr. Basquille and deciding that since the notice period that would terminate Mr Woodhead's contract of employment by reason of redundancy was about to expire, no further action should be taken. The next letter from Mr Fontes, dated 7 June 2020, did not address the occupational health issue.
Woodhead's behalf, I do not accept the further submissions made for him concerning other matters said to comprise failings relevant to whether WTTV Limited acted in breach of its duty of care. One general point advanced was the absence of any risk assessment of the possible effect on Mr Woodhead of the disciplinary process. It is correct that no formal risk assessment process was followed. However, in the circumstances of this case that is more a matter of form than substance. Decisions on whether and how to proceed with the disciplinary process were taken, from time to time, based on such medical and other evidence that was available. In large part, the purpose of any formal assessment process is to gather and then consider relevant information. The present case was not one in which there was a lack of relevant medical evidence. Medical evidence from Dr. Shoukru, Dr. Clarke, and Dr. Basquille was available and was regularly updated. Mr Woodhead also had the benefit of legal representation so that, throughout the relevant period, formal representations were also made on his behalf as to whether and if so in what way the disciplinary process should proceed. All this being so, the lack of any formal assessment in this case is not a matter of any substance. Rather, the decisions taken, from time to time in the disciplinary process, can be considered on their own merits.
Woodhead next relied on the fact that WTTV Limited only agreed to suspend the disciplinary procedure by reason of his ill health on Wednesday 11 December 2019. The submission for Mr Woodhead was that this should have happened sooner – either on or shortly after Tuesday 3 December. In this regard I note that by the early afternoon Wednesday 4 December, having received medical information provided by Dr. Shoukru and Dr. Clarke, WTTV Limited began to take steps to arrange for Mr Woodhead to be assessed by its occupational health advisors. The purpose of that was to establish whether Mr Woodhead was fit to participate in the disciplinary process. The process of making that referral to occupational health remained in progress on 11 December and at that time was overtaken by the news that Mr Woodhead was to be hospitalised for in-patient treatment.
Woodhead's ill health was apparent to WTTV Limited only from around 4 December 2019. From that time, it was reasonable for WTTV Limited to take the course that it is seeking to obtain an opinion from its occupational health advisors on Mr Woodhead's ability to participate in the disciplinary process.
Woodhead relied on the way the final decision in the disciplinary process was taken in September 2020. There was no disciplinary hearing as such, but that was because Mr Woodhead remained unwell and it had been agreed he could provide a written response to NPQ's complaints, which would stand as his reply to the allegations. That document was provided on 17 July 2020. The decision on the disciplinary process was taken on consideration of documents.
version of the report to Mr Canning. This was a heavily revised version of his original document. Following further emails with Ms Gater, Mr Canning accepted substantially all the changes, and the final version of the decision was settled by 23 September 2020. Overall therefore, the decision making was a much more collaborative process than first appeared. A much more straightforward explanation of the course taken should and could have been given both in WTTV Limited's original disclosure and in Mr Canning's written witness statement. However, I am not satisfied that any of this was such that it amounted to any failure to take reasonable care vis-à-vis Mr Woodhead's health. The approach taken to the decision-making process was unusual, but not improper. Moreover, the way in which the decision was taken was not known to Mr Woodhead until receipt of the late disclosure during the trial.
(5) Breach of duty
WTTV Limited of its obligation that arose on 4 December 2019, to take reasonable care to prevent or reduce injury to Mr Woodhead's health. The closing submissions for Mr Woodhead identified five breaches of that duty. First, the fact that the disciplinary process which had been started on 28 November 2019 was not suspended to take account of Mr Woodhead's ill health until 11 December 2019. Second, the failure, whether on 2 December 2019 or at any time thereafter, to provide to Mr Woodhead a copy of the matrix document which reflected the decisions that Mr Taylor had taken that certain of the complaints made by NPQ should not proceed to a disciplinary hearing. (The specific point here is that WTTV Limited failed to inform Mr Woodhead that Mr Taylor's decision was that two of the five matters raised as complaints by NPQ should not proceed to a disciplinary hearing and that part of a third of the complaints also should not proceed further.) Third, it is contended that Ms Swinney's request to Mr Woodhead on 12 February 2020 to state within 7 days whether he wished to provide any further response to the disciplinary complaints in writing or at a meeting amounted to a breach of WTTV's Limited duty of care. Fourth, it was submitted that WTTV Limited had acted in breach of its duty of care by failing to undertake any form of risk assessment when deciding how to proceed with the disciplinary process. Fifth, it was submitted that the disciplinary decision communicated in September 2020 was taken unfairly or incompetently.
WTTV Limited. However, I accept the submissions for Mr Woodhead on the second and third matters.
WTTV Limited's conduct (primarily the actions of Ms Gater) between Thursday 28 November and Wednesday 11 December 2019 when the disciplinary process was put on hold; (3) the attempt to restart disciplinary process in early February 2020; and (4) the attempt in April 2020 to require Mr Woodhead to attend a video call with WTTV Limited's occupational health advisors.
WTTV Limited of a duty of care owed to Mr Woodhead. The events took place before 4 December the date when the risk of harm to Mr Woodhead from the disciplinary procedure became reasonably foreseeable.
WTTV Limited acted in breach of its duty of care to Mr Woodhead by not agreeing to suspend the disciplinary procedure until 11 December 2019.
Woodhead that WTTV Limited did act in breach of its duty of care when it failed to inform Mr Woodhead that Mr Taylor had decided that no further action should be taken on some of NPQ's complaints (i.e. the first and fourth complaints in the matrix document and part of the second compliant in that document). This was the deliberate decision of Ms Gater. Although she sent the matrix document to Mr Baker on 2 December (before it was reasonably foreseeable that Mr Woodhead's health could be affected by continuing the disciplinary process), Ms Gater could have provided the accurate position at any time thereafter. Moreover, as the extent of Mr Woodhead's ill health became apparent from 4 December and in the following days it would have been a reasonable and appropriate step for WTTV Limited to make it clear that Mr Tayor had decided that the disciplinary procedure would only consider part of the complaints made by NPQ.
Woodhead that WTTV Limited acted in breach of its duty of care to Mr Woodhead by requiring him, on 12 February 2020, to state, within 7 days, whether he wished to respond to the complaints against him in writing or at a further meeting. For the reasons set out above at paragraphs 44 – 47, this was not a reasonable course of action.
Woodhead that WTTV Limited acted in breach of its duty of care either: (a) by failing to undertake a risk assessment; or (b) by the way in which the decision in the disciplinary process was taken in September 2020. This is for the reasons above at paragraph 50 and paragraphs 54 – 55, respectively.
WTTV Limited's insistence in April 2020 that Mr Woodhead be assessed by its occupational health advisors by video call amounted to a breach of its duty of care to Mr Woodhead. This is for the reasons above at paragraphs 48 – 49.
(6) Causation
Woodhead, and Dr. James Briscoe instructed on behalf of WTTV Limited. They agree that Mr Woodhead became emotionally distressed following the meeting on 28 November 2019; that the symptoms Mr Woodhead displayed by 4 December 2019 amounted to a recognisable psychiatric injury; and that the symptoms and the distress persisted and were the reasons why Mr Woodhead was admitted to the Nightingale Hospital for treatment on 13 December 2019. Dr. Ornstein and Dr. Briscoe further agree that the symptoms Mr Woodhead displayed following the meeting on 28 November and thereafter are "best diagnosed" as an adjustment disorder. An adjustment disorder is a mental and behavioural disorder defined by a maladaptive response to a psychosocial stressor – i.e., a response that is more intense than usual to the stressor event, resulting in any of serious distress, preoccupation with the stressor event, and/or functional impairment.
Woodhead had a pre-existing vulnerability to develop an adjustment disorder. Prior to November 2019, Mr Woodhead had a complex psychiatric history which rendered him vulnerable. Further, as at the end of November 2019 he was subject to various other stresses arising from his work, and from his family circumstances.
Woodhead's hospitalisation on 13 December 2019. By the "events of 28 November 2019" I include the communication to Mr Woodhead that a complaint had been made against him, that the complainant was NPQ, and what I have referred to as the "bad handling" of the meeting that took place on that day (see above at paragraphs 32 – 34). I do not consider it is realistic to attempt to separate any of these matters from each other. All were part and parcel of a single event. Nor has it been suggested that any attempt should be made to seek to distinguish between the effect on Mr Woodhead of the events of 28 November 2019 and the effect of the other stresses affecting him at that time, or the effect of his pre-existing vulnerability to develop an adjustment disorder.
WTTV Limited of its duty of care, made any material contribution to the harm Mr Woodhead suffered.
Woodhead to indicate within 7 days whether he wished to provide any further response to NPQ's complaints in writing or at a further meeting) materially added to the injury Mr Woodhead suffered either by exacerbating or prolonging the adjustment disorder that had arisen in late November/early December 2019. Although Ms Swinney's 12 February 2020 email was sent to Mr Woodhead, it is apparent that he quickly handed the matter over to Mr Baker. It was Mr Baker who responded on his behalf the next day and thereafter it was dealt with either by Mr Baker or Ms Culshaw. In evidence, Mr Woodhead describes the distress he felt when he received Ms Swinney's email. I accept that receiving the email would have been a sharp reminder to Mr Woodhead that the disciplinary procedure based on NPQ's complaints against him still existed and still needed to be addressed. However, I do not consider the distress caused by the 12 February 2020 email was likely to have been long-lasting, independently of the distress that continued in consequence of the events of 28 November 2019. This was not, therefore, the cause of any material contribution to the injury Mr Woodhead suffered.
WTTV Limited in April 2020 to require Mr Woodhead to be assessed by its occupational health advisors. This matter arose in emails between Mr Fontes and Mr Baker and did not go further than those emails. Mr Woodhead's evidence was that at this time Mr Baker did not show him the email exchanges with WTTV Limited; usually communicated with Mr Woodhead through his doctors; and would only contact Mr Woodhead directly when he felt he really needed to. Mr Woodhead did not, therefore, see Mr Fontes' emails. Mr Woodhead said that in late April 2020 he was told of the request for the occupational health assessment. But by then the exchange of emails on this matter had largely ended. The final email was sent by Mr Baker on 24 April 2020. There is no evidence that his episode had any significant impact on Mr Woodhead. I do not consider it made any material contribution to the injury Mr Woodhead suffered.
WTTV Limited's failure on or after 2 December 2019 to inform Mr Woodhead that the scope of the allegations in the disciplinary procedure had narrowed because Mr Taylor had decided that some of the matters raised by NPQ would not continue to be treated as live issues in the disciplinary process.
WTTV Limited became apparent following the late disclosure which occurred only after the expert evidence had been given. Neither party sought permission to recall its expert witness to give further evidence on this matter. However, part of Dr Ornstein's evidence is relevant and, in my view, important. At paragraph 198 of his written report, Dr. Ornstein set out his opinion that the initial shock of the complaints made against him on 28 November 2019 caused Mr Woodhead to "breakdown" and to display the symptoms that resulted in his hospitalisation on 13 December 2019. The report then continued at paragraph 199.
"These difficulties were then prolonged and worsened by what [Mr
Dr. Briscoe did not share this view. His view was that the main source of Mr Woodhead's distress was and remained the complaints themselves and the fact the complaints had been made by NPQ. I accept Dr. Ornstein's evidence on this point: that both the events of 28 November 2019 and Mr Woodhead's perception that he had not been heard or understood contributed to the existence and duration of the psychiatric condition that developed. WTTV Limited's failure to tell Mr Woodhead that part of the complaint against him would not be pursued as a disciplinary matter was therefore significant. Had Mr Woodhead been given that information that would have demonstrated to him that his response to the complaints was being heard and understood. I am satisfied that WTTV Limited's failure (continuing after 4 December 2019) to inform Mr Woodhead that the scope the of the disciplinary proceedings against him had narrowed did materially contribute to the psychiatric injury that Mr Woodhead suffered.
Woodhead that the scope of the disciplinary process had narrowed, there is no reason to conclude that that event should, for this purpose, be treated any differently from any other event occurring during this disciplinary procedure. Thus, it is not appropriate to apportion damages. On the evidence in this case, there is no principled basis on which the harm arising from the failure to inform Mr Woodhead that the scope of the disciplinary procedure had narrowed, can be distinguished from the other harm suffered by Mr Woodhead from 28 November 2019. On the evidence in this case, the injury is indivisible.
E. Conclusion
Woodhead's claim for breach of privacy/confidentiality fails and is dismissed. To the extent explained above, Mr Woodhead's claim in negligence succeeds. The evidence and submissions heard to date have addressed only the issues of foreseeability, breach of duty of care, and causation. Matters concerning quantum have not been addressed. I would be grateful if the parties could seek to agree such directions as are necessary for the purposes of getting to a hearing that will deal with all outstanding issues.