Saha v Imperial College of Science, Technology & Medicine [2013] EWHC 2438 (QB)

[2013] EWHC 2438 (QB)Case No TLQ/12/1308
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC1A 1NLDate 07/08/2013
Before
MR JUSTICE HAMBLEN
Between
SAHAClaimantIMPERIAL COLLEGE OF SCIENCE, TECHNOLOGY & MEDICINEDefendant
Ms M Saha In Person for in personMs F Morris QC (instructed by Berrymans Lace Mawer LLP) for DefendantHearing Hearing dates: 9, 10, 11,12,15,16 and 17 July 2013
Judgment

Introduction

[1]Miss Saha, the Claimant, was a PhD student in the Division of Cell and Molecular Biology at Imperial College, London (“IC”), the Defendant, from 1 October 2002 to 30 September 2005. Her PhD supervisor up until 31 July 2004 was Dr Thierry Soldati. In this action Miss Saha claims damages in excess of £1.5 million for personal injury and loss arising from alleged harassment by Dr Soldati and employed members of his team at IC. The claim is brought pursuant to section 3 of the Protection of Harassment Act 1997 (“the Act”) for alleged breach of section 1 of the Act.

Factual background

[2]Miss Saha has an MSc in Applied Molecular Biology of Infectious Diseases from the London School of Hygiene and Tropical Medicine. She worked as a Senior Research Technician in the Department of Surgery, Hammersmith Hospital, Imperial College, for two and a half years. After that she was a research assistant at the Kennedy Institute for two years before becoming a PhD student at IC.[3]Dr Soldati has a Doctorate of Natural Sciences in cell biology from the Institute of Cell Biology in the Swiss Federal Institute of Technology, Zurich. He was a postdoctoral researcher in the Department of Biochemistry at Stanford University Medical School from 1991 to 1995, following which he joined the Max-Planck Institute for medical research in Heidelberg, as an Independent Group Leader. In July 2001 he was appointed Lecturer in the Department of Biological Sciences at IC where he set up a research laboratory that conducted research into cellular mechanisms of innate immunity. This research was mainly funded by a grant from the Biotechnology and Biological Sciences Research Council (“BBSRC”) and the Wellcome Trust. He was the Principal Investigator (“PI”) for the purpose of any grants obtained which meant being in charge of the direction of the research, the management of the research team and of the funding of the research.[4]The goal of Dr Soldati’s research is to reach a better understanding of the fundamental mechanisms by which cells of the human innate immune system work. His research looks specifically at the cellular and molecular mechanisms of such cell-autonomous defences.[5]In May 2002 Miss Saha applied to become a research assistant to Dr Soldati. She was interviewed by him on 3 July 2002 and offered a PhD studentship which she accepted. She joined Dr Soldati’s research group as a full time student in October 2002.[6]Miss Saha’s research project was entitled “Cellular and Molecular Mechanisms of Myosin 1B Function in Phagocytosis”. The project had been chosen by Dr Soldati and built on research conducted previously by him and Dr Eva Neuhaus, which had been published in a prestigious scientific journal in 2000 (“the Neuhaus paper”).[7]During the first year of her project Miss Saha and Dr Soldati got on well. In her 6 month self assessment questionnaire of 10 April 2003 she gave 10/10 in answer to the question of how she got on with her supervisor. A positive 9 month progress report was issued in July 2003, although it was commented that she should concentrate on increasing her production and that it was important to work on different fronts in parallel.[8]In early 2004 Miss Saha had to obtain approval for her MPhil to be transferred to a PhD. This involved submitting a report and having a viva. The viva took place on 10 March 2004 when Miss Saha presented her transfer report to her Progress Review Panel (“PRP”), Dr Caron and Professor Hopkins. Dr Soldati was also present in an observatory capacity.[9]The PRP recommended that Miss Saha should rewrite her report (particularly the result section) within two months following which a new viva would be held, as set out in an email from Dr Caron to Dr Soldati of 22 March 2004.[10]Miss Saha was upset at being required to produce a new report and to have another viva. She thought her work had been going well up to that point. There was a meeting with Dr Soldati on 24 March 2004 at which Dr Caron’s email was discussed. Dr Soldati stressed the importance of what needed to be done and did comment that she should have worked harder. This upset Miss Saha who said she had been working very hard. She said she had been working 16-18 hours a day. Dr Soldati said that she should aim to work 10 hour days on average, but to be prepared to work at week-ends and 12 hour days, when necessary. Miss Saha was in an emotional state and cried, but not uncontrollably or continually. She did not then say to him “this wouldn’t have happened if you hadn’t lied about the cell lines”, as she alleged. No allegation of lying or research misconduct was made at this time.[11]The combination of being required to produce a further transfer report and undergo another viva, and what she saw as Dr Soldati’s insensitive treatment of her and unjustified questioning of how hard she had been working, upset Miss Saha and held back her work. To Dr Soldati, however, it appeared that she simply was not getting on what needed to be done to progress her transfer report and research.[12]It was against this background that the first instance of alleged harassment occurred when Dr Soldati sent an email to Miss Saha on 29 May 2004.[13]This was followed by further emails and incidents during the course of June 2004 which were alleged to involve harassment.[14]For some time it had been known that Dr Soldati would be leaving IC and taking up a post at the University of Geneva. His research team was, however, going to remain in London and he would be returning from time to time. On 6 July 2004 Dr Soldati left for Geneva. On 31 July 2004 his employment with IC ceased although he continued to be an honorary lecturer.[15]Dr Soldati was replaced by Professor Buck as Miss Saha’s primary supervisor but he remained as an external supervisor.[16]On 28 September 2004 Dr Soldati met with Miss Saha. This meeting was also attended by Dr Williams. There was a discussion at the meeting of Miss Saha’s lab progress and future plans. At the end of the meeting Miss Saha asked Dr Soldati if he would provide funding for her to attend the American Society for Cell Biology (“ASCB”) in December 2004. His immediate response was that he did not think it was appropriate for her to attend.[17]On 1 October 2004 Dr Soldati sent an email explaining why he did not consider it appropriate. This angered Miss Saha who considered that her maturity and work were being denigrated and there were a series of emails exchanged on this issue. These were alleged to be a further instance of harassment.[18]Dr Soldati arranged for the research team to attend the UK Dicty meeting in Cambridge on 16 and 17 December 2004. Miss Saha attended on the second day and alleged that there was an act of intimidation by Dr Soldati as they were leaving the conference hall.[19]The final acts of harassment alleged against Dr Soldati were watching Miss Saha working on 1 February 2005, sending an email to her on 2 February 2005 and allegedly taking of some of her materials from her freezer drawer on 4 February 2005. In addition she relied on some later emails relating to the return of equipment.[20]Miss Saha also alleged various acts of harassment by members of the research team, namely Dr Von Heyden and Dr Blancheteau during the course of 2005.[21]On 13 April 2005, Professor Buck ceased to be Miss Saha’s principal supervisor and Dr Soldati ceased to be Miss Saha’s external supervisor. Overall supervision was taken over by Professor Hopkins.[22]On 6 May 2005 Miss Saha made her first formal complaint. This was followed by a second formal complaint (including transfer of equipment) on 23 June 2005, and a third complaint (grievance procedure) on 26 September 2005.[23]On 30 September 2005 Miss Saha’s registration as a full time PhD student ceased.[24]Further complaints were made by Miss Saha between November 2005 and April 2006 and again on 15 August 2007. All the complaints made were responded to.[25]On 28 May 2010 the present proceedings were issued by Miss Saha against IC.[26]The proceedings have had a long and complex history which has involved large parts of the claim being struck out. By the time of the hearing the remaining claim was one for harassment as set out in the struck through Substituted Particulars of Claim. Apart from the concession made on behalf of the Defendant that the allegation of her theft of materials be allowed to proceed as part of the claim for harassment, Miss Saha’s case is confined to the claim there made.

The law

[27]For present purposes the most relevant provisions of the Act are as follows: “1. Prohibition of harassment(1) A person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.(3) Sub-section (1) does not apply to a course of conduct if the person who pursued it shows … (c) that in the particular circumstances the pursuit of the course of conduct was reasonable. 2. Offence of harassment (1) A person who pursues the course of conduct in breach of section 1 is guilty of an offence… 3. Civil remedy (1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment… 7. Interpretation of this group of sections. … (2) References to harassing a person include alarming the person or causing the person distress. (3) A ‘course of conduct’ must involve (a) in the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person … ….(4) ‘Conduct’ includes speech.” (b) which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. (3) Sub-section (1) does not apply to a course of conduct if the person who pursued it shows … (c) that in the particular circumstances the pursuit of the course of conduct was reasonable. (1) A person who pursues the course of conduct in breach of section 1 is guilty of an offence… (1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment… … (2) References to harassing a person include alarming the person or causing the person distress. (a) in the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person … ….[28]In order to prove harassment it is accordingly necessary to establish:(1) A course of conduct by a person;(2) Which amounts to harassment; and (a) which that person knows amounts to harassment; or (b) which that person ought to know amounts to harassment, in that a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.[29]The meaning of harassment has been considered in a number of cases.[30]In Thomas v News Group Newspapers Ltd [2002] EMLR 4 Lord Phillips MR, with whom the other members of the Court of Appeal agreed, stated:
“[29] Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect. [30] The Act does not attempt to define the type of conduct that is capable of constituting harassment. ‘Harassment’ is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.”
[31]In Majrowski v Guy's and St. Thomas's NHS Trust [2005] EWCA Civ 251, May LJ stated:
“[82] … although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to a conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress.”
[32]In the House of Lords [2007] 1 AC 224 Lord Nicholls stated:
“[30] …Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.”

Lady Hale observed that:

“[66]…A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.”
[34]The passage in the speech of Lord Nicholls was considered by Gage LJ in the decision of the Court of Appeal in Conn v Sunderland City Council [2007] EWCA Civ 1492:
“[12] It seems to me that what, in the words of Lord Nicholls in Majrowski, crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognizing what is not harassment for the purposes of sections 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.”
[35]In R v Curtis (James Daniel) [2010] 1 WLR 2770 Pill LJ stated that: “[29] To harass as defined in the Concise Oxford Dictionary, Tenth Edition, is to ‘torment by subjecting to constant interference or intimidation’. The conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive. We respectfully agree with the analysis of Lord Phillips MR, with whom Jonathan Parker LJ and Lord Mustill agreed, in Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233”.[36]In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 Maurice Kay LJ observed:
“[11] … The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which ‘would sustain criminal liability’.”
[37]In Dowson v Chief Constable of Northumbria [2010] EWHC 2612 Simon J considered the above cases and helpfully summarised their effect at [142].[38]In summary, harassment is a course of conduct:(1) which is targeted at the claimant;(2) which is calculated in an objective sense to cause alarm or distress; and(3) which is objectively judged to be oppressive and unacceptable.[39]To determine what is oppressive and unacceptable the context will be important and a line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways, such as ‘torment’ of the victim, ‘of an order which would sustain criminal liability.[40]Miss Saha placed particular reliance on the cases of Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123 and Barber v Somerset [2004] UKHL 13.[41]The Iqbal case concerned a solicitor and stressed the significance of an attack on a professional person’s integrity. Miss Saha submitted that her professional and personal integrity was attacked in this case.[42]The Barber case was a negligence case but was relied upon to highlight the potential factual significance of the fact that people have different capacities for absorbing stress and different breaking points. Miss Saha contended that IC and Dr Soldati knew or should have known that she was suffering from stress and depression from an early stage of the alleged harassment.

Miss Saha’s case

[43]Miss Saha’s pleaded case is that the harassment by Dr Soldati consisted of abusive emails and physical intimidation.[44]The emails relied upon are dated 29 May, 11 June, 14 June, 17 June, 18 June, 22 June (x2), 1 October and 27 December 2004.[45]She also relied upon some later emails relating to the return of equipment.[46]The incidents of alleged physical intimidation were as follows:(1) On 10 June 2004 when Dr Soldati allegedly spoke to Miss Saha and looked at her mockingly (“incident 1”);(2) On 22 June 2004 when Dr Soldati allegedly spoke aggressively to Miss Saha and his behaviour suddenly became menacing (“incident 2”);(3) On 23 June 2004 when Dr Soldati was allegedly aggressive and intimidating and shouted at Miss Saha in the presence of Dr Dieckmann, and chased her and looked at her menacingly (“incident 3”);(4) On 29 June 2004 when Dr Soldati allegedly looked antagonised because Miss Saha had brought Dr Ray to the lab as her ‘bodyguard’ (“incident 4”);(5) On 29 June 2004 when Dr Soldati allegedly demanded a lab book from Miss Saha aggressively in the presence of Mr Matthews (“incident 5”);(6) On 17 December 2004 when Dr Soldati allegedly used his physical presence to intimidate Miss Saha at a meeting in Cambridge (“incident 6”);(7) On 1 February 2005 when Dr Soldati allegedly ‘watched’ Miss Saha work late into the night but failed to alert her until the next day (“incident 7”).[47]In addition Miss Saha alleged harassment by two of the research group team, Dr Blancheteau and Dr Von Heyden.

The issues

[48]The issues for determination at trial may be summarised as follows:(1) Did the incidents of alleged physical intimidation by Dr Soldati occur as alleged or at all;(2) Do the incidents proved by Miss Saha, taken together with the emails from Dr Soldati to her, amount to harassment;(3) Whether Dr Soldati knew what he is found to have done amounted to harassment;(4) Whether Dr Soldati ought to have known what he is found to have done amounted to harassment, in that a reasonable person in possession of the same information would think it amounted to harassment;(5) Whether Dr Blancheteau harassed Miss Saha and knew or ought to have known that his conduct amounted to harassment;(6) Whether Dr Von Heyden harassed Miss Saha and knew or ought to have known that his conduct amounted to harassment.

General comments on the evidence

[49]Before considering the specific allegations underlying Miss Saha’s case and making findings in relation thereto it is appropriate to make some general comments on the witnesses and the evidence.[50]The only witness called in support of the claim was Miss Saha herself. The witnesses for the defence, whose respective occupations at the time are as indicated, were Dr Vincent Blancheteau, a postdoctoral researcher; Professor Martin Buck, Professor of Molecular Biology and Head of Plant and Microbial Sciences at IC; Dr Régis Dieckmann, a PhD student; Dr Kleoniki Gounaris, Director of Postgraduate Studies in the Department of Life Sciences at IC; Professor (then Dr) Alistair Mathie, Reader in Molecular Neuroscience and Director of Postgraduate Studies in the Department of Biological Sciences at IC; Mr Jonathan Matthews, a PhD student; Mr John Murrell, an Administrative Assistant at IC; Dr Mike Ray, a PhD student (who was not required to be called); Dr Yosuke Von Heyden, a PhD student and research assistant; Dr Huw Williams, a Reader in Microbiology and Postgraduate Tutor; Dr Kunito Yoshida, a postdoctoral researcher (who was not required to be called), and Dr Soldati.[51]It is striking that none of the defence witnesses supported Miss Saha’s allegations of harassment. They include a number of members of her lab team who would have witnessed interactions between her and Dr Soldati. They recognised that Dr Soldati was a demanding supervisor with a direct and sometimes abrupt manner of communication but did not consider that he ever bullied or harassed. Those who witnessed specific incidents relied upon by her did not consider Dr Soldati’s behaviour to be aggressive or threatening. A number of the witnesses have no continuing affiliation to IC and are in that sense independent. Those who are affiliated to IC are experienced and responsible professionals. All the defence witnesses gave measured and considered evidence.[52]It is also striking that Miss Saha’s allegations of harassment are not limited to Dr Soldati. They extend also to Dr Von Heyden and Dr Blancheteau. At one time they also extended to Dr Kunito Yoshida. Had she been permitted to do so, she would also have wished to allege that Professor Buck aided and abetted Dr Soldati’s harassment. The chances of all these respected scientists being involved in harassment must be remote. It also suggests an over readiness to make such allegations.[53]Miss Saha is clearly an intelligent woman who has mastered every detail of the case. She presented her case both in writing and orally with considerable skill and demonstrated an impressive knowledge of the documents, evidence, issues and arguments. In my judgment, however, she has become fixated on her case. She has gone over every detail again and again to the extent that she believes certain incidents occurred, even when they did not. The line between her case, and allegations which suit it, and what actually happened has become blurred.[54]There were a number of allegations made which were clearly fanciful. In particular, she contended that Dr Soldati’s alleged harassment of her was motivated by a fear that she would expose his “research misconduct”. As set out in more detail below, there was no research misconduct. Moreover, no allegation of such misconduct was made until after the main events in question. She further contended that later on Dr Soldati was motivated by a desire to get her off her PhD so that he could transfer her project to Dr Dieckmann for his own gain. This too is fanciful. Dr Soldati had every reason to wish that Miss Saha’s research work was successful, as it would assist his own work, of which it was part. Dr Dieckmann’s work was complementary, not competitive. The alleged motivation of Dr Von Heyden to harass Miss Saha was also entirely without substance. It was alleged that because his work was not going as well as he hoped, as reflected in the fact that his PhD result was deferred, he decided to disrupt the work of Miss Saha. It follows that the alleged motivation for the harassment by Dr Soldati and others was not proved.[55]The alleged incidents were not generally supported by contemporaneous documents. Miss Saha did keep a form of diary on her computer which records some meetings and incidents. Some of the detail there set out is consistent with being relatively contemporaneous, but that cannot be said of all of the entries, or many of the entries in their entirety. It is simply not possible to tell exactly when the entirety of the entries were written up, although this would have been done by the time of her first formal complaint in May 2005.[56]Miss Saha drew attention to the fact that IC had not called Professor Hopkins. He had been generally supportive of her at the time and eventually took over as her supervisor. Equally, however, she has not called him. There is no property in a witness.[57]She also placed considerable reliance on the criticisms made by others of aspects of Dr Soldati’s conduct at the time. These are addressed below.

The alleged research misconduct

[58]Although this was not part of Miss Saha’s surviving pleaded case, it was nevertheless an important background matter in relation to her allegations of harassment against Dr Soldati since it was her case that it provided the motivation for it.[59]The Neuhaus paper investigated the possible role of actin (a muscle protein) and myosins (so called “molecular motors”) in the process of macropinocytosis (the process by which cells drink). The main finding of the paper was that, for the first time, it was shown that MyoB was directly involved in a specific step in the macropinocytic process.[60]One aim of the continuing research at IC was to further explore the function of MyoB by expanding the research to focus on the process of phagocytosis (the process by which cells ‘eat’). This research was to be integrated into the larger context of the other studies in Dr Soldati’s lab and elsewhere, which involved studying the mechanisms of phagocytosis and especially the effect of knocking out different genes within the myosin family.[61]Miss Saha’s PhD project was to focus on particular biological questions relating to the MyoB knockout or null cells. These were set out in her PhD outline under the heading “Aims of this Investigation”.[62]In the research that culminated in the Neuhaus paper a comparison was made between various mutants in the AX2 and JH10 strains to the lab wild-type strain AX2. The JH10 mutants had been provided by Dr Margaret Titus, along with the materials necessary to generate those mutations in any other strain. There were two mutants in the gift JH10 strain that showed particularly important biological characteristics, and these formed the basis of the Neuhaus paper.[63]Miss Saha was provided with the gift JH10 mutant strain which would be used to conduct experiments to explore the possible function of MyoB in phagocytosis whilst she created new mutant stains in AX2 and DH1-10 which would then be used for comparison purposes. This was reflected in the “Study Design” section of her thesis outline which stated that she would “analyse MyoB null cells generated in two different wild type laboratory strains, AX2 and DH1-10”.[64]It is global standard practice to compare cell lines of the same background strain, as Dr Soldati accepted in evidence. The Neuhaus paper stated that the comparison had been made with an AX2 wild type strain and so Miss Saha assumed that the comparison had been made with an AX2 null cell rather than a JH10 null cell, and that the gift strain she had been provided with was also of AX2 background, whereas in fact it was of JH10 background. As Dr Soldati explained, they had done this because they did not consider that the JH10 and AX2 strains would behave differently in this research (as has been confirmed by subsequent research), although they recognised the potential shortcomings of this approach given the potential for strain specific defects. Further, it was Dr Soldati’s evidence that at that time the only existing MyoB null mutants were of JH10 background and it is common practice to make use of the strains you have, especially where, as here, there was reason to believe that it will not affect the validity of the research results.[65]Dr Soldati did not realise that Miss Saha was working under this misapprehension, despite the reference in her 6 month report to the trouble she was having growing AX2 MyoB cells. Since part of the project was to create AX2 null cells he assumed that she knew that the gift strain she had been provided with was not of AX2 background.[66]In her draft letter of informal complaint dated 28 June 2004 Miss Saha criticised Dr Soldati for not avoiding this confusion. She there stated: “I even explained to the PRP that I had not realised that the mutants described in your paper with Eva Neuhaus, where you base your theory that MyoB has a role in membrane recycling…..were from different backgrounds! It is not obvious, but I did expect that a supervisor might point this out to a student to avoid confusion…”.[67]However, by the time of her formal complaint in May 2005 the allegation had become that this was the result of research misconduct, not confusion. In her evidence Miss Saha alleged that Dr Soldati had specifically told her that the gift cell line was of AX2 lineage. I reject that allegation, which is inherently unlikely, has no contemporaneous support and is not reflected in the draft 28 June 2004 letter. She also alleged that the fact that the Neuhaus paper was based on a JH10 mutant cell line meant that the data published was “void”, involved a “fraud” and that Dr Soldati harassed her in order to stop her from blowing the whistle. There is no substance in these allegations. There was nothing hidden in Dr Soldati’s paper and the research underlying it. The paper has been presented at many conferences and no-one has ever shown anything in it to be incorrect. Its peer reviewers included Dr Titus. Further, the research relating to the mutant null cells was not the only evidence relied upon.[68]I therefore reject Miss Saha’s allegation of research misconduct and therefore the principal reason she gives for Dr Soldati acting in the manner in which she alleges.

The alleged course of conduct

[69]On Saturday 29 May 2004 Dr Soldati sent Miss Saha an email which she described as being “the primary attack”.[70]The email provided that: “Dear Mowe, My apologies for rushing away on Friday, but I was late to collect Dimitri after his week-long school trip. It is really too bad, because I had been waiting until Friday to have a chance to talk about a few things with you and now I am away for a week and when I return there will be quire a few days of hectic and rush before we have a chance to talk again. But I am not too happy about certain things and I want it out before accumulating it for too long. In order to keep the balance, I once again have to start with the “nice things”, such as my satisfaction about some aspects of your work. You are very good at picking up new methods and techniques (rapid freezing and IFA, phago preps, FACS assay, transfection and cell cultures etc) and once you have gotten accustomed to them, your work is of great technical quality. The last session at the confocal was excellent, it gave me a very good impression of your abilities to master that new tool. I am grateful for your excellent support at transmitting the information to newcomers (e.g. Daniel, Jon and now Regis). Your teaching is thoughtful and rigorous. I also appreciate greatly your social skills and the good mood (there are exceptions to both, but who does not!?). Nevertheless, I think it is time for an assessment of achievements and a criticism about some aspects that I find very unsatisfactory. I have debated for a long while whether I should wait until after your viva, but actually decided not to. I want us to clean the table and use your viva as a catalyst, a pivot point to start afresh in the right direction. Ok, I make the list of major and minor points. The first is the impression that since the last days of preparation for your transfer report, the advancement of your research is reduced to a minimum, and that is now months ago. I recognise that things got worse after a certain discussion, when we had perhaps the first real confrontation about the way you organise your working hours. You have to understand that the critical parameter is not how long you stay every day at IC, but the advance of your project. I have said clearly that I think that an AVERAGE of 10 hours a day including weekends is absolutely necessary but such life is bound to have ups and downs. No need to be heroic a few days and then disappearing to recover, what is needed is a constant engagement. I perfectly understand the need to have a social life but to be frank; there are too many hours in the lab when I wonder what you are doing. And just as many when I don’t wonder but just regret that you use that much time for chatting and socialising. It is unacceptable to see you come in at 11am and take ample breaks, even if you may stay until relatively late, if at the same time there is a mountain of work to be done. For example, I have asked you so many times to analyse your data instead of piling them up for weeks. After repeatedly asking about your FACS assays, two weeks ago I gave you a strict deadline of doing them on the next Monday, but you simply ignored my request. The same happened about the western blot data, I had to chase you repeatedly to simply get access to the file. That is unacceptable. Add to that a discussion where I pointed clearly at the need of repeating some data, insisting on the blot of MyoB in wt phagosomes… after which you promised to reactivate a cheesy blot!!! First I think this was already half a shame to respond like that to the advice of your supervisor, but it is a complete shame that you have not even done that!!! I cannot understand that you are not excited by my will to include as many as possible of your data in a talk that I am preparing and that you prefer to sabotage that effort! It is very bad for me and a disaster for you! You are failing too many deadlines, you have to learn to set sensible objectives and reach them!! Don’t look around you, others in the lab might have similar problems but that is not your business. I have to supervise case by case and I am working on it. And I must say that it does not stop there. I realise while surveying the equipment for the move that you have not yet collected the spores from plates that have been in the incubator since before your viva!!?? I sent you multiple emails about that and you never responded. How do you want me to accept that ? We discussed the shipment of RNAs to Cambridge… have you done it ? We discuss the use of Twsiki since weeks and you have barely used it. Do you realise that this will be vital to keep us all united as a group and that this will represent a major way of exchanging ideas and feedback on experiments etc..??? Therefore, go ! Instead of a 2 hour tea break, take your computer and make yourself a Tswiki personal page, with the plan of your thesis, your aims and approaches, the protocols and failures, the milestones and achievements, the good and the bad data. I request it from you!! Ok, that’s enough, for you and for me. Please, realise that I am open to your argumentation, but don’t concentrate on making an infinite list of small arguments and excuses. I am expecting you to act as an adult and take the decisions that are necessary. Be realistic, you have my full support, I won’t fail from my role as mentor and supervisor. There is nothing irreversible, but it is time to stop kidding and take a fresh start. Don’t hesitate to respond by email, by phone or to wait until we can discuss it face to face. But I want you to think thoroughly about it. Friendly yours, Thierry”.[71]Miss Saha said that she found the email alarming, in particular in its allegations of missed deadlines, poor work attendance and sabotage and in its “screaming” tone. She said she was particularly troubled by the fact that he had not previously raised these issues and that it included fictitious events. Moreover, no mention had been made of these matters the previous day when they had seen each other, as the email records. She said that they had spent 8 hours together on the confocal microscope that day.[72]Dr Soldati said that he was concerned about Miss Saha’s apparent lack of progress and that he wanted to get her back on track. He was trying to help her to move forward and to do that had to provide some constructive criticism. He acknowledged with hindsight that the email “comes across as being very direct” but said that he had no intention to attack or bully Miss Saha.[73]I find that Dr Soldati had seen Miss Saha the previous day but not for long as he had had to go off to collect his son. They had recently spent some time together on the confocal microscope but not on that Friday and not for 8 hours.[74]I accept that the aim of the email was to provide constructive criticism but the manner in which that was done was unfortunate. Although positive points were made, there were a litany of complaints expressed in a somewhat intemperate way. I recognise that Dr Soldati is Swiss and that English is not his first language and that he has a habit of liberally using exclamation marks. Nevertheless there were a number of unfortunately expressed complaints, such as “That is unacceptable”; “it is a complete shame that you have not even done that!!!”; “you prefer to sabotage that effort!!!”; “it is very bad for me and a disaster for you!”; “how do you want me to accept that?”; “Therefore, go!”.[75]As to the content of the message, many of the points made were justified, as Miss Saha acknowledged in evidence. She made particular objection to the complaints about missed deadlines, working hours and “sabotage”.[76]As to missed deadlines, Miss Saha had missed a number of deadlines, as Dr Soldati stated. In particular, the two months allowed for the revised transfer report had passed. As her supervisor Dr Soldati had a responsibility to seek to ensure that that was complied with.[77]As to working hours, Miss Saha had been away for about 3 weeks at the end of February/early March. She had been away from her work for a few days after the 23 March discussion. She had been away over Easter. She would also on occasion arrive later than other members of the group. There were therefore various absences. It may well be that Miss Saha stayed later some nights than Dr Soldati realised and that she was in fact at work more than he realised. However, as he stated, what matters is not the number of hours being worked but the amount of progress being made, and she was falling behind on a number of tasks. It was reasonable for him to take this up with her and to indicate what he thought was required. Whilst to state that an average 10 hour working day including working at the week-ends was “absolutely necessary” appears over demanding, Dr Soldati stated in evidence that in his view 60/70 hour weeks on average are necessary for a PhD. He acknowledged that that may sound harsh but said that that is the reality that that is what other students do and that achieving a PhD requires a huge investment. He was to repeat that view in his email to the whole lab group of 22 June 2004.[78]As to “sabotage”, this was an unfortunate expression. However, the underlying point being made was clear. It was in Miss Saha’s interest to have her data included in his talk and its absence had made difficulties for him.[79]In summary, this was an inappropriately expressed email that made a litany of complaints in an overemphatic way. However, the email started and finished on positive points. It was meant to be constructive and to seek to move matters forward. It expressed Dr Soldati’s full support and invited response and discussion. It did, however, cause Miss Saha real distress.[80]Miss Saha did not respond to the email.[81]On 10 June 2004 Miss Saha met her PRP and had a viva on her renewed report. She said that afterwards she reported to Dr Soldati that she had passed her MPhil transfer and that he said “you haven’t passed yet, you have to get past me first”, pointing at himself and then walking away looking at her mockingly (“incident 1”). Dr Soldati had no recollection of any such encounter and said he would not have acted in this way. I do not find it credible that Dr Soldati would have acted as alleged. He would have been pleased that the MPhil transfer had been passed to the satisfaction of the PRP. I find that this did not happen.[82]On 11 June 2004 Dr Soldati sent another email which was alleged to involve harassment. This was the start of a series of communications described by Miss Saha as raising “the attendance issue”. The email headed “Absence!!” stated as follows:
“Dear Mowe Again I hesitated to write you this message, but you are stretching my patience over the limit ! Why are you absent today? Even if you need to be absent at short notice, the least is to inform me or somebody in the lab about the reasons. You are taking very great liberty about that and, even though I have been extremely patient about it, you are slowly but surely drifting close to a dangerous limit. I have at many occasions warned the whole lab with emphasis on you, that this rule has to be respected, which you obviously and repeatedly ignore. I hope you read this email early enough, because I want to see you EARLY on Monday morning to have a serious discussion. My last message was very precise and asked you to think about the situation. Use the weekend appropriately for a needed brain storming session and present me your resolutions on Monday. I am waiting. Until soon, Thierry”
Thierry”[83]The email reflected Dr Soldati’s frustration at Miss Saha’s failure to respond to his 29 May email followed by her unexplained absence that day. It is, however, expressed in trenchant terms with warnings about being “close to a dangerous limit”. Dr Soldati said that this was a reference to the pursuit of her project.[84]Miss Saha said that on 14 June 2004 she “confronted” Dr Soldati about the email and explained that she had tried to leave a voicemail message concerning her absence from the lab. Dr Soldati had no recollection of any such meeting. However, the terms of the email he sent later that day suggests that he had had a discussion with her, and I so find. That email stated that:
“Dear Mowe, As you told me that the message was deleted by mistake, here it is again. Despite your argument, I think that if your absences continue to be so frequent, I need a medical certificate. For the second part of the message, consider it seriously. Until tomorrow, Thierry”
Thierry”[85]The email then set out the deleted 11 June email. Miss Saha said that she found it extremely upsetting that Dr Soldati resent his email of 11 June. However, as stated, he did that because she had told him it had been deleted. Moreover, as that email made clear, he was still trying to arrange a discussion of the issues raised by the 29 May email. That Miss Saha found the resending of a deleted email so upsetting is a clear indication that by this stage she was beginning to lose objectivity.[86]Miss Saha then said that there was a further meeting with Dr Soldati on 16 June 2004 when she again “confronted” him and at which the issue of working hours was discussed. Dr Soldati said that no such meeting took place. No such meeting is referred to in the pleading, or Miss Saha’s diary notes or in any subsequent email and I find that it did not take place.[87]On 17 June 2004 Dr Soldati emailed Miss Saha as follows:
“Dear Mowe, The more I think about it, the more persuaded I become that actually some form of simple checking of your presence in the lab is necessary. If you cannot suggest a better idea, I propose that as soon as you arrive you send me an email stating “I am in” and when you go, an email stating “I am leaving”
. In this way, we will have an objective measure of time spent here and will be able to avoid arguing about it. The only, but critical step is then for you to reach the set milestones we have agreed on. Kind regards, Thierry” Thierry”[88]She said she felt that this email was malicious. This was denied by Dr Soldati who said that he had become frustrated by the fact that he had still not had an answer to his 29 May email and that his intention was to ensure that she was putting in the consistent time that was needed to get her PhD back on track. This was particularly urgent given his imminent departure to Geneva. The demand that she be required to check in and out was, however, unreasonable.[89]Miss Soldati was upset at the demands being made of her, which she saw as being unjustified and unfair. On 18 June 2004 she went to see the Departmental Administrative Assistant, Mr John Murrell, for advice. He said that she was tearful and explained that she was having difficulties with her supervisor. He advised that she contact the Director of Postgraduate Studies, Dr Mathie. He also commented in an email to Miss Saha that he agreed with her that to insist that she sign in and out every day was harassment.[90]Later that day Miss Saha received an email from Dr Soldati chasing her for a response to his email of 17 June 2004.[91]On 21 June 2004 Miss Saha met with Dr Mathie. Miss Saha expressed concerns about Dr Soldati’s move to Geneva and the taking of equipment there. The emails that she had received from him in relation to working hours were also discussed and Dr Mathie said that it was unacceptable and unproductive to require her to sign in and out every day. He said that she would have to make a formal complaint if he was to take it further. She said that she would try and deal with it herself and would send Dr Soldati a letter, which Dr Mathie offered to review.[92]Miss Saha also alleged that during this meeting Dr Mathie said that her reputation preceded her and also that Dr Soldati had written an email which had been caught in the IC screening system which would have costs tens of thousands of pounds had it reached its recipient. Dr Mathie said he had no recollection of either of these matters and that they were simply not things he would have said to her. No such email has been found and Dr Soldati said there was none. I find that these matters were not said.[93]Miss Saha also stated that she mentioned to Dr Mathie that there had been research misconduct by Dr Soldati and the loss of 16 months to her PhD. Dr Mathie had no recollection of this. If this had been mentioned one would expect him to have some such recollection and I find that it was not said.[94]Later on 21 June 2004 Miss Saha emailed Dr Soldati stating that she could not comply with his request for signing in and out emails, that he had no grounds for complaining about her apparent absences, that she had taken advice from Dr Mathie and that given that there had been “a breakdown in communication and constructive supervision” she felt that she should agree realistic goals for the project with Professor Buck, who was shortly to take over as supervisor.[95]On 22 June 2004 Miss Saha alleged that Dr Soldati spoke aggressively to her, saying that “he was writing an official complaint” against her. She said that he had been friendly to her when in front of the group but became menacing when she was on her own (“incident 2”). She said that she then went to see Dr Williams. Dr Soldati denied that there was any encounter as she described. I find that there was a lab meeting that day at which Dr Soldati was present and that Dr Soldati did complain to her in a vexed manner about her response to his emails but that he did not say that he would be writing a complaint against her. This is not something which he was then contemplating or which he ever did.[96]At the meeting with Dr Williams Miss Saha complained about the way Dr Soldati wrote and spoke to her, his unjustified belief that she was not working hard enough and his demands about signing in and out. Dr Williams was supportive of Miss Saha and said that if Dr Soldati was acting as she said then he and the department would support her and help to resolve the problems. It was suggested that Miss Saha write a letter to Dr Soldati that Dr Williams would look at and comment upon. It is not correct that Dr Williams said that Dr Soldati would “not get the support of the department” or that this was his only response to her complaints.[97]Later that day Dr Soldati sent an email to Miss Saha copying in the PRP. It stated:
“Dear Mowe, I think that it was a good move for you to search advice outside the lab. I only regret that I have had no feedback on that except your last message (copy below). In this situation and given the little time left before the move, I think it is necessary to open the topic and include all parties in the discussion. Unfortunately, times are incredibly busy for every of us right now and the only way to get it to everybody is through this and further email that I will address to Drs Caron, Hopkins, Buck and Mathie. Please, find here my assessment of the situation, with a balance of positive and less positive facts. I persist in thinking that the “escalation” is mainly due to your refusal to adopt sensible working habits. As I have always said, I personally do not want to have to control working hours, and was forced to do so only because your project is making very little progress and you refuse to see the cause in your erratic presence times. So, as long as we can agree on a binding time plan for the experiments you have to perform AND analyse, I am perfectly happy to leave the control of working hours aside. I have discussed the situation with Dr Martin Buck, who as you mentioned is the official supervisor towards the BBSRC. We agreed that the members of your PR panel are the most appropriate persons to help us set the sensible schedule for completion of your thesis work. Finally, I have now received the PR panel report on your transfer and I think that this emphasises the good points that I have repeatedly mentioned, but most importantly identifies areas where further substantial improvement is urgently needed. Therefore, it is important that we sit together you and me and outline the experimental strategies and timeline that will lead you through the final year of your thesis. At that point, I have to mention one of the major infringements of your duties as a PhD student, which is to document every experimental step and result, and to keep record of all the experiments, success and failures. This has to be recorded DAY BY DAY in your lab journal, and there should only be exceptional omission to that process. You have to keep track of your efforts, achievements, analyses and plans in a perfectly protocoled manner. This is not the case now and I request from you that this is updated before the end of next week. I will control with you the progress of that updating, and severe measures will be taken if that is not appropriately done. Before you can read my evaluation, let me reiterate that you have my full support; I won’t fail from my role as a mentor and supervisor. There is nothing irreversible, but it is time to stop kidding and take a fresh start. Best regards, Thierry”
Thierry”[98]The email then set out the text of the 29 May email under the heading “Overall supervisor assessment”. However, the average daily working hours had been changed from 10 hours to 8-10 hours.[99]Miss Saha was upset that this should have been copied to the PRP and felt that he was trying to undermine her with them.[100]Dr Soldati said that as he had still not had a response from Miss Saha in relation to how she was going to meet her milestones he felt it was necessary to involve the PRP to ensure that her progress was addressed before he left for Geneva. He said he was trying to get her out of a difficult situation with her PhD. The first part of the email made clear that the issue was not one of control of working hours but of progress on her project. To this end Dr Soldati was stressing the importance of a time plan and the keeping of records. Miss Saha took particular objection to the suggestion that she should be the subject of a “binding” time plan.[101]Later on the same day Dr Soldati sent an email to the whole research team. This stated:
“Dear All, I apologise in advance for the “strangeness” of such a communication, but the situation forces me to act like that. As you are likely aware of, the situation with Mowe has recently been “escalating”
. As is the case for many of you, and as we have been discussing it at our individual meetings, I am not satisfied with the general state of progress in the projects. This has recently become acute with the difficulties encountered by Mowe to satisfy the criteria for her MPhil transfer. Nevertheless, as I have stated to her, the situation is serious but I re-emphasised that Mowe as everybody else has my fullest support. In particular, I am 200% convinced that all three PhD students have the right calibre to be successful in their enterprise. Despite these reassuring words, I also think that some serious measures have to be implemented immediately. In a re-statement of what I just wrote to Mowe, it is my responsibility to render everybody aware of the fact that, with the current exception of Kunito you are all infringing one of your most important duties as research scientist which is to document every experimental step and result, and to keep record of all the experiments, success and failures. This has to be recorded DAY BY DAY in your lab journals, and there should only be exceptional omission to that process. You have to keep track of your efforts, achievements, analyses and plans in a perfectly protocoled manner. This is not the case now and I request from you that is updated before the end of next week. I will control with you the progress of that updating, and severe measures will be taken if that is not appropriately done. The other point of “conflict” with Mowe is the one of her working hours. In this case too, I think that the situation is particularly acute with her, but everybody can learn to a certain degree from our discussion. As I have always said, I personally do not want to have to control working hours, but this only valid as long as the agreed targets are met. On the other hand, many of the projects make very little progress and one of the cause is to be found in the insufficient time spent working at the bench and analysing data. I have said clearly that I think that an average of 8 to 10 hours a day including weekends is absolutely necessary, but it is not mere physical presence that is meant but intellectual and experimental input. Contrary to that necessary engagement, I too frequently see some of you busy with personal matters during the day or I spend hours chasing some others through the Department. This has to be reduced to the minimum that I am obviously ready to tolerate if you spend long hours in the lab. There is little time left to discuss that as a group and in individual meetings, but I will try my best to be available to anybody requesting urgent discussion. Therefore, I propose to re-schedule a series of individual meeting to cover everybody. Please, try to book the following times in your calendars: Thank you for your understanding and your constructive feedback, Thierry” Thierry”[102]Miss Saha said she was horrified that the issues between them were now being broadcast to her colleagues.[103]Dr Soldati said that he believed the research team were aware of the difficulties he and Miss Saha had been experiencing and that she had been discussing them with some of the team. He said that they were a team and the conflict could not just stay between him and Miss Saha. He also wanted to raise some of the issues with the rest of the team as they were also applicable to them. He said he was sharing Miss Saha’s issues with the team; he was not broadcasting them. Although the email identifies the “escalating” situation and “conflict” with Miss Saha, the points it makes in relation to keeping of records and working hours are addressed at the group generally, not just at her.[104]On 23 June 2004 Miss Saha said that Dr Soldati interrupted a conversation between her and Dr Regis Dieckmann, that he was aggressive and intimidating, and shouted at her (“incident 3”). Dr Dieckmann confirmed that Dr Soldati interrupted their conversation in an abrupt manner and that an argument ensued in which both of them were obviously struggling to stay in control, and that Miss Saha’s hands were shaking. He was not sure what the argument was about and said that Dr Soldati was upset and exasperated rather than angry. He also described how, when Miss Saha left for the lab, Dr Soldati followed her, continuing the argument and also began to shout.[105]I accept that there was an altercation as described by Dr Dieckmann. I also find that Dr Soldati told her to get on with her work and that Miss Saha did say that she would only meet with him with someone else present.[106]On 27 June 2004 Miss Saha sent a draft 5 page letter to Dr Soldati to Dr Mathie and Dr Williams. She explained that “I hope to put an end to all of this” and that “I have tried to keep sarcasm to a minimum, although my last comment is a phrase that Thierry has regularly used, so feel free to cut it out if you think that it is too cheeky!”. That last phrase was “it is time to stop kidding yourself, I have done my part!”. These comments support the evidence given by various witnesses that Miss Saha was someone who was generally able to give as good as she got.[107]On 28 June 2004 Dr Williams met with her to discuss the draft. He advised that the main issues related to the demands made by Dr Soldati and the tone of his communications and that going over scientific issues over the last 18 months detracted from that. Neither he nor Dr Mathie said that she should stick to the issues of bullying and harassment or that she should remove her accusation of research misconduct. Neither of them understood that any allegation of research misconduct was being made and, as already found, this allegation did not emerge until later.[108]Later on 28 June 2004 Miss Saha sent Dr Soldati an amended and shortened version of the letter. It stated:
“Re:Breakdown in communication between Mowe Saha and Thierry Soldati Dear Thierry, Taking advice from outside of the lab was my only option in trying to deal with your recent emails. I have considered them carefully and I do not know why you have taken such action, first in writing and now more verbally with regards to me and my work. Your first accusations were to my apparent absences from work for which you have not grounds, and now you attempt to pick holes in aspects of my work. Having received your email of 17th June 2004, I took advice from Dr Alistair Mathie on 21st June 2004, decided not to make a formal complaint, but instead imply notified you that I could not comply to your demands for emails stating‘I am in’ and ‘I am leaving’ (please refer to my email ‘Re: Your emails of 21st June 2004). The formal measure to copy that email to Prof Martin Buck and Dr Alistair Mathie, I must confess was my attempt to bring to a halt the aggression that I have had to face from you, your recent emails (Re:A few more things of 29th May 2004, Re:Absence of 11th June 2004, and Re:Presence of 17th and 18th June 2004) are unacceptable and your aggressive attitude towards me prior to our latest lab meeting (22nd June 2004) left me feeling harassed and bullied. I felt sick and faint throughout that meeting, a situation that I relayed to Dr Huw Williams after. The next day, I had to face another confrontation from you but this time I spoke up and made it clear that since even the current discussion was not going well, I would require a mediator to reconcile the relationship between us. Again I was surprised by your aggression which was witnessed first by Regis Dieckmann, then later by Jon Matthews. I find your behaviour distressing to me and I will not be put under these conditions by anyone, professionally or otherwise. It is for this reason that this situation has escalated and not my apparent unwillingness to abide by your demands of a 70 hour week (on our first meeting of 23rd March 2004, your actual demand was of a 12 hour day including weekends.) ….”
[109]It then addressed various work issues before concluding as follows:
“Your recent irrational behaviour, however, has resulted in this counter-productive exercise. Instead of considering a way to resolve the current situation, you exacerbate the ill-feeling by calling in all parties and even members of our lab group and they were totally unaware of the emails that you had sent me, I have since addressed the group myself and I have their full support. Kunito Yoshida finds it incredible that you question my long hours since he himself can confirm this. I am disappointed with your handling of this situation. It is unprofessional and uncalled for. There was no need for things to escalate to this stage. It surprises me that you have reacted so strongly to my work especially when you see me on a daily basis in the lab. Your attitude and emails have been aggressive, and in having to deal with this situation, much time and effort has been wasted. This energy could have been directed to more important issues such as work for my PhD. It is also a shame that you have wasted the time of the department, since they now must spend time refereeing this complaint, and as you quite rightly say, time is short before your imminent departure from Imperial College and the end of my PhD. Regards Mowe”
Regards Mowe”

Regards

[110]On 29 June 2004 Miss Saha said that she took Mike Ray, a fellow PhD student from another research group, into the lab as a “bodyguard” until all the members of the group were present and that Dr Soldati looked antagonised by this (“incident 4”). Mike Ray could not remember this although he said he would have done so, if asked. Dr Soldati said he was certain that no one other than members of the team were present at the meeting. I find that Mike Ray may have gone with Miss Saha to the lab first thing that day but he did not stay for the meeting or while Dr Soldati was there.[111]Later that morning Miss Saha said that Dr Soldati approached her when she was in conversation with a fellow student, Mr Jon Matthews, and aggressively demanded her lab book. She claimed that he was intimidating (“incident 5”). Mr Matthews evidence, which I accept, was that Dr Soldati approached them and ordered Miss Saha to give him her lab book. He said that he thought that Dr Soldati was abrupt, but not verbally or physically aggressive or intimidating. He confirmed that Miss Saha was upset by the incident and that he may have said that Dr Soldati was out of order. Dr Soldati accepted that he may have been short with Miss Saha but said that he was trying to ensure that her lab books were up to date before he left for Geneva, and that he was irritated and frustrated rather than aggressive or bullying. Miss Saha accepted that Dr Soldati was entitled to see her lab book.[112]That afternoon Dr Soldati replied in detail to Miss Saha’s letter of 28 June 2004, copying it to the whole research group, the PRP, Dr Mathie, Dr Williams and Professor Buck, seeking their help and input and expressing complete confidence that the solution is sitting down together and designing a realistic work plan. This was not an email relied upon in the pleadings although Miss Saha stated in evidence that she was shocked by it and that it and later emails cast doubt on her scientific maturity. It stated:
“Dear Mowe, Thank you for your effort to analyse the situation, reflect on the origin of the problem and for providing me with your view of the “escalation”
. Again, I think that I will have to continue to answer in writing so as to establish a firm and objective ground, accessible to all parties, on which to build the future of our professional relationship. Also in the view of the exchange of mail, I think it is important to avoid the potential pitfalls of oral communication and ensure a less emotional debate. The most important preliminary remark is that, as already emphasised in my previous letters, I desperately would like to set the discussion on the generation of a sensible work plan, but I am again forced to set some record straight concerning the work hours topic. Therefore, maybe even before reading the whole of this response, think about this realistic work plan and come to me with your suggestions. I have requested the same from all lab members, and this was your PRP recommendation. Please, understand that I would really prefer to have that behind us before writing a comment and signing the transfer form. This is no blackmail, I am just convinced that if we are reasonable and define together the objectives of your research efforts, I would be delivered of a huge weight and will be in a much better, less confrontational mood to send back your assessment form. To our mutual benefit. ….”[113]It then set out “The complete historical perspective as I recall it” It concluded as follows:
“After a few months, seeing that there was insignificant progress in the work and no improvement in sight in terms of communication, I made different tentative to convince you to change the course of your lab work. What you describe as a sudden change of my attitude is only because we have reached a threshold. I have not changed what I think, but am forced to change the way I implement my guidance cues. This is what is expected from me as a supervisor, and not as you put it as a failure to take interest in your present and future, but to provide you with mentoring both scientifically and “time management wise”
. In assessing my role, you make no balance of positive and negative and use specific and extremely negative wording such as aggression, accusation, irrational behaviour, confrontation, unprofessional, shame, and portray yourself as bullied and harassed. I hope that it is obvious that this does not reflect the situation and contrasts severely with the exposé of the facts above. In desperation, and as emphasised in my email of June 17, only to get that topic out of the way and not to make it central stage, I suggested a simple scheme that I understand now can be wrongly received but had only conciliatory intent. Please, note that I asked for your input and suggestions and have not received any response. I thought that this should allow us to concentrate on the achievements. I was wrong. Your otherwise emotionally detailed response brings very few facts concerning your assessment of the situation as concerned with progress in the project. The diary you present for the last five months is a simple and direct witness of my concerns about your undertakings and is not changed significantly if one takes into account the other lab duties that are absolutely standard in “weight” compared to most labs, even on the light side. Here, I would like again to detail some of the many facts that have led to reaching the threshold mentioned above, and that led to my present position. I was disappointed that your last letter avoided to respond and to agree on a course of (corrective) action. …”[114]In cross examination Dr Soldati said that he feared that Miss Saha was starting a campaign behind his back, involving allegations of harassment. He said he felt that matters were escalating, that his primary goal was to obtain scientific answers and for Miss Saha to produce a work plan, that his attempts to do so were getting nowhere and that he was irritated at not being able to discuss the science. Miss Saha submitted that the fact that Dr Soldati feared a campaign by her alleging harassment shows that he knew that his conduct was harassment. It does not. It simply shows that he knew that she was alleging that she felt bullied and harassed, as her 28 June letter itself made clear in its second main paragraph.[115]This was the last written communication between Miss Saha and Dr Soldati before he left for Geneva on 6 July 2004. The next stage of the alleged course of conduct occurred at the end of September 2004, so I shall address the intervening events briefly.[116]On 30 June 2004 Dr Williams emailed Dr Mathie and Professor Buck stating that:
“The Mowe Saha situation has rapidly escalated from one, which I thought last week would solve itself when Thierry left for Geneva to something, which is rapidly blowing up into something more serious. Whatever the genuine case may be for Thierry to have concerns about Mowe’s progress he has handled the situation very poorly and Mowe has strong grounds for complaint against his behaviour. If we just concern ourselves with the email correspondence then he has clearly broken student confidentially over a very sensitive issue and Mowe is understandably very angry about this, and she may well make a formal complaint to the college. He has also made what are in my view unreasonable requests, in particular stating that she should expect to work an average of 10 hours a day 7 days week. On a more positive note my view is that Mowe is determined to make the situation work if at all possible.”
[117]Dr Mathie replied as follows:
“I agree with you that Thierry has handled this issue very poorly - at best insensitively.Trying to be charitable, perhaps he is under a great deal of strain as his departure approaches, but I must say I have found myself reading (then re-reading) some of his emails with open mouthed incredulity. I remain hopeful that the situation will resolve itself when Thierry has moved.”
I remain hopeful that the situation will resolve itself when Thierry has moved.”[118]On the same day Dr Williams emailed Dr Soldati stating that “I have discussed the matter with Alistair Mathie and we are both strongly of the view that you should not be forwarding a student’s confidential correspondence to members of your lab. This is totally unacceptable”. Dr Soldati said that he genuinely had not realised the need for confidentiality as Miss Saha had been discussing the problems with the group and that he just wanted there to be open and transparent engagement as her troubles affected the whole group. However, he accepted that with hindsight matters should have been kept confidential.[119]Dr Williams tried to arrange an immediate meeting with Miss Saha and Dr Soldati to agree a way forward but Miss Saha was unavailable. He therefore met with Dr Soldati alone. Dr Soldati accepted that he had dealt with the matter poorly but explained that he had concerns about Miss Saha’s work performance and that she had no proper work plan in place. Dr Williams suggested that a memorandum of understanding could be drawn up setting out how to deal with matters going to forward. Dr Soldati was happy to agree to that, but Miss Saha was not.[120]Although it was not part of her pleaded alleged course of conduct there was an exchange of emails between Miss Saha and Dr Soldati at the end of July 2004. Miss Saha had requested some antibodies, but Dr Soldati replied that he could not provide them without knowledge of what they were needed for and stressed again the need for a detailed work plan.[121]On 30 July 2004, Professor Buck, who had taken over as Miss Saha’s main supervisor, requested a detailed work plan so that he could sign off on the MPhil transfer. This picked up on the fact that in her transfer report the PRP had noted that there was no realistic research plan.[122]Having consulted with Professor Hopkins, Miss Saha provided a detailed plan on 13 August 2004.[123]On 14 and 15 September 2004 there was a civil exchange of emails between Miss Saha and Dr Soldati concerning a request for fresh RNAs and again on 20 September 2004 regarding a contamination of cells problem which had occurred at the lab.[124]On 27 September 2004 Miss Saha met with Professor Buck. She said that she tried to discuss the harassment that she was facing and was told to “draw a line under it”. He denied that any allegation of harassment was made or that he would have said or did say the words alleged. I accept his evidence. I am satisfied that if an allegation of harassment had been made the meeting would have taken a different course.[125]Miss Saha also met with Dr Mathie that day and discussed the possibility of making a complaint against Dr Soldati. He advised her to concentrate on completing her PhD, although he made it clear that it was her decision.[126]On 28 September 2004 Miss Saha met with Dr Soldati in the presence of Dr Williams. As Dr Williams explained in evidence, the meeting was generally positive with a discussion of the scientific progress of Miss Saha’s research, and with both of them being professional in manner. However, at the end of the meeting, which took about an hour, Miss Saha raised the question of her attendance at the annual meeting of the ASCB in December 2004. The tone of the exchanges changed at this point. Miss Saha was aggressive and demanding in her approach, as if she had the right to go and be paid for by Dr Soldati. However, he expressed concern that her research was not at the right level to be presented at an international meeting although he expressed a willingness to pay for her to attend the following year. The meeting became tense but Dr Soldati did not say “no”. He asked Miss Saha to check the cost and relevant deadlines and said he would think about it. She supplied pricing information by email on 30 September 2004.[127]On 1 October 2004 Dr Soldati emailed Miss Saha explaining that he did not think she should attend the conference. This was the first of a series of allegedly abusive emails at this time which Miss Saha characterised as again raising the “scientific maturity issue”. The email stated:
“Dear Mowe I have carefully considered your request to participate in the December 2004 ASCB meeting and the considerations in favour and against this travel. Please, find here my decision and the arguments: As a way of introduction, please let me repeat here some background information that all other group members are aware of but that needs to be reiterated for other parties. I always tell my students and postdocs that I consider beneficial for themselves, the group and projects if they participate at about one meeting a year. Experienced postdocs should be able to visit an international meeting, whereas students should visit a “local” meeting during the second year and optimally, an international meeting in the third year. I am not aware of any duty in that regard, just possibly a recommendation. The conditions for participating in a meeting is the capacity to present and defend the project, and also to capture and report of the developments in one’s area. Presenting the project is strongly linked to the fact that the timing has to be right. It should not be too early, too preliminary, because there should be novelty and enough solidity so that the project can attract attention and stand the scrutiny of experts. It should be as close as possible from submission of a manuscript, so as to avoid being scooped. Benefitting from the input of other scientists depends on one’s scientific and intellectual maturity. Since the beginning of your thesis, you have participated in the 2003 UK Dictyostelium meeting, a 2 day local meeting with a very high level of presentations and participation, including a few participants from continental Europe and North America. You are welcome (and scheduled) to participate in the 2004 edition in December. Now more specifically to the ASCB question. The two questions that have to be answered are: Is it the appropriate timing for you to visit this meeting? And can the group and you benefit from your attendance to the ASCB meeting? First, I maintain that participating in a conference means to present one’s project, defend the group’s science and not being just a spectator. De facto, independently of the circumstances (that is another debate), I think that there is not enough new data/information from the project to grant a valuable poster presentation. In addition, judging on the production during the last six months, I cannot be certain that the next two months will bring the expected breakthrough. Moreover, a poster is not just made of a pile of fresh data, but a poster (like a paper) is a message. Therefore, the data will require a process of interpretation and integration, the length of which we cannot predict before having seen them. The conclusion to this crucial point is that the timing is not appropriate. Second, I have no doubt that you find the attendance to such a meeting attractive and that it would represent a personal and intellectual enrichment. Nevertheless, even though you are convinced of your capacity to report on the novelties in your domain and the input from other researchers, we have not enough scientific and intellectual discussions in the last six months so that I can judge your maturation in that domain. The conclusion to this point is that the balance is not positive enough to grant participation. In addition, such a visit should be planned and discussed long in advance, so as to develop the strategy of what to present and how. Also, the BBSRC does not grant any money for such travel and for attending a conference, meaning that either I have to “divert” money from another project or we have to apply for external funding. It is very likely too late for the latter. Your costing of the travel is about right, except that the meeting starts on Saturday morning and finishes on Wednesday late afternoon, thus you would have to spend up to two more nights in Washington. Also, you will probably having living expenses for meals etc. I estimate the cost much closer to 800 to 1000 GBP. The final conclusion is that I regret to have to say that don’t agree to finance your participation to the 2004 ASCB meeting. What are the alternatives? I am aware that it is difficult to foresee you eventual participation to the 2005 ASCB meeting, because it involves a prolongation of the financial support, which cannot be secured at present. On the other hand, there are alternative meetings, taking place earlier in the year and with a similar overall thematic that can be visited in 2005. This included the BSCB meeting in Warwick from 6 to 9 April 2005 and the ELSO meeting in Dresden from 3 to 7 September. I am happy to consider additional meetings that you become aware of. I sincerely hope and trust that the coming months will bring the awaited exciting data that you deserve and that this will in turn grant your participation in an international meeting of excellent repute. With my very best Good luck wishes, Thierry”
Thierry”[128]Miss Saha alleged that the email demeaned her “scientific and intellectual maturity”. Dr Soldati denied this. He explained that the point he was making was that a student should only participate in such a meeting when their research has reached maturity. He said that you need to be able to present and defend your work and that that work had to be sufficiently near completion to avoid anyone taking your ideas.[129]Following receipt of the email Miss Saha went to see Dr Mathie. He advised her to concentrate on completing her PhD rather than travelling to meetings.[130]Miss Saha replied to Dr Soldati on 4 October 2004 taking issue with his decision and the reasons for it and highlighting the effect of lab contamination problems.[131]Dr Soldati responded on a point by point basis on 5 October 2004. Some of Miss Saha’s points relating to lack of progress in the lab were refuted in trenchant terms:
“That’s an obvious exaggeration”; “That’s a lie”; “That’s also out of all proportion”
. However, in each case there was a factual basis for the refutation, however strongly it was expressed.[132]Dr Soldati also commented that:
“The decision I presented was not easy to take and I am sorry that it disappointed you. You are getting more than “some” support I have been scolding you (and the lab) very often to participate in seminars at IC or around, not always with great success. As I also mentioned, I have offered at repeated occasions to send you to an external meeting, including the BSCB, without attracting attention.”
[133]The email concluded as follows:
“NO, definitely no! With only the rarest exceptions, attending a conference implies presenting data. I will not repeat myself or change my mind; I exposed these arguments clearly and constructively in my last message. Anyway, I am still of the belief that I should be allowed to attend this meeting. I personally would benefit from such a conference as would our team with reports from both Yosuke and myself. My final word is that, because I honestly and frankly judge it inappropriate to present your project (which is also mine) there and at this precise time, I cannot justify supporting your travel and attendance. Nevertheless, if you were to organise to finance this by external sources, I obviously do not nor can bar you from participating to that meeting. I will continue to support you in anyway I can to further the progress in the project and along the path that will lead to your PhD degree. With my most sincere wishes for you and for your experiments. Thierry”
Thierry”[134]Miss Saha said that the comment made about non-attendance at IC seminars was untrue and involved victimisation. Dr Soldati said that he had on a number of occasions asked the whole of the team (not just Miss Saha) to attend more lectures and seminars. His impression was that Miss Saha (and others) were not doing so.[135]Miss Saha responded by email on 5 October 2004 taking issue with various matters and concluding rather belligerently:
“Claiming that it is only now that you hear of these things is not acceptable. I am not expected to know that you need repeated help with understanding certain issues, however, if putting things in writing helps you with basic concepts, then please let me know. In future, keep your emails concise.”
In future, keep your emails concise.”[136]Dr Soldati replied by email on 6 October 2004 stating that no further comment was necessary.[137]The next alleged harassment by Dr Soldati concerned an incident during a UK Dicty conference at Cambridge in December 2004 (“incident 6”). Dr Soldati had arranged for the whole team to attend the two day conference and had paid for B&B accommodation for them all. Miss Saha attended the second day of the conference. She said that she went into the lecture theatre to pick up her coat and bag and noticed Dr Soldati on the opposite side of the theatre talking to some people. She said she went to leave and as she did so she allowed the door to swing back as she thought no-one was behind her. She said that in fact Dr Soldati was just behind her. She said that coming across the theatre hall in this way was intimidating and menacing behaviour on his part.[138]Dr Soldati had no recollection of seeing Miss Saha or of this alleged incident. I am not satisfied that it occurred. If it did, it involved Dr Soldati exiting the theatre behind Miss Saha, in common with others. There was nothing objectively intimidating or menacing about it. It is to be noted that no mention was made of it in Miss Saha’s email to Professor Hopkins of 28 December 2004 in which she said that Dr Soldati had avoided her completely at the conference.[139]A further allegedly abusive email was sent by Dr Soldati on 27 December 2004. It stated:
“Dear Mowe Please accept my apologies for sending this message in the midst of the festive days, but I did not find time to do it right after my visit of 14-17 December, and it is too important to be left for much later. I am sad and fed up with the situation. I had made the schedule of my visit available and you had accepted to meet with me but…did not bother showing up. You again missed this long due individual meeting that is surely essential to guide you through the difficulties that you briefly reported having (email 9/12/04). The next outrageous example of your behaviour was the “performance” at the group meeting. This was a unique occasion to present and discuss your project in front of the usual lab members plus the three new from Geneva. Instead of preparing a brief expose that would highlight what are your realistic aims and the strategies you are using to approach them, you simply delivered your transfer viva talk from March 04 without changing a word, without changing the completely outdated time frame for completion of milestones. Before I stopped you and asked to change the scope and manner you were presenting the old data without changing a word to the March interpretation, ignoring our discussions and the advice and corrections from your PR panel. A shame and useless for the new lab members because you did not even bother explaining the methods and tricks you use. It sadly did not stop there. I asked who would be present at the UK Dicty meeting in Cambridge, so as to make the final arrangements for accommodation etc. I am again ashamed of your behaviour, as you did not show up on the first day, leaving a “no show” bill of GBP40.00 for your booked room to the graciousness of the taxpayer. It is time you decide as an adult and a reasonable scientist the course you want to give to this painful situation. At present, bluntly speaking you are becoming an obstacle to the advancement of that exciting project and I find it more and more difficult to endorse the financial burden of your “work” financed through the grants covering the other projects. Yours Thierry”
Yours Thierry”

Yours

[140]Miss Saha said she was mortified by the criticisms being made which were humiliating to her and again cast doubt on her scientific maturity. Dr Soldati said that he felt that he needed to raise the concerns he had over her performance and that she had been acting erratically and not as a mature scientist. He did not consider her work or her progress up to scratch and was increasingly concerned at the justification for his continuing funding of parts of her work.[141]The final alleged incident occurred on the evening of 1 February 2005 (“incident 7”). Miss Saha worked on the 5th floor that evening opposite the office which Dr Soldati usually used on his visits to IC. She checked and could see that the lights were off. The next day she received an email from Dr Soldati requesting certain materials and stating that: “Yesternight, pretty late, it was nice to see you were alive and working”.[142]Miss Saha said she was distraught when she received this email as she had taken every precaution to ensure that Dr Soldati was not in the building. She said she now felt that she was being stalked by him.[143]Dr Soldati’s explanation, which I accept, was that he was working in an office which he had been allocated which looked over the atrium. At some point in the evening he had seen Miss Saha working at her desk and was glad to see her putting the time required into her project. He did not announce his presence to her at the time because of their strained relationship but thought he would acknowledge that he had seen her working when emailing her on other matters the following day. There was nothing sinister in this incident.[144]Although it was not pleaded, Miss Saha also relied in evidence on a further incident on 4 February 2005 which she alleged involved the theft by Dr Soldati of her materials. She alleged that Dr Soldati had removed experimental materials from her lab drawer and had rummaged through her desk.[145]In his 2 February 2005 email Dr Soldati had asked Miss Saha to prepare certain strains that he wanted to take back to Geneva, as he had previously requested. He had also told her that he wanted to take back a sample of the CARMIL primers and protocol and data on the topic. These were materials that he was entitled to as the supervisor funding the research. He received no response so he took small aliquots of each material he needed, making sure that he left her all the reagents she would need for her experiments. He was accompanied by Dr Blancheteau and Dr Von Heyden at all material times. I find that there was no theft. Dr Soldati took materials that he was entitled to and did not jeopardise the advancement of her project. As he said, Miss Saha’s project was also his project.[146]Miss Saha also alleged that certain emails sent by Dr Soldati asking for the return of equipment were harassing and were intended to interfere with her work, in particular a request for a dongle and a laptop. I find that his requests were reasonable and in any event he did not persist with them. The dongle issue was not pursued and she was allowed to keep the laptop.[147]As to alleged harassment by Dr Von Heyden, the main alleged incidents relied upon by Miss Saha were:(1) throwing away her stocks of tetracycline antibiotics on 24 May 2005;(2) interfering with her experiments by placing his flasks in a shaker she had been provided with without giving her prior notice;(3) denying her access to the communal computer;(4) denying her access to a lab room.[148]I am satisfied that there is no substance in any of these allegations. It is correct that the relationship between Miss Saha and Dr Von Heyden became strained. Miss Saha increasingly worked on her own and became uncooperative and at times aggressive. However, although there were disagreements between them from time to time, at no stage did Dr Von Heyden seek to disrupt her work.[149]As to (1), Dr Von Heyden accepted that he had thrown these stocks away but did so in good faith, as part of general housekeeping, as the stock was dissolved in water, rather than ethanol, as he understood the manual to require. In any event it would take only a few minutes to make new stock.[150]As to (2), Dr Von Heyden could not remember this incident. It is possible that he did use the shaker, but a lab environment is meant to be collaborative and, if he did so, it was not done with any disruptive intent.[151]As to (3), he did not delete her password or prevent administrator access to the communal compute or otherwise obstruct Miss Saha’s use of the communal computers.[152]As to (4), there was a locked room at the back of the lab used for consumables for which a key was generally kept in the lab. I accept Dr Von Heyden’s evidence that he did not remove the key or seek to conceal it from Miss Saha in order to interfere with her work, or otherwise.[153]In so far as there were other allegations of harassment made against Dr Von Heyden in the pleadings I find that they have not been proved. He did not bully or harass Miss Saha, or collude with others so to do.[154]As to the alleged harassment by Dr Blancheteau, the main alleged incidents relied upon by Miss Saha were:(1) being wrongly accused of causing toxic spillages, and(2) taking away her equipment.[155]Again, I find that there is no substance in these allegations.[156]As to (1), it was alleged that Dr Blancheteau came and fetched Miss Saha and required her to clear up a spillage in her work area, which she said she had not caused. He had no recollection of this incident. He said that she was notorious for not clearing up after herself. If this incident occurred, I find that Dr Blancheteau acted in good faith and on the basis that he understood that she had caused the spillage. If so, it was reasonable to insist that she cleared it up.[157]As to (2), if Dr Blancheteau ever took Miss Saha’s equipment it was done in good faith and I accept his evidence that he would not and did not seek to disrupt her experiments.[158]In so far as there were other allegations of harassment made against Dr Blancheteau in the pleadings I find that they have not been proved. He also did not bully or harass Miss Saha, or collude with others so to do.[159]Although relations between Miss Saha and the other lab team became difficult, none of them sought to disrupt her work. They were all responsible scientists, intent on carrying out their own work with as little disruption as possible.

Conclusions on the alleged course of conduct

[160]I find that a number of the alleged incidents are not proven, and those that are proved do not involve harassment. At most they involve treating Miss Saha in an abrupt, peremptory and at times vexed manner. They do not involve aggressive, bullying or threatening behaviour.[161]The emails speak for themselves. There is little doubt that a number of Dr Soldati’s emails to Miss Saha were expressed in an intemperate, high handed and at times accusatory tone. Underlying them was a concern that Miss Saha’s PhD should be kept on track. There were real issues concerning her progress and the need for a clear work plan going forward. Dr Soldati’s imminent departure to Geneva in July 2004 heightened these concerns and brought them to a head. Dr Soldati’s concern led him to make unreasonable claims and demands in relation to working hours and to proving her working presence. Dr Soldati genuinely believed that Miss Saha had not been working as hard as she should have been. She did keep different hours to others in the lab group, there were periods of absence and she was falling behind on parts of her project. However, I accept that she had in fact been putting in more hours than Dr Soldati realised, so one can understand her grievance at this complaint. However, it was made in good faith and in her perceived interests. Dr Soldati also should not have shared Miss Saha’s informal complaint with other members of the lab team. He did so because he understood that she was raising these issues with them and they therefore needed to be addressed and also because some of them applied to others. However, Miss Saha’s complaint was confidential and should have remained so.[162]There are therefore a number of grounds upon which Dr Soldati’s behaviour in June 2004 can be criticised and had he continued to act in the same manner, and to insist on unreasonable demands and to ignore confidentiality issues, a course of conduct capable of constituting harassment might have been made out. However, he did not do so. He took on board criticisms made of his behaviour and did not continue to insist on matters such as particular working hours or proof of work presence. Nor did he continue to flout her confidentiality. He did insist on a work plan being produced, but that was a reasonable request and in line with the MPhil transfer report.[163]Further, after 6 July 2004 Dr Soldati’s contact with Miss Saha was minimal. He would make monthly visits to IC and she would attend group meetings, other than that in August 2004. Any one to one contact was in the presence of others, as in the September 2004 meeting with Dr Williams.[164]That meeting was generally constructive and productive. The tone only changed at the end when Miss Saha raised the issue of her attendance at the ASCB conference. That request was pursued aggressively by her. Dr Soldati’s refusal to fund her attendance was reasoned and reasonable. The explanation given necessarily involved commenting on the extent of Miss Saha’s scientific maturity, but that was not done to demean her and did not involve any attack on her integrity.[165]Thereafter there is no substance in the complaints made. There was no incident of note on 17 December 2004, 1 February 2005 or 4 February 2005. The tone of Dr Soldati’s email of 27 December 2004 can be criticised but this reflected his growing frustration and, like most of his emails, did include justified criticism.[166]On analysis, Miss Saha’s real complaints therefore relate to Dr Soldati’s conduct from the end of May to the beginning of July 2004. However, her concerns were addressed by Dr Williams and Dr Mathie, and by Dr Soldati. The unreasonable demands he had made were not persisted in, there were no further proven incidents and only a few further emails. That being so there is simply no sufficient course of unreasonable conduct capable of constituting harassment. In any event, I find that his conduct during that summer period, whilst unreasonable and unjustified in some respects, did not cross the boundary from unreasonable and unattractive conduct into oppressive and unacceptable behaviour.[167]In particular, at all times Dr Soldati’s prime motivation, both subjectively and objectively, was to get Miss Saha’s work on track. He repeatedly stressed this aim and his full support for her, as well as praising positive aspects of her performance. His conduct was not objectively calculated to cause alarm or distress, even if at times it did cause distress.[168]Further, many of the matters complained of were not targeted solely at Miss Saha. The average 10 hour day working requirement, the keeping of up to date lab books, and the need to attend more lectures and seminars were all addressed to the whole group as well as Miss Saha.[169]The context is also important. As her supervisor Dr Soldati had an obligation to ensure that Miss Saha completed the milestones necessary to secure her PhD and was working appropriately to that end. The need properly to plan ahead was supported by her MPhil transfer report and there was a degree of urgency to ensure everything was on track because of Dr Soldati’s imminent departure to Geneva.[170]Miss Saha placed considerable reliance on critical comments made of Dr Soldati’s conduct at the time. She relied in particular on Mr Murrell’s email commenting that he thought the demand made to sign in and out to be harassment; Dr Williams’ email stating that she had “strong grounds for complaint” and that “unreasonable requests” had been made; Dr Mathie’s email in reply that he agreed and that he had read the emails “with open mouthed incredulity”; and the response of Mr Chris Gosling, the Director of Human Resources at IC, to her first formal complaint which commented that Dr Soldati’s emails were “out of order” and involved a failure properly to exercise his duty of care.[171]She also relied on the oral evidence of Dr Williams that he could understand that Dr Soldati’s style of correspondence over the summer period of 2004 would cause distress and that some of the communications were harassing in nature.[172]However, none of these comments (other than that of Mr Gosling) were made in the context of a formal complaint, still less an allegation of harassment within the meaning of section 1 of the Act. When allegations of bullying and harassment were formally made, they were found not proven. Whilst Dr Williams and Dr Mathie accepted that the earlier emails relied upon were in respects unacceptable, much of that related to their tone and Dr Soldati responded positively to the substantive criticisms they made of him.[173]As he explained in evidence, Dr Williams’ overall assessment was that he had been strongly supportive when Miss Saha first came to see him because Dr Soldati’s behaviour appeared to be inappropriate and insensitive and not designed to get the best out of her. He talked to him and felt that it was his communication style that was the problem and not the intent. As a way forward, he made an attempt to improve his communication style, not entirely successfully, but he thought that Dr Soldati’s intent was to support her PhD. That was the broad tenor of his emails. He was supervising in a manner which was not appropriate at times but his intent was to support the completion of her PhD. I agree with that general assessment.[174]Mr Gosling’s conclusion was to similar effect. He recognised that Dr Soldati should not have addressed Miss Saha by email in the tone which he did and that this was out of order. However, he found that “his motivation was fundamentally honest and supportive and that his exasperation with which he expressed himself was due to an honest concern (not entirely without foundation) about your progress”.[175]Dr Williams and Mr Gosling’s assessment of Dr Soldati’s intent and motivation was objectively borne out by a balanced reading of the allegedly harassing emails when considered as a whole and in context.[176]In the light of the findings I have made and for all the reasons outlined above I reject Miss Saha’s case that Dr Soldati harassed her in breach of section 1 of the Act. I find that:(1) There was no course of conduct amounting to harassment;(2) If there was, Dr Soldati neither knew nor ought to have known that that course of conduct amounted to harassment.[177]I make the same findings in relation to the allegations of harassment made against Dr Von Heyden and Dr Blancheteau.

Conclusion

[178]For the reasons outlined above Miss Saha has not proved that there was harassment of her contrary to section 1 of the Act and her claims must be dismissed.