Merelie v Newcastle Primary Care Trust [2006] EWHC 150 (QB)

“1. The Claimant relies on a number of causes of action to seek remedies in connection with the dismissal from her post as a dentist employed by the Newcastle Primary Care Trust (the first Defendant). These tend to overlap not only with one another but also with other proceedings brought, respectively, for unfair dismissal in the Employment Tribunal and for personal injury in the Newcastle County Court. 2. In the proceedings before me there are no less than thirteen Defendants. Apart from the Trust itself, there are twelve individuals. Defendants No. 6, No. 7, and No. 8 are dentists with the Community Dental Service and Defendants Nos. 9 to 13 are dental nurses. The second Defendant is Mr Bob Smith; former Chief Executive of the Primary Care Trust, the third is Judith Smith, the fourth Jill Prendergast, and the fifth Paula Whitty. Those were all involved at various stages in investigating complaints made by or concerning the Claimant. No defence has yet been served. 3. The Claimant was employed from 1975 to 2001 by the Trust (or its predecessors in title) although there was a period of absence through stress between February and August 1999. The problems to which I have referred appear to have had their origin in the troubled relationship between the Claimant and Miles Ferguson (Defendant No. 6), who was at the material times responsible for day to day management of the Community Dental Service and was, in that capacity, also largely responsible for determining the work load among dental nurses. The Claimant says that she had been concerned about the way in which Mr Ferguson carried out his duties, which she claims had often adversely affected patient care. She also claims that he had harassed her in various ways over a number of years, including sexually. 4. The Claimant and Mr Ferguson lodged complaints against one another. His was first in time, and was based upon the proposition that she had taped an interview between them without his consent; her complaint was based on an allegation of bullying, harassment, and unfair treatment. The complaint against Mr Ferguson was resolved by Defendant No. 4 in January 2000. It was acknowledged that the relationship between the two was troubled, and recommendations were made in an attempt to improve matters. Unfortunately, the disposal of the Claimant’s complaint does not seem to have cleared the air. 5. Following this outcome, it is the Claimant’s case that Mr Ferguson proceeded to launch a campaign of harassment against her. The conduct seems to fall into three categories, according to paragraph 4.3 of the particulars of claim. He is said to have falsified information he was obliged to provide, by way of returns to the Trust, by omitting work carried out by the Claimant over the four-month period between April and July 2000. He is also said to have written to some of her patients to inform them, falsely, that they could no longer receive treatment from her. But the allegation which looms largest in her pleaded case is that “extremely serious allegations about the Claimant’s professional and personal conduct were repeatedly made”

“31. Naturally, I recognise that there is a certain implausibility about the scenario put forward by the Claimant, involving as it does so many people combining (almost conspiring) to do down a professional person. As was observed, however, by Simon Brown LJ in Spencer v Sillitoe [2003] EMLR 10 at [31], a litigant should not be deprived of a hearing merely because the case seems to a judge implausible on paper. In any event, the implausibility is not all on one side. The Defendants’ case involves the hypothesis that the Claimant was behaving rudely, unprofessionally, and irrationally on an apparently habitual basis despite the fact that no one appears ever to have raised a complaint against her over the previous quarter of a century. It would also appear from the material gathered together by the Claimant that this contention is contradicted by a number of other persons who had worked closely with her, and indeed more closely, and over a longer period, than some of those raising complaints. It is dangerous for judges to shut out claimants from having their grievances properly explored in such controversial circumstances. 32. There is much to be said for the view that the adoption of statutory or domestic disciplinary procedures should not be characterised as harassment because of the scope for duplication of issues and costly satellite litigation. Yet I must bear in mind the decision of the Divisional Court in Baron v CPS, 13 June 2000 (unreported). There, harassment had been found proved in respect of the appellant’s conduct which consisted partly of abusing officers of the Benefits Agency in letters and partly, more specifically, in threatening to abuse his rights as a cross-examiner and to serve witness orders on people in person. The harassment took place therefore, in part, within the framework of legal procedures. Yet it is important to note that it was the abuse of those procedures which constituted harassment. That is essentially the Claimant’s case here with regard to the grievance and disciplinary procedures instituted against her. Morison J made the following general observation: “Equally, citizens have an unfettered access to the Courts to resolve disputes and to conduct those proceedings forcefully, causing legitimate aggravation to the other party within the procedural rules. Persons will or may feel harassed as a result of the lawful conduct of forcefully conducted litigation. On the other hand, if proceedings are being used for an ulterior purpose, namely not to air legitimate grievances but to cause distress to those involved in the process, then the line may be crossed and the acts may become unlawful under the Protection from Harassment Act 1997”. 33. Thus, here the central issue would appear to be whether Mr Ferguson stirred up the grievances and encouraged their continuance ‘for an ulterior purpose’. That is exactly what the Claimant alleges; on the basis that he wanted revenge, whether because she had shunned or complained about him in the past, or simply in order to be shot of her. 34. I am only too conscious of the unusual facts before the Divisional Court in the Baron case; I have little doubt that it would only be in exceptional cases that the Court would feel able to hold that the ‘forceful conduct’ of litigation had crossed the line, so as to constitute abuse and actionable harassment. What I am unable to do, on the other hand, is to rule simply on the papers that no reasonable Court could uphold the harassment claims, on the basis of the facts pleaded, without perversity. 35. What I have in mind is the possibility, startling though it may seem, that the original complaints made in 2000 and 2001 were prompted and orchestrated by Defendant No. 6. That scenario, although no doubt counter-intuitive, could possibly come within the extended definition of 'harassment’ as it is beginning to emerge in the developing case law. On the other hand, although I am cautious about adopting too robust an approach towards those allegations (especially for the reasons canvassed in Spencer v Sillitoe, cited above), I believe that I should be unduly timorous not to apply the guillotine in the case of the harassment allegations made against Defendants No. 3, 4 and 5. Their roles, as Mr Wolanski points out, were essentially concerned with the conduct of the investigatory process in accordance with their responsibilities. Of course it may be that they are open to criticism as to the way they discharged their responsibilities, but I am not persuaded that there is anything which would amount, in the case of any of them, to such an abuse of power as to fall even arguably within the notion of harassment. 36. So far as defendant No. 2 is concerned, I believe it would be illogical for me to leave outstanding the claim for defamation against him, along the lines I have already described, without also admitting the possibility that his ex hypothesi malicious conduct could also amount to harassment. It is said that his conduct cannot be considered as “calculated to cause alarm or distress, let alone conduct that is oppressive or unreasonable”

“Although their Lordships decision was concerned with pecuniary loss, much was said about the general applicability today of Addis also to non pecuniary loss. As the law stands, there can be no recovery for mental distress whether regarded as arising from injury to feelings or injury to reputation, even where there is breach of the implied term of trust and confidence. This was initially held in Bliss v. South EastThames Regional Health Authority, then in French v. BarclaysBank and accepted as the law in Gogay v. Hertfordshire County Council. But this could now change.”

“Whether we shall see the limited retreat from the refusal of contract damages mapped out for mental distress followed by any comparable retreat in the field of contract damages for tarnished reputations is unsure. It may turn out that the new thinking will find application only to the contract of employment as the likeliest contract to affect reputation in its breach.”

“With reference to the grievance this was not upheld as there did not appear to be a deliberate attempt by Miles Ferguson to harass you, however, recognition was fully given to the fact that the points raised by you were valid and should have been acted upon and must now become part of some focussed work to address the issues. It was stressed as important to allow both yourself and the service to move forward that a line must be drawn and that continual reference to the past will not be helpful. In an endeavour to support this Miles Ferguson decided to withdraw the complaint and with it the investigation regarding the use of tape recordings of conversations. This magnanimous offer was accepted but it was made clear that this type of behaviour could not and would not be condoned. To ensure that in this fragile stage in the process there was opportunity for routine communications it was agreed for the next month there is to be planned facilitated weekly meetings, any urgent communication from Miles to yourself would be initiated via a fax with an expectation that you phone as quickly as possible. ”

“The defendant was in breach of the implied term of trust and confidence referred to in paragraph 5 because it had no reasonable grounds 1. For failing to follow its own grievance procedure, 2. For failing to investigate the allegations made against the claimant; 3. For accepting the allegations as being true without any evidence to substantiate this; 4. For threatening the claimant with disciplinary if further allegations were made; 5. For not allowing the claimant to defend herself; 6. For ignoring the claimants requests for an investigation and the claimants formal grievance; 7. For encouraging those responsible to repeat the allegations despite evidence to show the allegations were false.”

“1. The Defendant caused the Claimant to work under excessive pressure by accusing the Claimant unreasonably of professional misconduct and refusing to allow the Claimant to defend herself and accepting the allegations as being true. Yet the Defendant knew the Claimant was a conscientious worker whose main concern was for the patients. The Defendants also knew that the Claimant had taken time off for stress caused by the actions of Miles Ferguson and Natasha Weisser. The Defendant could foresee the allegations of professional misconduct made against the claimant would cause the injury to the Claimant. 2. The Defendant could further foresee that failure on its part to investigate and yet to accept the allegations as true and threaten the Claimant with disciplinary action if further allegations were made would cause the Claimant injury.”

“The Claimant’s health was affected by the allegations made and the actions of the Defendant. The Claimant was understandably distressed the Claimant felt depressed and in a state of shock. She had difficultly sleeping. Her blood pressure rose and she had series of blood shot eyes. The Claimant did not visit doctor she was only concerned about her reputation. She had devoted her life to her career and was and still is devastated by the Defendant’s cruelty and high handedness. The Defendant set out deliberately to destroy the Claimant’s career and health after she had been a conscientious employee for 26 years. The Claimant felt as if she was living a nightmare. … The Claimant suffers from clinical depression and severe clinical anxiety and stress…”