“You should be aware that your appointment is not on salaried tenure terms and that the FCO retains discretion (through the Selection Boards and usual performance management processes, and where it is deemed necessary for operational reasons) to withdraw any Head of Mission from his/her post if he/she falls short of acceptable levels of performance and delivery. Our selection procedures are robust and we should not expect that this will have to be the case very often. As Head of Mission you are, of course, entitled to fair treatment accompanied by the same principles of effective performance management that we expect to be applied elsewhere in the organisation.”
“This is exceptional and should only be considered where there is no alternative and the costs are justified. The following are the possible grounds: …”
“23. Suspension on full pay whilst an allegation of misconduct is being investigated should be a last resort. It should only be considered for cases where gross misconduct may be involved and either: • there is a breakdown in trust which cannot be resolved until the disciplinary process has run its course or • the nature of the allegation is such that it would make it difficult for the staff member to continue working or • there is a risk to other people or • there is a risk that evidence might be tampered with or • there is a risk of unauthorised disclosure of official information or • there is a risk to FCO property or • to allow a short cooling-off period while consideration is given to the next steps. 24. The reasons for any suspension must be fully explained to the individual. It must be made clear that the suspension is not in itself disciplinary action and that no judgement has been made regarding the allegation/s against them. A letter confirming suspension must be given to the individual or, if this is not possible, sent to them within three working days. 25. Any suspension must be regularly reviewed to ensure it is still necessary and that the period of suspension is not unnecessarily protracted.”
“As I explained earlier, we have received multiple allegations about bullying and harassment from internal and external stakeholders. This had been collected both before and during the Review process. We do not believe that these allegations are malicious. We have not received any formal complaint. But, based on the weight of this evidence, I rang this afternoon to give you an informal warning that such behaviour would not be tolerated by an FCO officer. If I received any further complaints, I would be obliged to start a formal investigation.”
“23. Mr Wood spoke to Mr Courtenay on the telephone on 10 June. (Mr Courtenay had declined to speak to Dr Kane since he did not regard her as sufficiently senior.) Mr Wood summarised what Mr Courtenay had told him in an email (“the Wood email”) which he sent the same day to Ms Le Jeune, Mr Evans, Dr Kane and Mr Rankin. In the Wood email the claimant's behaviour, and its consequences, were as follows: (1) at private events the claimant had acted inappropriately with women, including touching Mrs Denise Courtenay’s bottom, and so people were no longer prepared to invite him to events; (2) the claimant was having a relationship with a member of staff at the Ministry of Foreign Affairs of Belize and, consequently, was held in little respect there; (3) the claimant was not joining in diplomatic events in Belize and thus the wider diplomatic community was developing a negative view of him; (4) he, Mr Courtenay, had declined to attend events at the High Commission during the visit of an FCO Minister, Meg Munn MP; (5) that the claimant had adopted an inappropriate tone with the Belizean Prime Minister, seeming to summon him to an event; (6) Mr Courtenay was “picking up messages” that the claimant was treating staff in the High Commission appallingly; his colonial approach was not appropriate to the modern world; and (7) he, Mr Courtenay, thought that the claimant's approach to work was superficial, he was simply not seen about town and he was not known to be building contacts. Mr Courtenay commented that the sooner the claimant left Belize the better. For his part he would not be inviting the claimant to future events. 24. .... 25. As recorded in the Wood email, Mr Courtenay professed that he was a friend of the United Kingdom and concerned with the impact on its reputation in Belize of the claimant's behaviour. UK-Belize relations were not “in a good place”, an assessment which Mr Wood accepted in his evidence at trial was a judgement which was not justified. Mr Wood told Mr Courtenay that the FCO would be considering how it could best deal with this state of affairs, which it had already been concerned about before his approach. The email then read: “His [Mr Courtenay’s] views chime very much with the general messages that we are getting and confirms to me that we need to take steps – in line with our procedures – to remove [the claimant] from post … I conclude that we are now suffering real reputational damage from the claimant’s behaviour and that we must now bring this to a head.”
“Although the local staff and Eamon Courtney [sic] have made the allegations on a private and confidential basis and would not want their names disclosed, we decided that the evidence presented showed that John’s behaviour was completely unacceptable and was bringing the reputation of HMG into disrepute in Belize. We decided that you had enough evidence to withdraw John from post with immediate effect pending an investigation. John is at present on leave. We will make efforts to obtain a contact telephone number for you. Failing that, you or Chris Wood would contact him on his return to Belmopan to instruct him to return to London immediately.”
“It is not recorded in the email, but I accept the evidence of those attending the meeting, that consideration was given to alternatives to withdrawing the claimant from post. However, no support is given by the others at the meeting to Mr Rankin's recollection that they also discussed the impact of a withdrawal on the claimant personally.”
“[These] allegations, though serious, are based only on Mr Courtenay’s account, and there is mitigating evidence to suggest that John behaved properly and correctly in public. So the evidence against John is not strong, but needs to be considered further.”
“Fair treatment in this case obliged the FCO to conduct some preliminary investigation of the allegations which Mr Courtenay had levelled against the claimant before taking the decision to withdraw. In addition, fair treatment obliged the FCO to inform the claimant of the allegations and to take into account his critique of them.” (3) There had been no such preliminary investigation, and the allegations had not been put to the Claimant: the purpose of Ms Le Jeune’s meeting with him on13 June 2008 had been to inform him of a decision which had already been taken. (4) There was no sufficient reason for those omissions. In particular, the Judge rejected the argument that the FCO was obliged to maintain the confidentiality of Mr Courtenay as its informant. He said, at para. 118: “Fair treatment in this case trumped confidentiality, which could not override the very important right of the claimant to know what was alleged against him and to have his responses fairly evaluated before a judgment was made. In any event any politician like Mr Courtenay prepared to make this type of allegation would appreciate that ultimately the source would become known more widely, as indeed it did within a few weeks.”
“If, indeed, speed was of the essence the FCO should have exercised some critical judgment about the content of the allegations and their source. Fair treatment, at the very least, demanded this. A preliminary check of Mr Courtenay's allegations of sexual misconduct would have cast a shadow over them. These were the allegations which Mr Wood perceived as damaging the United Kingdom's reputation, not the treatment of staff within the High Commission. In my view, however, while there was a need for speed, disclosing the nature and source of the Courtenay allegations to the claimant would not have slowed down the process in any significant way. The claimant was not due back in Belize until17 June 2008 and there was no reason why his leave could not have been extended for a few days.” (5) If a preliminary investigation had occurred, and the allegations had been put to the Claimant, it would very soon have transpired that Mr Courtenay’s allegations were suspect. At paras. 122-123 the Judge gave full reasons why that was so. I need not set them out in detail, because they were not challenged as such, but they include: the discrepancies between Mr Courtenay’s allegations as made to Mr Spires and to Mr Wood; his self-evidently over-stated allegations about the poor state of relations between the UK and Belize; the fact that the allegations about his conduct with women were stale and had not been made by anyone in the course of Mr Evans’s visit or the management review, even though the Claimant had been criticised in other respects. All of those points, and others, the Judge said, should have encouraged “a healthy scepticism”
“In my view elementary investigation would have demonstrated that some of the less serious allegations were untrue, and that some of the more serious could be discounted. The reputational damage supposedly being suffered by the United Kingdom was significantly overblown.” (6) His conclusion, as recorded by way of anticipation at para. 117, was that: “If the FCO had afforded the claimant the fair treatment he was entitled to under his contract of employment with the FCO the allegations would have taken on a quite different complexion and he would have never have been withdrawn from post.”
“Thus before the decision to withdraw the claimant from post there should have been some basic analysis of Mr Courtenay's allegations, including some discussion with the claimant. The failure to do this was a breach of the obligation of fair treatment which the FCO owed him under his contract of employment. In my judgment if the FCO had complied with its contractual obligations there would have been no basis for the withdrawal decision.”
“The depression he began to suffer is also attributable to the decision to withdraw; if he had not been removed from his position as High Commissioner to Belize he would never have been affected.” (3) His cardiac illness in early 2009 did not break the chain of causation. In making that finding, at para. 132, the Judge refers back to a passage in his factual findings, at para. 69, where he says: “The claimant's evidence was that he recovered well [from his surgery] and would have returned to post within a reasonable period. At the trial Ms Le Jeune's evidence was that, had the claimant still been in post, he would have been short-toured at that point on medical grounds. Ms Le Jeune's evidence is careful and considered, referring to the variety of factors she would have taken into account. Very fairly, she concedes that her assessment is necessarily speculative. That is my view as well. In any event, if the claimant had been short-toured there is no reason to suppose that he would not have resumed his career if the withdrawal from post and subsequent disciplinary process had not taken place. Whether he would have served in further postings overseas is a more difficult question. At the time there were some 27 persons in the corporate pool at the claimant's level and the evidence is that he would have faced tough competition for an overseas posting. Given his success against strong competition in 2007, it seems to me he had a reasonable chance of a further foreign posting at that point.” (4) Mr Gifford’s conducting both stages of the process caused no loss, since the conclusion which he reached was “almost inevitable” given the facts found on the investigation: see para. 133. Accordingly: “The claimant's case for damages for breach of contract rests on the decision to withdraw him from post alone.”
“ ... The circumstances of this case are much more analogous to Gogay v Hertfordshire County Council[2000] IRLR 703 , where it was held that it was reasonably foreseeable that a knee-jerk reaction by employers in the implementation of disciplinary procedures, carried out without any proper analysis and leading to serious adverse consequences for an employee, might cause psychological damage. The claimant had an ostensible robustness but the events in the Seychelles were far removed from what happened in Belize. To my mind it could reasonably be contemplated when the claimant was appointed as High Commissioner in 2007 that depression would be a not unlikely result of a knee-jerk withdrawal from post.” “BREACH OF DUTY”
“Breach of duty to the claimant was the second prong to Ms McNeill QC's submission on damages. The duty was derived from the implied term of mutual trust and confidence or from the duty of care which the FCO owed as employer. Given my findings on breach of contract there is no need for me to reach a final conclusion on all aspects of the parties' submissions relating to it. In Ms McNeill QC's submission there were a series of matters additional to withdrawing the claimant from post and the disciplinary inquiry which meant that the FCO's conduct constituted a breach of its duty to the claimant. Moreover, the FCO did not take adequate steps to minimise the risk of the claimant developing depression.”
“In my judgment the FCO was in breach of its duty to the claimant in withdrawing him from post without informing him of the case against him. It was only at the interview with Mr Gifford in early July that he became aware of the details of the allegations against him. This is not the way an employer concerned with an employee's welfare would act. Causation and remoteness in relation to this track my earlier findings.”
“The FCO acted in breach of contract and in breach of its duty of care in withdrawing the claimant from his post as High Commissioner to Belize in 2008 without affording him fair treatment.”
“In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.”
“In this case, Dr Turner believes the cause of the clinical depression was the outcome of the formal investigation, with its findings of misconduct and the final written warning. Dr Baggaley considers that several factors had a cumulative impact in causing the depression although he accepts that had the Claimant been exonerated in August 2008, and found another suitable posting, he would probably not have become depressed. Dr Baggaley considers that of particular importance was Mr Yapp’s sense of injustice and a perceived failure by his employers to follow due process. Dr Baggaley considers that his treatment by the media contributed significantly to his stress as did his suspension.”
“79. … [T]he learned Judge’s conclusion that had the Respondent not been withdrawn from post “he would never have been affected” is inconsistent with the joint medical evidence to the effect that it was the later decision on the disciplinary investigation and not the withdrawal per se which caused his psychiatric injury … . The joint medical evidence made clear that had the Respondent been exonerated and found an alternative post he would not have developed depression, and that he did not develop depression (as opposed to stress) for at least 2 months after the decision to withdraw him (during which time many additional stressors accumulated). 80. Accordingly, there was no injury resultant from the identified breach of contract and the learned Judge should have so found.”
“Whether it was reasonably foreseeable to the reasonable man – whether a reasonable onlooker, or, in the context of the present case, a reasonable gas fitter employed by the defendants to work in the plaintiff's house – is to be decided, not on the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect in a person of normal disposition or customary phlegm, but by the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, treating himself as the reasonable man, and forming his own view from the primary facts as to whether the chain of cause and effect was reasonably foreseeable: see per Lord Bridge in McLoughlin v. O'Brian[1983] 1 AC 410 , 432C–D. The good sense of the judge is, it would seem, to be enlightened by progressive awareness of mental illness: per Lord Bridge at p. 443D.”
“So the question in any case such as this, applying the ordinary test of remoteness in tort, is whether the defendant should reasonably have contemplated psychiatric damage to the plaintiff as a real, even if unlikely, result of careless conduct on his part.”
“Suppose, for example, that a scholar's life's work of research or composition were destroyed before his eyes as a result of a defendant's careless conduct, causing the scholar to suffer reasonably foreseeable psychiatric damage. Or suppose that a householder returned home to find that his most cherished possessions had been destroyed through the carelessness of an intruder in starting a fire or leaving a tap running, causing reasonably foreseeable psychiatric damage to the owner. I do not think a legal principle which forbade recovery in these circumstances could be supported.”
“The duty in this case is owed purely in contract, rather than in tort, but there can be no more reason to distinguish between physical and psychiatric injury in this case than there is in the case of other breaches of an employer's duties.”
“Finally, [counsel for the employer] sought to argue that such losses were not foreseeable at the time the contract was made. To that extent, of course, there is a difference between breach of duty in tort and breach of duty in contract. However, the judge made a clear finding that they were foreseeable at the relevant time, and that is a finding of fact with which this court will not interfere.”
“ (1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer's liability apply (para 20). (2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (para 25). (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 (para 23). 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 (para 29). (4)-(10) ... (11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (paras 17 and 33). (12)-(16) ...”
“... [they] must be read as that, and not as having anything like statutory force. Every case will depend on its own facts.”
“That left the council in the position of employers who were entitled to expect ordinary robustness in the claimant in an employment context, including disciplinary matters, in which she had certainly never been involved before.”
“I have great sympathy for the claimant. The council's letter … and some of their subsequent conduct were unfair and hurtful, but that did not give the claimant a good claim of the kind made on her behalf unless she could show that the council were aware that she was a psychiatrically vulnerable person and that it was foreseeable that their letter and subsequent conduct might cause her to have a nervous breakdown. I think the judge's sympathy for the claimant and his outrage at what had happened led him to make findings on these two issues in favour of the claimant which were not open to him on the evidence for the reasons given by Potter LJ. This case illustrates the need for judges to guard against allowing sympathy and outrage to lead them astray.”
“In our judgment, none of these cases detracts from the utility of the guidance Hale LJ gave in Hatton and summarised in the sixteen propositions we have cited. On the other hand, what was said in Hatton was not intended to cover all the infinitely variable facts that are likely to arise in stress at work cases. The general principles are to be found in Hatton but we emphasise they need care in their application to the particular facts under consideration. For instance, while each appeal in Hatton involved an employee who had suffered ongoing stress in day-to-day work, the case of Melville, and to some extent Hartman, (see below) involved stress caused by specific traumas.”
“133. … As is apparent from the way in which the judgment in Hatton is expressed and as Lord Walker pointed out in Barber the guidance must be read as such and not as anything like a statute. Each case will depend on its own facts. Those parts of the Hatton judgment relied on by [counsel for the Home Office] were primarily intended to help judges resolve the issue as to whether an employer ought to have foreseen the risk of psychiatric injury attributable to stress at work. The guidance recognises that such injury is more difficult to foresee than physical injury. The question of whether the particular employee has shown indications of impending harm to health is a very relevant question when considering a situation where the employer has not in fact foreseen the risk of psychiatric injury and the employee's workload would not ordinarily carry a foreseeable risk of such injury. 134. But that is not this case. Here, on the only evidence before the court, the employer plainly did foresee that employees who were exposed to particular traumatic incidents might suffer psychiatric injury. There was only one answer to the simple question which the judges asked themselves. [Counsel's] submissions amounted to saying that what was in fact foreseen was not foreseeable.”
“[T]his test restricts rather than enlarges the foreseeability of psychiatric illness. It allows for the fact that expert knowledge of cause and effect may not be available to the educated layman. It does not mean that the judge should give effect to speculation or urban legends unsupported by evidence.”
“The general rule … requires one to decide whether it was reasonably foreseeable that the event which actually happened … would cause psychiatric illness to a person of reasonable fortitude. I think that the Court of Appeal was right to say that there was no basis for such a finding.”
“Ms Nelson explained that the offer of counselling was not because she saw the claimant as particularly vulnerable or depressed but because the proceedings were likely to take some time. In later meetings with Mr Nelson the claimant expressed his feelings of anger and distress. He told her about his health, first, that he had been prescribed sleeping tablets and later, that he had been diagnosed with depression. Ms Nelson's evidence at trial was that in her position she saw many unhappy people, some more distressed than the claimant. The passing reference to sleeping tablets was nothing unusual. She said that the claimant's reactions were not an unusual response to investigations and disciplinary proceedings. She said that many people exhibited similar responses and that the vast majority did not develop depression. She knew of only two instances of psychiatric illness in her fifteen years in Health and Welfare at the FCO and they were different.”