Boylin v The Christie NHS Foundation [2014] EWHC 3363 (QB)

Case No 3MA 90339

[2014] EWHC 3363 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

LIVERPOOL DISTRICT REGISTRY

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 17/10/2014

Before

THE HONOURABLE MR JUSTICE KENNETH PARKER

Between

TRACY AMANDA BOYLINClaimant

THE CHRISTIE NHS FOUNDATIONDefendant

Mr Joel Kendall (instructed by Howard Kennedy FSI) for Claimant

Mr David Eccles (instructed by Hill Dickinson Solicitors) for Defendant

Hearing Hearing dates: 7th July 2014-16th July 2014

Judgment

The Honourable Mr Justice Kenneth Parker :

Introduction

[1]The Defendant in this claim, The Christie NHS Foundation (‘the Trust’), is a leading cancer centre which treats over 40,000 patients each year. It has a substantial research division and a school of oncology. The Trust has an annual income of about £200 million and employs 2,500 workers. The Trust also has a large adjunct charity which, through public support of nearly 30,000 members, raises significant further income and funds additional clinical and research services for the benefit of patients.

[2]In 2010 the Claimant in this action, Tracey Boylin (then aged 45), was Associate Director of Human Resources and Organisational Development of the Trust. She was not a member of the Board of Directors of the Trust, which comprised the chief executive (Caroline Shaw), the chief operating officer and deputy chief executive (Roger Spencer), the medical director (Dr Christopher Harrison), and the director of finance (Ian Moston). There had been a director of nursing and governance, but that position became vacant in July 2010, and it appears that an interim director was appointed. The Board also had several non-executive directors, including the chairman, James Martin, and deputy chairman, Sir Duncan Nichol. Tracy Boylin was not a member of the top management group, the executive team, although she did from time to time attend meetings of that group. She was, however, and had for several years been, the senior human resources (‘HR’) manager, in 2010 reporting to Roger Spencer, who was of course a member of the Board and of the executive team. She had a good working relationship with him. In September 2010 Caroline Shaw was seconded to the Strategic Health Authority, and from that time was on site at the Trust only 2 ½ days each week, leaving Roger Spencer in effect as a day to day acting chief executive.

[3]Although Tracy Boylin had left school at 16, she had worked her way up in administrative posts in an exemplary career. From 1984-1987 she worked in administration in the HR department at Bolton NHS Trust, completing an HR degree. By 1990 she was in charge of HR at Bolton College, where she remained until 1994. After 2 years’ maternity leave she returned to Bolton College, becoming director of HR. She then became in 2000 director of corporate services at Manchester Care, leaving in 2003, before becoming in July 2007 head of workforce services at the Trust. By February 2012, when her employment at the Trust ended, she was earning an annual salary of £88,753, and was on an annual incremental salary scale to about £98,000 a year. Her appraisals at the Trust were overall in highly favourable terms.

[4]Tracy Boylin was by 2010 a single mother, with two teenage daughters, aged 10 and 11.

[5]In this claim Tracy Boylin maintains that in a relatively short period between late September 2010 and early November 2010 she suffered workplace stress as a result of bullying and harassment, causing severe and lasting psychiatric injury. She brings her claim under section 1(1)(a) of the Protection from Harassment Act 1997 (‘the Act’), and in common law negligence. The applicable legal principles are not in dispute. The same cannot be said of the facts, which were hotly contested over a five day trial. Background

[6]By 2010 the NHS generally had become subject to significant restrictions on funding and other pressures. The Trust, in line with other NHS bodies, needed to ensure the efficiency and effectiveness of its operations without compromising the quality of its services to patients. Caroline Shaw (who gave oral evidence at the trial) decided to initiate an ‘executive review’. That review would consider, first, the scope of the present top executive functions, and would then move on specifically to examine the HR function. Caroline Shaw believed that an experienced external consultant should be engaged to carry out the executive review. She instructed Warren Partners to find and put forward suitable candidates. Warren Partners put forward three names. Caroline Shaw provisionally decided upon Christine Pilgrem, whose subsequent alleged conduct lies at the centre of this claim. Caroline Shaw appointed her on 26th July 2010 as an external consultant to carry out a comprehensive executive review, over a contemplated period of about 6 months.

[7]There appears to have been no specific written terms and conditions of engagement, but it was not disputed in these proceedings that Christine Pilgrem, in carrying out her remit, had to behave in an acceptable manner, and had, in particular, to refrain from bullying or harassing any employee of the Trust. She was to work for 2, sometimes 3, days a week, receiving a daily fee of £700. Caroline Shaw informed employees that Christine Pilgrem had been engaged and explained broadly the nature of her remit.

[8]Christine Pilgrem could fairly be described as a well educated high flyer, who had held at board level within large private sector corporate groups responsibility for HR, a role requiring her both to take a more panoramic view of corporate affairs and to make a broader contribution, beyond the HR function, to the management and development of the relevant businesses. It appears that she had a reputation as a tough executive who did not ‘suffer fools gladly’, a reputation that was not belied by her performance over an extended period in the witness box. Without intending any disrespect to Tracy Boylin, whose background and experience was significantly different, I believe that a potential clash of personality and style between these two individuals was predictable. Furthermore, there was clear evidence that from the outset Tracy Boylin resented the executive review: there had been a review in 2009, and she did not accept that a further review would serve any useful purpose. Her attitude, I believe, would have influenced the extent to which she was prepared actively and sympathetically to co-operate with the review. August-September 2010

[9]It appears that Christine Pilgrem and Tracy Boylin first met in August 2010, and discussed the HR function. By mid-September 2010 the executive review had moved forward to focus specifically on the HR function within the Trust. Caroline Shaw thought that there was potentially a larger role for HR to play within the Trust, going beyond basic operational activities (such as employee relations, including disciplinary procedures and proceedings) into training and performance measurement, and being consistent with the ambitions of the Trust (and particularly the adjunct charity) for expansion and development. That view was shared and indeed actively advanced by Christine Pilgrem. They also thought that such an expanded and more dynamic role for HR needed a manager with commensurate experience, vision and authority, and it would be probable that such an executive would become a member of the executive team and possibly even of the Board of the Trust, where he or she could also make a wider contribution to the direction of the Trust and the charity. Christine Pilgrem would herself have plainly been a strong candidate for such an enlarged position. In cross-examination on behalf of the Claimant it was indeed put to her that she did covet the putative new job for herself, and eyed Tracy Boylin as a potential obstacle to her own advancement. However, I heard both Christine Pilgrem and Caroline Shaw on this suggestion, and I am entirely satisfied that at no time did Christine Pilgrem have any intention of taking on a full time post as HR director at the Trust. She had had similar positions in the past. She had now become, and wished to remain, a consultant, where she had independence and a less intensive work program, which better suited her current professional aspirations and private circumstances.

[10]A big question, however, was whether Tracy Boylin would be fit for the potential new role, and if not, what her place in the Trust might be. It seems to me from the evidence that Caroline Shaw, although she did have significant doubts, did not entirely rule her out as a candidate, and did contemplate the real possibility that in any event Tracy Boylin could support a new director of HR, carrying on her present functions and managing the HR team on a day to day basis. However, in my judgment, Christine Pilgrem relatively quickly formed the view that Tracy Boylin was unlikely to be the right person for the new position, and also had serious doubts whether she could adequately provide the necessary support to a dynamic new director of HR. It is also probable that Christine Pilgrem did not seek to hide that impression from Tracy Boylin and that, given Christine Pilgrem’s influence and notwithstanding the more optimistic outlook of Caroline Shaw, she became very anxious about her future prospects as the review progressed.

[11]At this juncture the Board of the Trust itself concluded that it was appropriate to appoint a director of workforce with a place on the executive team. The decision was then taken to appoint Christine Pilgrem as interim director. It might ordinarily have been considered unusual to appoint an outside consultant to such a position, but Caroline Shaw explained in evidence that, as interim director, Christine Pilgrem would be more closely engaged with the HR function within the Trust and would also gain a direct insight into the functions and performances of the top executive team, and so could be better informed for the purposes of her completing her executive review. As interim director of workforce, Christine Pilgrem would become Tracy Boylin’s line manager, and Tracy Boylin would then report to her and not to Roger Spencer (who, as earlier noted, was in effect acting chief executive from day to day). I should explain that Louise Hadley (who gave oral evidence at the trial) was in a comparable position to Tracy Boylin, as associate director of corporate development. She too would now be reporting to Christine Pilgrem.

[12]Tracy Boylin would not have welcomed this appointment. First, she would not understand why she, as senior HR executive, rather than Christine Pilgrem, an external consultant, had become the interim HR executive. Second, as already noted, there was an underlying personal antipathy between the two women, with Tracy Boylin somewhat intimidated by Christine Pilgrem’s background and experience. Third, she was now reporting to an HR professional (Roger Spencer was not in that category), who would be likely to scrutinise her performance closely and to identify possible limitations to her management skills. Christine Pilgrem required, on a mutual basis, that Tracy Boylin ‘open’ her business diary, so that her engagements and movements were transparent. It is clear that Tracy Boylin resented that requirement, not accepting that it was a legitimate and normal procedure of efficient management, but perceiving it as an officious interference with her autonomy. This also led to difficulties noted below.

[13]On 16 September 2010 Caroline Shaw met with both Tracy Boylin and Louise Hadley to tell them what had been decided. Caroline Shaw at the meeting said nothing to the effect that either Tracy Boylin or Louise Hadley would cease to line manage her own particular team. It was not intended that Christine Pilgrem would take over the direct line management of the HR or corporate development employees, and nothing was said to that effect. Louise Hadley (currently director of fund raising and corporate affairs at the Trust) was an impressive witness, being clear, succinct and firm, and she was quite sure that she left the meeting knowing that she, like Tracy Boylin, would continue to line manage her own team, but would now be reporting to Christine Pilgrem. Louise Hadley understood the purpose of the executive review and did not resent Christine Pilgrem’s appointment, and she appeared to get on easily with Christine Pilgrem in the limited contact she subsequently had with her, evidence that came as no surprise to me, having had the advantage of comparing these two women in the witness box.

[14]Louise Hadley was also adamant that at the meeting Caroline Shaw showed her a draft of a letter that was intended to be sent, and was sent, to the workforce to explain, among other things, the appointment of Christine Pilgrem as interim director and the changes in line management. Neither Caroline Shaw nor Tracy Boylin could recollect that such a draft letter was produced at the meeting but Louise Hadley’s recollection was so firm that I accept her evidence on this matter, particularly where it could reasonably be expected that the chief executive would show to the two employees most directly affected by the impending change in line management a draft of the proposed communication to the work force of the change in question. In any event I am entirely satisfied on the evidence that Tracy Boylin knew in advance, first, that she would continue to line manage her own team, and, secondly, that the workforce were to be told about the impending change.

[15]At 9.41 am on 23 September 2010 an email was sent, with the title ‘update from Caroline’, through the global address to the workforce, attaching a letter from Caroline Shaw. Christine Pilgrem had in fact drafted the letter, amended in minor respects and approved by Caroline Shaw. Considerable energy was expended in these proceedings on this letter. The relevant part read as follows: “ … One of the other key recommendations [of the external executive review] was to consider the remit of Human Resources given the demands of the coming years, with particular regard to transactional HR services, employee relations, change management and organisational development. This needs careful thought and is not something I want to rush into. Therefore I have asked Christine Pilgrem, who conducted the review and is herself a seasoned HR Director, to work with us on a part time basis over the next 6 months to develop these proposals. This will be carried out with consultation with many parties and any proposals will be carefully reviewed to ensure they add genuine value. In order that Christine can carry out this work, I have asked her to directly line manage the HR function and be a member of the Executive Team. This in no way reflects negatively on Roger’s or Tracey’s performance and indeed we have seen significant improvements in the HR services under their leadership. Given the links between Corporate Development and Organisation Development, I have also asked Christine to act as Line Manager to Louise Hadley, Corporate Development Manager. I hope this clarifies these changes we have made and the reasons for them”. (emphasis added)

[16]There was conflicting evidence about how the workforce in HR reacted to the letter. Diane Jackson (who gave oral evidence) was a member of the HR workforce, organising payroll, and her evidence was that the real immediate concern of the team was the manner in which the letter, most directly affecting HR employees, had been circulated at the same time to all divisions through the global network. Tracy Boylin was at a meeting when the email was dispatched, but took a phone message from Diane Jackson who later read the letter to her over the phone. In her witness statement Tracy Boylin said that she was ‘horrified’ by the letter. That, in my view, if accurate, was an exaggerated reaction, for she knew the purpose of the executive review and had been told in advance of the changes referred to in the letter. Tracy Boylin in any event telephoned Roger Spencer who came to meet her team in the afternoon and who, according to his account, that I have no reason to doubt, sought to assuage any concern in the team that the executive review heralded a reduction in the HR workforce.

[17]Tracy Boylin knew that Christine Pilgrem was now her line manager. In my view, she could reasonably have been expected to raise any question concerning the content, style or method of delivery of the letter with her line manager, and to do so by speaking directly to her in a calm, measured and professional manner. Instead at 5.31 pm that day she sent a somewhat emotional text message to both Caroline Shaw and Christine Pilgrem, in the following terms; “…today I have received several telephone calls informing me communication has gone out to all staff saying I no longer have line management of the HR function. I was then asked by distressed members of the team if I could return and explain this. …I was not aware I would not have line management responsibility anymore and this has had a huge impact on me today. Please could you try and help me understand next weekwhythis has been communicated in this way...” (my emphasis)

[18]In my judgement this is a telling text. Although the letter of 23September 2010 had been infelicitously worded, Caroline Shaw had on 16September 2010 unequivocally told Tracy Boylin that she, like Louise Hadley, would continue to line manage her own team, and Caroline Shaw had said nothing to the contrary between 16 September and 23 September. Tracy Boylin, therefore, had no legitimate grounds for believing that she was losing this line management of her own team. Nonetheless she was texting her chief executive on the footing that the chief executive had indeed taken away her line management, without informing her in advance, and was seeking an explanation for her chief executive’s conduct in telling the whole workforce of her loss of line management at the same time as she was for the first time informed of such an important change in her status. Louise Hadley received the same letter but, as she stated in evidence, did not doubt for a moment, given the meeting with Caroline Shaw on 16 September 2010, that she was retaining the line management of her team. Furthermore, there is no corroborating evidence that any member of her team had interpreted the letter in the way that Tracy Boylin asserted, or that any member of her team asked her to return and explain the loss of line management. On the contrary, as already noted, Diane Jackson, who had alerted Tracy Boylin to the receipt of the letter, was concerned, not about the content of the letter as such, but about the manner in which it had been sent.

[19]In the text, therefore, Tracy Boylin took the opportunity of manufacturing a picture of herself as an aggrieved victim of what would have been seriously unprofessional if not duplicitous conduct by her superiors, when she ought on mature reflection to have known that her grievance was without any solid foundation.

[20]At 6.22 pm Caroline Shaw replied by text, saying that she had asked Christine Pilgrem to telephone Tracy Boylin. That was a perfectly proper response. Christine Pilgrem did try to speak to Tracy Boylin, who was now at home but it appears that Tracy Boylin did not answer the calls and did not seek to ring back. Christine Pilgrem then left a text message that she needed to speak to her right away and asked her to ring her back as soon as possible. Tracy Boylin, therefore, had the opportunity of speaking to her line manager immediately with a view to clarifying the situation or at least to agree a mutually convenient time to discuss the matter. Instead she sent a text saying that her young girls were with her and asking, somewhat vaguely, if she could call ‘another time’. Christine Pilgrem then left a voicemail message saying that she was unhappy with Tracy Boylin’s text to Caroline Shaw -an understandable reaction in the circumstances that I have set out- and that she would call first thing in the morning, so that she could report the outcome, as instructed, to Caroline Shaw.

[21]Asked in June 2011 about the foregoing incident in the context of the grievance process, Caroline Shaw described Tracy Boylin’s conduct as ‘immature’, which was, in my view, a fair assessment. It was not the conduct to be expected of a mature and responsible senior executive in a large organisation, and it is likely to have reinforced doubts whether Tracy Boylin had the qualities needed for the new role of director of HR. In the context of this claim, Tracy Boylin revealed herself as a person prepared to manufacture a grievance without good cause, to exaggerate, to see a situation only from her own narrow viewpoint and, in her own interest, to misrepresent events. 24 September 2010

[22]Christine Pilgrem rang Tracy Boylin the following morning at 8.45 am. It was a Friday, but Tracy Boylin was taking part of her annual leave on that day. Tracy Boylin in her evidence stated that Christine Pilgrem became ‘aggressive’, and said that she was ‘extremely angry’ that Tracy Boylin had involved Caroline Shaw. She alleged that Christine Pilgrem ‘began to shout at her’ and said that if she wanted to ensure she remained in work she had better ‘play ball’. She became very distressed, burst into tears, told Christine Pilgrem that she was going to hang up the phone and would speak the following week. Christine Pilgrem in her evidence denied that she had been aggressive or angry or had shouted at Tracy Boylin. It was not in her interest to upset Tracy Boylin. She expressed surprise that Tracy Boylin had not discussed the letter directly with her, and that she had sent such an emotional text message in circumstances where she knew in advance about the management changes and that a communication was to be sent to the staff outlining those changes.

[23]Tracy Boylin kept a contemporaneous ‘log’ of events, that was found on her work computer. (There was also a much longer ‘log’, but that was created a long time after the events in question and does not provide reliable support). In the entry for Friday 24 September 2010 she made no complaint at all about Christine Pilgrem’s manner during the telephone conversation. Instead she reiterated her grievance about the letter and the letter’s alleged impact on her team. She had become very upset as ‘she shared with her [Christine Pilgrem] the total humiliation this [the letter] had caused and the impact on my dignity’. At the time Tracy Boylin did not make representations to Christine Pilgrem, or to Caroline Shaw, or to Roger Spencer, or to anyone else, about Christine Pilgrem’s alleged manner during the telephone conversation. I am not able to accept her evidence, contradicted by Christine Pilgrem, that Christine Pilgrem behaved in a bullying, harassing or otherwise unacceptable manner on this occasion.

[24]The relevant log stated that Tracy Boylin had a dreadful weekend and did not sleep. However, in my judgement, her distress in truth arose from her misguided and slanted view that she was the victim of senior corporate wrongdoing, and from her loss of face now that everyone knew, or would soon learn, that she was no longer the senior HR executive at the Trust, but was instead responsible to an external consultant as interim HR director, who would be monitoring her performance and reporting thereon to the Board and executive team in the ongoing review. 27 September 2010

[25]Christine Pilgrem’s evidence was that she rang Tracy Boylin on Monday, 27 September 2010 to say that they should meet on Wednesday 29 September 2010. Roger Spencer then rang Christine Pilgrem to say that Tracy Boylin was upset, and Christine Pilgrem rang back Tracy Boylin to ascertain how she was feeling and whether she was going to a working group meeting at 5 pm that evening. Tracy Boylin replied that she was not going to the meeting because she was uncertain of her position and, according to Christine Pilgrem, she asked whether she needed to look for a job outside the Trust.

[26]Tracy Boylin’s account of the telephone conversation is very different. She said that Christine Pilgrem began ‘screaming down the phone at me again for telling Roger [Spencer] that I was upset and ill’. Christine Pilgrem warned her that she ‘had to keep her on my side’, and that her employment depended on this. She would not be going to the meeting because she was feeling ill, and Christine Pilgrem urged her to reconsider and to attend the meeting. In her contemporary log Tracy Boylin recorded that Christine Pilgrem was concerned that she had told Roger Spencer that she was unwell, and that Christine Pilgrem had pressured her to attend the evening meeting. She felt ‘very threatened and intimidated’.

[27]Jason Dawson, who was then the Deputy Chief Operating Officer, was on one occasion in the office of Tracy Boylin when she received a call from Christine Pilgrem. He believed that it was in October/November, but in all the circumstances he most probably was describing the call on 27September 2010. He did not hear what was said on the other end of the line. He said that the discussion was ‘strained’, and that there was a difference of opinion, verging on argument. He thought that Christine Pilgrem was angry, but voices were not raised. He said that Tracy seemed quite shocked and upset.

[28]It does appear, therefore, that there was an exchange between Tracy Boylin and Christine Pilgrem, but on the evidence I cannot conclude that Christine Pilgrem behaved in a bullying, aggressive or intimidating manner. She was placed again in a difficult situation. Tracy Boylin had told Roger Spencer (who was not her line manager) that she was upset about recent events, after having given the impression to Christine Pilgrem that she had recovered her composure. She was also expressing concerns about the security of her position in the Trust, but, although she was not apparently medically ill, she was declining to attend a meeting (concerning cost cutting) that Christine Pilgrem believed she should, in her own interests, be seen to be attending. Christine Pilgrem would, of course, have been criticised if she had not alerted Tracy Boylin to the significance of the meeting and as to how her non attendance might be interpreted. It is understandable that Christine Pilgrem wanted to stress that she, her line manager, needed to know how Tracy Boylin in fact felt about recent events, rather than to learn second hand from the acting chief executive, and to emphasise the importance for her, during a period of review, of being seen as a fully hands on manager. I have no doubt that in these circumstances Christine Pilgrem adopted a very strong tone, but I do not accept that she crossed the line and engaged in conduct that would constitute harassment. 29 September 2010 (Wednesday)

[29]Tracy Boylin and Christine Pilgrem met on 29 September 2010. In her evidence Tracy Boylin again stated that she was ‘horrified’ by what occurred, which can be summarised as follows. First, Christine Pilgrem told her that she did not believe that she was suitable for a position as HR director, but that her job was secure for the next 6 months. Beyond that there was no guarantee. Christine Pilgrem showed certain slides that she had presented to the executive team. Tracy Boylin was distressed because: “she was talking about a role which is mine which was highlighted as a new role. I said that that I felt that this was my role and she told me that ‘this is a role that is beyond you and more suited for someone like me’ ”. (my emphasis)

[30]Secondly, she was ‘horrified’ that Christine Pilgrem was ‘monitoring’ her diary, and that she mentioned that there was a perception that she was frequently away from the Trust. Thirdly, Tracy Boylin told Christine Pilgrem that she felt ill, needed to go home and reflect on matters and to take time off as she felt unwell. Christine Pilgrem replied that she would have to take any time off as annual leave, but should soldier on, and that she was ‘pathetic and weak’. The contemporary log corroborates the nature of the topics discussed, but does not record the last observation allegedly made by Christine Pilgrem.

[31]Christine Pilgrem in her evidence also confirmed the nature of the topics that were discussed. She frankly told Tracy Boylin that in her view she would not be able to fulfil the role of HR director, but denied that she had told her that her job was secure only for six months or advised her to look for alternative employment. As to the diary and time spent out of the Trust, Christine Pilgrem said that she had noted that Tracy Boylin was frequently off site and was questioning whether she was using her time efficiently, when on site Board members needed to be briefed about employment appeals and she had to do work on an important report into cost savings.

[32]I have no doubt that this was a difficult meeting, but I do not see how Christine Pilgrem can be fairly criticised. As external consultant and now line manager, she gave her honest opinion about Tracy Boylin’s suitability for a position of HR director, and left her with no false illusions. She expressed what she believed was legitimate concern about the balance of Tracy Boylin's work in and out of the Trust. At the time of these events Tracy Boylin rightly expressed gratitude to Christine Pilgrem for her candour in the meeting. In an email the next day she said: “Thank you for spending time meeting with me and for being I think very fair and honest with your comments...” (my emphasis) One week later, on 4 October 2010, Tracy Boylin explained to Caroline Shaw why she was unable to meet at 11.30 am that morning [because she was job hunting off site] with the following introduction: “I had a very honest meeting with Christine last Wednesday [29 September 2010] and I think what came out of that meeting for me is that I have a secure position for the next six months but after that she cannot give any guarantees. She has shared she thinks the Trust should have an HR Director position, which I thought was mine but that in her personal opinion she thinks the role is beyond me. I really appreciate her honesty in sharing that as if that is the way the Trust needs to go it allows me time to find alternatives” (my emphasis)

[33]There is no suggestion in these contemporary documents that Christine Pilgrem was bullying, harassing or intimidating Tracy Boylin. Apart from gratitude for honesty, the dominant themes were Tracy Boylin’s sense of being wronged because she realised that she was unlikely to get a job which she believed was rightly hers, and her consequential distress at that realisation.

[34]As to time off, Christine Pilgrem left a voicemail for Tracy Boylin on 29 September 2010 saying that if she insisted on taking time off because she was ill, provided that it did not have a detrimental impact on service, Christine Pilgrem was content. However, she said that Tracy Boylin did need to consider how others would view her taking time off. Tracy Boylin at just after 8pm left a text message saying that ‘all of this’ had genuinely made her feel ill, and that it was better that she should have time out than ‘keeling over in work’.

[35]I note that Tracy Boylin did not specifically claim that she was medically unfit to work (and there is no evidence of a GP visit at this time), and a question arose as to how any time off work, as she put it, ‘to reflect and recharge’ should be justified. In an email the next day (already referred to at paragraph 32 above) Tracy Boylin proposed to Christine Pilgrem that ‘under common practice within the Trust’ hours that she had worked beyond what was required under her employment terms and conditions could allow time off to be considered as working time. Tracy Boylin did not wish the time to be recorded as sick leave, and she did not wish to take the time off as part of her annual leave, because the break was needed as a result of the ‘challenges I have been presented with and the impact that that has had’.

[36]It appears that Christine Pilgrem was unenthusiastic about the suggested notion of reciprocal credit for longer hours worked in the past, and sick leave was in the circumstances presented by Tracy Boylin somewhat questionable, leaving the third route (annual leave) to justify time off. From her perspective, and indeed from the perspective of the Trust, that would not seem unreasonable. The ‘challenge’ and ‘impact’ arose from an apprehension that she was not going to get a job that she thought was rightfully ‘hers’, the resulting effect on her self esteem and her sense of grievance at the injustice of the outcome. Whether that particular scenario objectively justified paid leave would not appear entirely straightforward, and I cannot regard Christine Pilgrem’s apparent resistance to Tracy Boylin’s proposal as bullying, harassment or intimidation. In the event Tracy Boylin did take sick leave on 30 September 2010 (following a morning meeting) and on the following day, Friday, 1 October. In this context it is also notable that in her email of 30 September 2010 Tracy Boylin suggested that Christine Pilgrem’s resistance to the annual leave proposal might have been because she suspected that time away from the Trust had not been on Trust affairs (falling, therefore within what Tracy Boylin called ‘the fraud remit’) and that any ‘counter credit’ would not be appropriate for that reason. However, that suggestion had no foundation, for Christine Pilgrem was examining the efficiency of Tracy Boylin’s use of time on Trust business, not implying that she was off site on her own personal affairs. Tracy Boylin was in a rather paranoid and immature manner imputing to her superior a serious charge that had not been made, and was implying that there could be no other good business reason for frustrating a proposal that was in her own, but not necessarily the Trust’s, interests. 4-8 October 2010

[37]Tracy Boylin had a meeting scheduled for 7 October with Caroline Shaw. Tracy Boylin in her witness statement alleged that ‘clearly there was little interest in rearranging this [appointment]’, with the implication that no superior wanted to hear her grievances. However, that is not borne out at all by the contemporary documents. Contacted by Tracy Boylin at 8.02am on 4 October 2010, Caroline Shaw at 8.12am immediately responded (or ‘claimed’ as Tracy Boylin put it) that she had tried to meet Tracy Boylin on Friday, 30 September 2010 (when she was not at work), and could now meet at 11.30am that morning. It was Tracy Boylin who declined the proposed meeting, because she had a clashing appointment off site for ‘another position’. In her witness statement Tracy Boylin stated that Caroline Shaw responded with a ‘somewhat menacing email’, a further exaggerated and inapt description. It was Tracy Boylin who, in rather emotional terms, had raised with Caroline Shaw the matters that had been explored at the meeting with Christine Pilgrem on 29 September 2010 (see paragraph 32 above), and Caroline Shaw responded in a measured and sensitive manner: “The Board were very keen to advertise for an HR Director post immediately, but I wanted to ensure you had the opportunity to work with Christine to prepare you to take on the challenge of a director remit, or to be able to consolidate your role to support a new director, or to be able to find a suitable alternative role outside the Trust which more closely meets your needs I am away at the SHA [Strategic Health Authority], but will see you at 8am tomorrow morning”.

[38]Tracy Boylin did then meet Caroline Shaw on 5 October 2010. That meeting provided a clear opportunity for Tracy Boylin to tell her chief executive that, if it were the case, Christine Pilgrem had been treating her in a bullying, aggressive or otherwise unacceptable manner. She did not do so. Her state of mind is captured in her contemporary log for 5 October 2010, and in her witness statement, and reveals what was the central problem of her situation. The log records: “I suppose the difficulty with this is understanding why when my performance has always been fed back as excellent through meeting with Roger, appraisals and 360 feedback what I had done to not be wanted by the Board in the role that I had held which was basically the HR Director role. I feel I have no option but to find alternative employment outside the Trust. I also didn’t sign up and didn’t believe this was the agenda the Christie had with its people. Feel really let down, kicked, abused and that a view has been taken on my ability without any assessment process so has no basis in fact…” (my emphasis)

[39]It appears that the Board wanted to make the HR role bigger and more important, and there were significant doubts whether Tracy Boylin was the right person for that bigger and more important role. In life many people perform their current jobs efficiently, even excellently, but are not promoted on the grounds only that their character, skill and competence are not regarded by those who have observed them or received information about them as sufficient for a more demanding and wider function. It does not help, and may well be counterproductive to brood with a growing sense of injustice that one has been wrongfully denied an entitlement that was due. Combined with this sense of disentitlement was a deep suspicion that Christine Pilgrem was herself after the job of HR Director, and was directly working against Tracy Boylin’s interests to promote her own ambitious agenda. That suspicion was without foundation, but it no doubt contributed to the difficult working relationship between them.

[40]Tracy Boylin met again with Christine Pilgrem on 6 October 2010. The matter of the annual leave was not pursued. It appears that in November 2010 there was to be a conference of regional HR directors, and Tracy Boylin was intending to attend for the three days of the conference so that, as she explained in her contemporary log, she could ‘think, reflect and brainstorm together [with the other HR managers] the challenges to inform plans going forwarded’. Christine Pilgrem, however, believed that Tracy Boylin needed to complete work at the Trust, both in respect of the cost cutting exercise and the preparation of pending Tribunal appeals. Christine Pilgrem, therefore, proposed that she should attend the external conference for one day only. Tracy Boylin agreed, but in her log said that she felt ‘disheartened and demoralised’. It appears that there was an underlying difference regarding priorities, the objective merits of which I cannot assess. However, in the interests of the Trust, Christine Pilgrem, as interim HR Director, had to ensure that Tracy Boylin focussed on what she genuinely considered to be more pressing needs, and thought that according priority to the immediate internal needs of the Trust would also present Tracy Boylin in a more favourable light. I reject any contention that her handling of this matter could constitute bullying or harassment.

[41]On 8 October 2010 Tracy Boylin met with Sir Duncan Nichol, the deputy chairman of the Trust. In a later email on 20 October 2010 to Sir Duncan Nichol, Tracy Boylin said that ‘following the meeting I was asked by Christine Pilgrem to give an update on our meeting as she reviews my diary and then likes to be updated on meetings I have held as my line manager.’ (my emphasis). That would have given the impression to the recipient that Christine Pilgrem learnt of the meeting with Sir Duncan Nichol only because she was ‘monitoring’ Tracy Boylin’s diary and that otherwise the meeting might have remained private and confidential. The e-mail of 20 October 2010 was not, as far as I can see, copied to Christine Pilgrem. However, Tracy Boylin records in her contemporary log that on 6 October 2010 she had received an email from Sir Duncan Nichol requesting a meeting on 8 October 2010, and that she had shown this email in advance on 6 October to Christine Pilgrem, asking her help if she knew why Sir Duncan Nichol was requesting the meeting. Christine Pilgrem said that she did not know, but would try to find out, and that Tracy Boylin should report to her after the meeting. Contrary to the tenor of the later email to Sir Duncan Nichol, Christine Pilgrem, without recourse to Tracy Boylin’s diary, learnt from Tracy Boylin herself about the meeting several days in advance, was seeking to use her best endeavours to prepare her for it, and at the same time told her to report the outcome.

[42]At the meeting with Sir Duncan Nichol Tracy Boylin discussed matters arising from Tribunal appeals. Tracy Boylin said in evidence that Sir Duncan Nichol (following discussion with Caroline Shaw) then provided a copy of the letter of 23 September 2010 and invited her to explain the source of her upset and concerns. She told him about her concerns and, according to her witness statement (but not mentioned in her log), Sir Duncan Nichol ‘agreed that having a function such as Human Resources reporting to a contractor [Christine Pilgrem] was not a sensible idea due to the case load…’. Sir Duncan Nichol did not give evidence, but it strikes me as very odd that the deputy chairman of the Board of the Trust should make to an employee who was not a Board member or on the executive team a critical comment of this nature concerning an important management decision. That decision had been proposed by the chief executive and specifically approved by the Board of the Trust, of which the deputy chairman was of course a member, and the member who assumed a special interest in the HR function. In any event, as is clear from the evidence, Tracy Boylin had not by this time said anything to either Caroline Shaw or Roger Spencer to the effect that she had been on a number of occasions an alleged victim of bullying or harassment by Christine Pilgrem. At the meeting on 8 October 2010 with Sir Duncan Nichol he had invited her to tell him why she was upset. Even allowing for the fact that the trigger for this invitation was the letter of 23 September 2010, she had the obvious opportunity to tell him in confidence that the main, or at least a substantial, reason for her state of mind and health was the alleged manner in which she was treated by Christine Pilgrem, who was in her view behaving aggressively, bullying and harassing her. She did not do so. Sir Duncan Nichol, on the contrary, was left with the impression that ‘everything was in order’. This again casts significant doubt on her account of events. In evidence Christine Pilgrem stated, and I accept, that Tracy Boylin did report to her the outcome of the meeting with Sir Duncan Nichol and said that she had told Sir Duncan Nichol that they could work together, indeed could make a ‘formidable combination’. Christine Pilgrem asked Tracy Boylin to inform Caroline Shaw of the meeting with Sir Duncan Nichol, and she denied in evidence that she had on any occasion shouted at, or become aggressive towards, Tracy Boylin during the discussion in this context. Tracy Boylin makes no reference to bullying and harassment in her contemporary log. I accept Christine Pilgrem’s evidence as to the nature of the subsequent discussion.

[43]In her evidence Tracy Boylin stated that during this period she was feeling ill and had physical symptoms of illness. However, the first recorded visit to her GP (Dr Uma Jayakumar) was on 29 November 2010 (nearly 2 months after the alleged incidents of bullying and harassment). Neither Caroline Shaw, Roger Spencer, Christine Pilgrem nor, I assume, Sir Duncan Nichol, observed any sign that Tracy Boylin might have been suffering from physical or mental illness.

[44]Diane Jackson, who had worked for Tracy Boylin since July 2008, said that at the time ‘her general demeanour was very up and down. She seemed to show her emotions’. In the grievance procedure Diane Jackson also said in effect that she had to approach with caution Tracy Boylin’s accounts of exchanges with other employees, a telling observation coming from a person in her position. Angela Bestwick, who had worked for her since July 2010, said that by the time she took annual leave at the end of October 2010 Tracy Boylin was ‘physically disintegrating in the office’. She did not say that Tracy Boylin appeared to be suffering from a physical or mental illness that would have led her, as personal assistant, to suggest a visit to a doctor or taking sick leave. From 25 October to 31 October Tracy Boylin did take annual leave. She returned to work on 1 November 2010. 10 November 2010

[45]I now turn to the events of 10 November 2010. On that day there was a meeting at 11am of the executive team, comprising Roger Spencer, Ian Moston, Dr Christopher Harrison, Christine Pilgrem, and the interim Director of Nursing. Tracy Boylin would also be attending this meeting. Christine Pilgrem and Tracy Boylin met at 9.30am before the main meeting. It appears that Tracy Boylin had to make an important presentation to the executive team the following week, and the purpose of the meeting (which would continue after the main meeting) was to work through the re-draft of the presentation made by Christine Pilgrem, to ensure that the final product would be satisfactory. On the previous day (9 November 2010) Tracy Boylin had met with Roger Spencer and had asked him for a reference. It is common ground that at the 9.30 am meeting there was a discussion about the meeting with Roger Spencer and the obtaining of the reference. The accounts then diverge. Christine Pilgrem in evidence stated that Tracy Boylin told her that she had received an offer of employment (not yet formal because checks had to be completed) from a police force, and that she was also considering two further job possibilities, one of which was with United Utilities (where Christine Pilgrem had been by coincidence HR director). Up to that point, according to Christine Pilgrem, the conversation was amicable and indeed she offered to help in respect of the possible opening with United Utilities. Tracy Boylin denied that she had received any offer from a police force or that she discussed this, or any further job possibility, at this meeting. However, on this point I accept Christine Pilgrem’s evidence. I found her altogether a much more reliable witness and what she told me again bore the mark of authenticity. Tracy Boylin, on her own evidence, had by then been actively pursuing other job offers, had sought a reference from Roger Spencer and, in my judgment, whatever the objective truth of the matter, wished now to impress on Christine Pilgrem the real likelihood that, as matters stood, she would be leaving the Trust in the near future. Christine Pilgrem said that it was in that context that she urged Tracy Boylin to consider carefully her future plans, given that she had financial and other responsibilities towards her young daughters. Again I found that evidence credible. It was at this point, according to Christine Pilgrem, that Tracy Boylin told her that she did not intend, if she left the Trust, to work out her three month notice period, and that she had already revealed to her own team that she was intending to leave the trust. Christine Pilgrem admitted that the last revelations enraged her, caused her openly to lose her temper, and to swear at Tracy Boylin in the following terms: “Tracy- I am trying to work with you here- so don’t fuck with me”.

[46]Christine Pilgrem also admitted that she did in effect threaten Tracy Boylin, saying that she was well known around Manchester and that she would be able to influence how Tracy Boylin was seen. I am sure that such a threat was credible and that Tracy Boylin would have been genuinely concerned that Christine Pilgrem, if so minded, could seek adversely to affect her employment opportunities in the area.

[47]In her witness statement Tracy Boylin gave a more dramatic account. She said that Christine Pilgrem ‘exploded and screamed’ when she learnt that Tracy Boylin had met Roger Spencer the previous day. She said that she told Christine Pilgrem that she had to look around for other job openings ‘in the event that she [Christine Pilgrem] effectively took my job’. Christine Pilgrem replied that Tracy Boylin needed to remain in post until the end of March [2011] so that in her words, ‘I did not fuck up her opportunity’. Tracy Boylin was horrified and said that she would leave as soon as she had obtained alternative employment. Then Christine Pilgrem: “came right up to my face, towering over me causing me to lean backwards and said ‘if you think you can fuck with me it will not be pretty. I will ensure you never work again in Manchester as I can make your name mud. I can have you off the premises and persuade Caroline Shaw to have an interim on site here tomorrow, so you had better play ball”.

[48]She said that, as she tried to leave the office, Christine Pilgrem blocked the door, prevented her from leaving, and in effect compelled her to continue the meeting for a short time before the 11am meeting of the executive team began.

[49]I have considerable difficulty in accepting this more dramatic version. First, I see no good objective reason why Christine Pilgrem would have reacted adversely, let alone become enraged, that Tracy Boylin had met Roger Spencer and had asked Roger Spencer to provide her with a reference. Both Caroline Shaw and Christine Pilgrem had fairly set out the three possible scenarios arising from the executive review, and one of them was the real possibility that Tracy Boylin should pursue her career elsewhere. It was, therefore, unsurprising and not reprehensible that Tracy Boylin should be soliciting a reference, and should be doing so from Roger Spencer who had been her line manager and knew her for longer then did Christine Pilgrem, and also probably had a more favourable view of her abilities. Tracy Boylin said that the discussion was ‘around me leaving the trust’. That description is entirely consistent with Christine Pilgrem’s account of the meeting. She had also been actively looking for alternative employment and her seeking a reference might well have suggested that she had received an offer that she might be minded to accept. There was no evidence that she had told other members of her team that she was intending to leave the Trust, but I am concerned with what she told Christine Pilgrem, and it seems to me more than plausible that, for her own ends, that is what she told Christine Pilgrem. It also seems to me that it would have been consistent with Tracy Boylin’s dominant mood at that time, namely, a burning sense of grievance that she was likely to be passed over for the job which rightly belonged to her, namely, director of HR.

[50]As to the reference to Tracy Boylin’s children, the ‘serious concerns’ letter to Roger Spencer reads as if Christine Pilgrem mentioned Tracy Boylin’s children subsequent to the alleged threats, and her witness statement placed the reference to the children in the afternoon, some hours after the morning meeting.

[51]Secondly, for reasons already explained, Christine Pilgrem had no ambition whatsoever to take away Tracy Boylin’s job at the Trust or to become full time HR director. She had, therefore, no reason to say what Tracy Boylin imputed to her about ‘fucking up [Christine Pilgrem’s] opportunity’.

[52]Thirdly, I reject the allegations of physical intimidation and what became further dramatised (once lawyers became engaged) as ‘false imprisonment’. The next day, 11 November 2010, Tracy Boylin wrote a letter to Roger Spencer, under the heading of ‘Serious Concerns’. In the letter she said that on the previous day ‘a very serious incident took place’. To keep the letter short and to the point she said that she was just going to relate the exact words of what Christine Pilgrem said to her, namely: “If you think you can fuck with me with [sic] it will not be pretty. I will ensure you will never work in Manchester as I can make your name mud. If you cannot think of yourself think about how this might affect your children as you have them to look after”.

[53]There had been no previous allegation of any physical intimidation or coercion on the part of Christine Pilgrem, and such conduct would have been quite extraordinary. In my view, if such extraordinary and shocking behaviour had occurred, Tracy Boylin would have told Roger Spencer about it, in graphic terms, in the letter of 11 November 2010. Tracy Boylin was not someone who would hold back such a serious allegation of misconduct if it occurred. Angela Bestwick, Tracy Boylin’s personal assistant from July to December 2010, said that Tracy Boylin had told her that Christine Pilgrem had prevented her from leaving the room, had blocked the door and had not permitted her to leave at lunch time. However, she was vague about when the allegations were made, and they could have been made as late as two weeks later. Her allegation, in my judgment, was a subsequent embellishment, which she might have convinced herself retrospectively to believe in fact happened. Tracy Boylin’s proclivity for drama and exaggeration, which I have already noted, is well illustrated by how she later described the allegation of the ‘false imprisonment’ to others. On 29 November 2010 she told her GP (Dr Uma Jayakumar) that Christine Pilgrem had ‘locked her in a room all day’. On 22 November 2010 on the form for a self referral request to the Cheshire Occupational Service seeking occupational health advice, she wrote that Christine Pilgrem had locked her in a room, and that she had been held in the room from 9.30am to 5.15pm (a period of 8 hours). On 2 November 2011 she told a psychologist therapist at the Greater Manchester West Mental Health NHS Foundation that Christine Pilgrem locked her in a room for a period of 8 hours and that ‘during the meeting she felt bullied into agreeing to conditions of silence after leaving the Christie’ (a further embellishment that appears to have disappeared).

[54]These statements were, frankly, nonsense. Tracy Boylin left Christine Pilgrem’s office to attend the meeting of the executive team at 11am, and that meeting lasted until 1 pm. There was a short lunch break and Tracy Boylin continued her meeting with Christine Pilgrem in the afternoon. Diane Jackson in the afternoon went to meet with Christine Pilgrem and Tracy Boylin and, on her arrival, found that Tracy Boylin was not present in Christine Pilgrem’s office, causing her to hesitate to enter before being invited to do so. (This was her firm evidence before me, which was inherently credible, although the note of her statements to the grievance investigator uses ambiguous language about this encounter). Diane Jackson in the grievance procedure said that there was ‘a bit of an atmosphere’ at the meeting, and speculated that it might have been because Tracy Boylin saw that Diane Jackson was meeting and working with Christine Pilgrem. Ms Jackson said generally that Tracy Boylin was ‘very up and down’ and ‘showed her emotions’. It is correct that Christine Pilgrem attended the meeting of the executive team and was again with Tracy Boylin in the afternoon. However, Tracy Boylin was under no compulsion, and could have declined to attend the meeting of the executive team because she felt unwell or on account of something that had occurred which had left her in no fit state to attend the meeting. Tracy Boylin sought to explain away the plainly inaccurate, not to say fantastic, descriptions that she later gave others, on the basis that she felt psychologically a continuing prisoner of Christine Pilgrem during the day. However, that was not an explanation that she offered, and that she candidly needed, if it was true, to offer, others who later heard her account, and I dismiss the explanation as an ex post facto rationalisation of these later manifestly false and exaggerated narratives.

[55]Fourthly, as the quotation of the letter of 11 November 2010 makes plain, Tracy Boylin purported to convey to Roger Spencer the precise threatening words used by Christine Pilgrem. However, there is notably no mention that Christine Pilgrem threatened to have her removed from the premises and to have an interim employee on site the next day. Plainly, that would have also been an extraordinary and, furthermore, a somewhat foolhardy threat (on one view, possibly constituting constructive dismissal). Christine Pilgrem denied that any such threat was made, and explained that it was on the contrary in her interests to seek to retain the services of Tracy Boylin for a reasonable period. She was experienced in her job at the Trust and a replacement would not be easy to find at short notice. On the basis of this evidence I do not accept that a further threat of the kind alleged by Tracy Boylin was made.

[56]Christine Pilgrem said that after her outburst the situation quickly returned to normal. She thought that she apologised for her language, and they resumed work for about fifteen minutes before the 11am meeting began.

[57]My conclusion on the foregoing is as follows. Christine Pilgrem did at the meeting on 10 November 2010 lose her temper with Tracy Boylin, because she was being led to believe that Tracy Boylin was likely to be leaving her job at the Trust in the very near future, and that she did not presently intend to work out any period of notice. I accept Christine Pilgrem’s evidence that her unprofessional loss of temper and foul language was also partly the result of general frustration with Tracy Boylin’s negative attitude to the executive review and, in particular, to her own position as interim HR director and line manager. Nothing justifies or excuses the loss of temper and the language, but having sought to set out some of the events of September/October 2010, I can understand her general frustration.

[58]I do find also that Christine Pilgrem did swear at Tracy Boylin, in terms that she should ‘not fuck with her’, and also (and this is the most serious aspect) said that if Tracy Boylin did not co-operate (for example, by working out her notice period), Christine Pilgrem would seek to use her influence in the area to impede her employment prospects. I do not, however, accept that the children of Tracy Boylin were mentioned as part of such a threat. Nor do I find any physical intimidation or ‘false imprisonment’. Furthermore, the incident blew over within minutes, and they were able to resume work normally.

[59]These findings are consistent with what occurred next. Tracy Boylin attended the two hour meeting of the executive team and appeared to function normally. Dr Christopher Harrison, then medical director at the Trust, and Ian Moston, director of finance and business development, attended that meeting and gave evidence at the trial. Both were impressive and, in my view, entirely honest witnesses, who said that they noticed nothing unusual or disturbing in Tracy Boylin’s demeanour or conduct in the course of the meeting. Tracy Boylin said in her evidence that at the end of the meeting she was for a few minutes alone with Dr Harrison and Mr. Moston (Christine Pilgrem having left the meeting room), and that she ‘quickly blurted out that she [a reference to another woman] had threatened me’. According to her, both looked ‘stunned’ but, on Christine Pilgrem returning, did not respond. Dr Harrison and Mr. Moston did not support that evidence and I am confident, having seen them in the witness box, that if such an allegation had been made they would have taken immediate steps to investigate the matter. They would have asked Christine Pilgrem to leave the room so that they could obtain further particulars of Tracy Boylin’s allegation, would probably have advised her to leave work that day unless there was a really compelling reason for her to remain, and would have considered what steps they needed to take, including, almost certainly, informing Roger Spencer of what occurred. It is again notable that Tracy Boylin did not mention in her letter of 11 November 2010 to Roger Spencer that she had at the first reasonable opportunity told Dr Harrison and Mr. Moston about Christine Pilgrem’s alleged conduct, a very surprising omission given her considerable HR experience and her likely appreciation of the significance of a timely complaint of misconduct. It appears to me that the alleged complaint to Mr. Moston and Dr Harrison, was, like the manifestly untrue allegation of the false imprisonment over many hours, a later embellishment to give added credence to her version of events. Tracy Boylin said that she had told Roger Spencer about her alleged complaint to Mr. Moston and Dr Harrison. He could not recall whether anything of that kind had been told to him, but I would be very surprised if he would be unable to recall such an event, if it had occurred, for plainly it would have been important for him to know that at the time of the events in question she had drawn Christine Pilgrem’s alleged conduct to the attention of two Board members. Tracy Boylin in re-examination at the trial said that she told Mr. Williamson on 1 December 2010 that she ‘had brought this [that is, Christine Pilgrem’s] behaviour to the attention of other board members’, but, if that was the case, it was long after the event when the process of embellishment had begun.

[60]The accounts diverge yet again on what happened immediately after the meeting of the executive team. Tracy Boylin said that she was precluded from returning to her own office and was in effect coerced to return to Christine Pilgrim’s office to resume work immediately. Christine Pilgrem, on the other hand, stated that at Tracy Boylin’s suggestion they went to a coffee bar on the premises, had a drink and then engaged in a fairly wide ranging and amicable discussion about the future of HR within the Trust and also about Tracy Boylin’s own options for the future. As I have said, I found Christine Pilgrem a generally reliable witness and I am not prepared to find that she simply concocted a narrative of lunch time events. In any event her account rings true. She had lost her temper with, sworn at, and threatened Tracy Boylin, and it was now in her interest and in the interests of the Trust to seek to placate her and to regain her co-operation, both immediately on the re-draft of the planned presentation, and in the weeks ahead. That was the professional way of seeking to recover from the unfortunate outburst, and if nothing else, Christine Pilgrem was professional. There had, of course, been an intervening substantial ‘cooling off’ period for reflection as a result of the meeting of the executive team.

[61]It is common ground that they did in the afternoon resume the morning meeting and worked together until about 5pm. 10 November 2010 had been a testing and trying day for Tracy Boylin. She had had quite lengthy morning and afternoon meetings with Christine Pilgrem, a person whom she found difficult and whom she in truth resented in her role as interim HR director and line manager, and the core subject matter was a presentation that had to be improved for production a few days later. Christine Pilgrem had failed fundamentally to treat her with respect when she had lost her temper, sworn and threatened her. In between there had been a meeting of the executive team where she would have been expected to be attentive and to contribute if appropriate. In her evidence Diane Jackson said that she found Tracy Boylin on her return to her own office at the end of the day crying and added that she did not think that she had seen Tracy Boylin so upset before. I do not find that observation surprising but in my judgment it does not materially assist on evaluating what precisely happened during the morning of that day. Subsequent Events

[62]I believe that I can describe subsequent events quite briefly. On 11 November 2010 Tracy Boylin came to work and handed Roger Spencer her letter headed ‘Serious Concerns’ she concluded that letter as follows: “I therefore need to make you aware that I cannot continue to have any further contact with this individual and certainly cannot continue with the line management arrangements. I therefore would like to propose that my line management reverts back to you till this matter is resolved. I would also like to propose that such are the seriousness of the threats that I work from home next week on the two days Christine Pilgrem will be on site again until this matter is resolved. I am more than happy to agree with you what that work will consist of and keep you fully briefed of the progress. I am happy to advise how to progress but in addition you also have the Trust solicitors to call upon should this be required”.

[63]Tracy Boylin told Roger Spencer that she did not wish to go through a formal grievance procedure but wanted to give him an opportunity to resolve matters with Christine Pilgrem. He told her that she did not need to return to work until he had spoken to Christine Pilgrem and Caroline Shaw about her serious concerns. Roger Spencer did then contact Christine Pilgrem and told her not to attend the Trust save for a meeting the following Monday or Tuesday specifically to discuss the concerns raised by Tracy Boylin. He then told Tracy Boylin that Christine Pilgrem would not be coming to work at the Trust. Christine Pilgrem produced a written statement setting out her account of events for discussion at the meeting with Roger Spencer. Roger Spencer saw that Christine Pilgrem admitted that she had sworn at Tracy Boylin, and had threatened her, and, having discussed the matter with Caroline Shaw, he forthwith terminated Christine Pilgrem’s engagement with the Trust. On 17 November 2010 Roger Spencer sent a general email in the following terms: “Dear Colleague, This is to inform you that due to personal circumstances, Christine [Pilgrem] will not be continuing her work with us. Management arrangements will revert back to those before she commenced with us. I will let you know in due course what arrangements will be made for the completion of the project”.

[64]Roger Spencer met Tracy Boylin to discuss the way forward. On the same day, 17 November 2010, he wrote to her, as follows: “Further to your letter of 11th November 2010, I have had the opportunity to discuss this with yourself and Christine Pilgrem. I believe I have agreed with both yourself and Christine that the matter will not be pursued and will remain confidential. Please can you confirm this to me. Your line management arrangements will revert to me as before. As I indicated, we will meet again shortly to discuss what further arrangements will be made for the work that was being undertaken by Christine Pilgrem. I will agree with you an appropriate communication of the position following this meeting”.

[65]Roger Spencer also met Caroline Shaw who said that she intended to carry on with the executive review, and that for that purpose the interim position now vacated by Christine Pilgrem would need to be replaced. On 19 November 2010 Roger Spencer then had a lengthy discussion with Tracy Boylin, in which he told her that Caroline Shaw intended to continue with the executive review, that her own position remained for the time being intact, but that he could not anticipate what changes, if any, might follow completion of the review. He also recalled that the first stage of the review, carried out by Christine Pilgrem, had flagged the prospect of director of HR, a position for which, if created, Tracy Boylin could apply. Tracy Boylin mentioned the possibility of redundancy, but he told her that that was not a realistic option.

[66]Tracy Boylin went on sick leave on 22 November 2010, and, as already noted, visited her GP on 23 November 2010, who signed her off work for four weeks. She did not return to work at the Trust after that time, and indeed has not returned to any paid employment. Roger Spencer received initial advice from the clinician in occupational health that there were no adjustments that he could make to help her return to work and that her health was such that she had extreme anxiety with regard to meeting with the Trust as a whole. On 11 February 2011 Tracy Boylin, through her solicitors at the time, submitted a formal grievance against the Trust.

[67]Roger Spencer became suspicious that Tracy Boylin, although on sick leave, had come into the Trust building and he asked the IT department of the Trust to investigate. The IT Department reported that she had entered the Trust on 20 January 2011, and that she had transferred some personnel files held electronically in the HR department to her private email address files, including medical reports about patients at the Trust, concerning three concluded HR cases. In her witness statement in these proceedings Tracy Boylin accepted that she had forwarded details of a number of cases in which she felt that the Trust, at a time when of course she was associate director of HR, ‘were behaving in an underhand fashion’. Disciplinary proceedings were then brought against Tracy Boylin, and at their conclusion her employment with the Trust was terminated in March 2012. I say no more on this matter because I believe that there are pending proceedings in the Employment Tribunal regarding her dismissal from the Trust.

[68]Tracy Boylin has received regular treatment for her medical condition. She was referred for counselling to the Simeon Centre and then was treated by a clinical psychologist, whom she saw for four or five months. She visited her GP for antidepressants. She first took citalopram for some time, then mitrazapine and later sertraline. She stated that she suffered three ‘dissociative’ episodes: she found herself in her car in Manchester on the tramlines, severely damaging her car, without knowing what she was doing, and resulting in her being taken to Manchester Royal Infirmary. On the other two occasions she was found in the garden, not realising that she was there.

[69]For these proceedings three expert medical reports were initially prepared. Dr Jeremy Broadhead MA MPhil MBBS FRCPsych made two reports on behalf of Tracy Boylin, dated 31 January 2012 and 9 August 2013. For the Trust Dr L Faith Bsc MBChb MRCPsych provided a report.

[70]Under ‘Statement of Facts’ in his first report Dr Broadhead recited that on 23 September 2010 the HR Department was notified that Tracy Boylin would no longer have line management of HR, of which fact she had not been previously informed. I have set out at some length a full account of this episode. Dr Broadhead also states as a ‘fact’ that Tracy Boylin was abused verbally by the external reviewer (Christine Pilgrem), that the treatment ‘became increasingly intimidating, and that both Caroline Shaw and Christine Pilgrem were aware of Tracy Boylin’s ‘changing mental state’. As explained earlier, having considered all the evidence, I do not find that, save for the one brief occasion on 10 November 2010, Christine Pilgrem verbally abused or intimidated Tracy Boylin, or that either Caroline Shaw or Christine Pilgrem had any grounds for believing that Tracy Boylin was suffering from any physical or mental illness. It is no criticism of Dr Broadhead, because he had no alternative but to accept Tracy Boylin’s account, but inevitably his medical diagnosis is conditioned by a fundamental misconception of relevant events. Dr Broadhead found that by January 2012 (the date of his examination) Tracy Boylin had symptoms of depressive disorder, moderate to severe, without psychotic symptoms. The disorder was appropriately treated with medicine and psychotherapy. He went on to state that her depression was complicated by anxiety and avoidance, and by her embitterment about how she had been treated (‘post-traumatic embitterment’), and the prognosis was poor.

[71]In his second report Dr Broadhead stated that Tracy Boylin remained profoundly unwell with persistent symptoms of a severe stress disorder. There had been at least three episodes of localised dissociative amnesia. The symptoms caused substantial impairment, with cognitive symptoms of an inability to concentrate, process or memorise information in a consistent, satisfactory way. She had produced a coherent witness statement and could manage and administer her affairs. Dr Broadhead believed that Tracy Boylin’s prognosis was poor. He did not think that she could ever return to a similar working environment, but she might with time manage a low level employment (such as basic shop work).

[72]I do not need to summarise the reports of Dr Faith, because her views are set out in the joint report with Dr Broadhead, dated 6/7 March 2014. The two doctors agreed that Tracy Boylin’s symptoms were consistent with an adjustment disorder and a depressive episode, which was severe but without psychotic episodes. Post traumatic stress disorder was not an appropriate diagnosis. They agreed that, if there was some resolution for Tracy Boylin in the current dispute, in particular with the end of all her current legal proceedings, the very worst of her symptoms (e.g dissociative episodes, extreme phobic avoidance) might improve.

[73]Dr Faith, unlike Dr Broadhead, had doubts about the episodes of ‘dissociation’ and concluded that they were atypical and if not due to organic brain behaviour might be ‘at least to some extent factitious’. She also doubted that the phobic avoidance was as extreme as portrayed. She was not persuaded by Tracy Boylin’s account of the severity of her symptoms and did not accept that her prognosis was poor. On the contrary, Dr Broadhead considered that her psychiatric condition was severe, very persistent and disabling. She had a strong sense of embitterment towards the Trust, and he expected her to be incapacitated to some degree indefinitely.

[74]In terms of causation neither doctor thought it appropriate to place the cause of her mental disorder on the events of 10 November 2010: that day ‘in Ms Boylin’s mind has become the focus of her aggrievement and victimisation’. In the opinion of Dr Broadhead, the cause of her adjustment disorder and subsequent depressive episode related to a ‘series of work experiences, perceived by her as negative, during employment by [the Trust]’. Dr Faith, on the other hand, having not found her in July 2011 to be suffering from more than an adjustment disorder, considered that later events, in particular her dismissal from the Trust, silent telephone calls and additional litigation, played a material role in the alleged exacerbation of the symptoms and the addition of other alleged symptoms, including alleged visual hallucinations.

[75]As to future employability, Dr Broadhead maintained that she would not be able to work to the high managerial level that she did previously, but that some simple, unpressurised employment might be possible following rehabilitation. Dr Faith, relying on her diagnosis, accepted that dismissal from the Trust had undermined her confidence and that her sense of aggrievement might colour her perception of future relationships with employers. She did not think that after such a long break from employment and loss of confidence Tracy Boylin could return immediately to a role of responsibility such as she had held previously. She was more optimistic, however, than Dr Broadhead about her future employment prospects. Legal Analysis

[76]By s.1(1)(a) of the Protection from Harassment Act 1997:

“A person must not pursue a course of conduct which amounts to harassment of another”

. Under s.7:

“(2) References to harassing a person include alarming the person or causing the person distress (3) A course of conduct must involve…conduct on at least two occasions…”

[77]A defendant’s conduct has to pass a threshold of seriousness: “…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”. (Majrowski v St Guy’s and St Thomas’s NHS Trust

[2007] 1 AC 224

, at [30], by Lord Nicholls).

[78]In Veakins v Kier Islington Ltd

[2007] EWCA Civ 1492

at [15] Maurice Kay LJ stated:

“…it seems to me that, since Majowski, courts have been enjoined to consider whether the conduct complained of is ‘oppressive and unacceptable’ as opposed to merely unattractive, unreasonable or regrettable. 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’. ”

Assessment

[79]For the reasons already stated I would have found that Christine Pilgrem’s conduct on 10 November 2010 crossed the line from unattractive/unreasonable/regrettable to oppressive and unacceptable under the statutory requirement. However, again for the reasons already given, I do not find that Christine Pilgrem pursued the necessary ‘course of conduct’ that is a prerequisite for liability under the Act. Previous meetings between Tracy Boylin and Christine Pilgrem were difficult, and I do not doubt that on occasion Christine Pilgrem’s tone was strong, verging on harsh and that she did not always conceal her own annoyance and irritation. Nor do I doubt that Tracy Boylin on occasion felt upset and poorly treated, particularly against the background of her burning sense of grievance and injustice at her situation generally, a situation, that, I should add, had arisen from decisions taken, not by Christine Pilgrem, but by the Trust. However, I have not found on the evidence that on any of those occasions Christine Pilgrem was physically or verbally aggressive towards Tracy Boylin, or treated her in a manner that constituted bullying or harassment, or that crossed the line and became oppressive or unacceptable for the purposes of the Act. Breach of Duty at Common Law

[80]The relevant legal principles were considered by the Court of Appeal in four cases reported as Sutherland v Hatton

[2002] EWCA Civ 76

[2002] 2AERI, and by the House of Lords in one appeal from that case Barber vSomerset County Council

[2004] UKHL 13

[2004] 1CR 457.

[81]The threshold question is whether the particular kind of harm, in casu, injury to mental health attributable to stress at work, to the particular claimant employee, was reasonably foreseeable. Foreseeability depended upon what the employer knew or ought reasonably to have known. An employer was usually entitled to assume that an employee could withstand the normal pressures of the job unless he knew of some particular problem or vulnerability. The nature and the extent of the work done by the employee and any signs from the employee of impending harm to health were relevant to this assessment. The indications of impending harm had to be plain enough for any reasonable employer to appreciate that remedial action was appropriate. If the only reasonable and appropriate step was to dismiss or demote the employee, the employer was not in breach of duty by reason only of the fact that the employer allowed a willing employee to continue in the job.

[82]The claimant employee had to prove that any breach of duty had caused, or materially contributed to, the harm suffered. It was insufficient to show that occupational stress had caused the relevant harm. Assessment

[83]As a general proposition, the Board of the Trust, as of any NHS body, had a continuing entitlement, indeed duty, to promote, in the widest sense, what they saw as the best interests of the Trust. In particular, the Board was entitled, and obliged, to consider from time to time whether the structure of the top management of the Trust, and the managers of the Trust, and the managers holding top positions in the Trust, were such as to achieve optimal effectiveness and efficiency in the conduct of the Trust’s affairs. In this case, after due deliberation, the Board, which in this case was very experienced indeed, considered that a full executive review was appropriate, and, in particular, that the HR function, in the broadest sense, needed critical examination. The Trust was responsible for a substantial work force, comprising executives, lower administration managers and a large medical staff of consultants, doctors and nurses. That responsibility embraced both a ‘transactional’ aspect -dealing day to day with employment issues, including such matters as discipline and grievance- as well as a more strategic remit in terms of, for example, training and development, against a background of unprecedented financial constraints. The Trust also had an important adjunct charity, to which the HR function was relevant. There was concern at Board level that the HR function was not performing as effectively and efficiently, especially as regards the strategic remit, as could reasonably be achieved, and there was a lurking question about the effectiveness of the senior management of the HR function. The Board’s decision to initiate an executive review, including the focus on HR, was, of course, supported by the chief executive and the deputy chief executive of the Trust. This is the kind of decision that is taken everyday by corporate boards, and there was nothing unusual or unacceptable about the business decision in this case.

[84]Furthermore, the Board supported the chief executive’s proposal to appoint an external consultant to carry out the executive review. Again there was nothing unusual or unacceptable about that decision, for it is recognised that an external adviser often brings a much wider experience to bear on the matters under review, and is not likely to be imbued with, or influenced by, the prevailing culture of the organisation under scrutiny. The chief executive in this case proposed an external consultant with a deep and broad experience in HR, which was to be the focus of the second part of the review, but who had also held very senior positions in management of large private sector organisations. She was known to be a tough manager, but that in itself is not objectionable. The Board approved the choice, and I can find nothing exceptional or unacceptable in the decision.

[85]The chief executive in the course of the executive review decided to appoint the external consultant as interim director of HR, that is, to be the top executive in HR. That might ordinarily have been considered somewhat unusual, but there were understandable reasons for that step. The external consultant had identified certain weaknesses in the HR function, and had provisionally reached the view that the HR function in the Trust needed, because of its importance, to be upgraded, involving, in all probability, a director level executive with the requisite knowledge, experience and drive to lead HR in a more dynamic and effective way. If appointed interim director, the external consultant would be able to gain a more penetrating insight into the performance of HR generally, and be better placed to evaluate the current leadership of HR. Because of her background and experience Christine Pilgrem was eminently qualified to fulfil this job.

[86]These decisions had considerable implications for Tracy Boylin. Any executive review is likely to involve some disruption. She would no longer be the top manager in HR. She became number two, having to report to an interim director who was an external consultant.

[87]In my view, Tracy Boylin reacted badly to these developments. She adopted a very negative attitude of grievance, and perceived herself very early on to be an unfortunate and undeserving victim of what she thought was an unfair process. She resented the fact that there was an executive review at all, and she was sorely aggrieved that Christine Pilgrem became interim director of HR, a job to which she believed she was entitled on her past achievements, and that she regarded as properly ‘her own’. In so far as she thought (mistakenly) that Christine Pilgrem was planning to take the top job for herself, her sense of grievance was exacerbated. If she had thought about this matter correctly, she would have seen that Christine Pilgrem would be gone from the Trust after several months. At an early point she took offence at the letter of 23 September 2010 when on rational and mature reflection and possibly consultation, she should have recognised that the letter set out no more than the management changes which her chief executive had already signalled to her. She misrepresented the effect of the letter on her staff who had a legitimate complaint about the manner in which the letter had been distributed and an understandable concern that the executive review might descend into examining their own performance, rather than distress that they might have a new line manager.

[88]Above all, it appears to me that what she most resented was what she saw as a substantial interference in her management autonomy. Whatever might have been the position under Roger Spencer, Christine Pilgrem was plainly a ‘hands on’ executive. She wanted to know precisely how Tracy Boylin was spending her time, and questioned whether she was using her time efficiently, given the work needed to be done within the Trust. However, again I find nothing objectionable as such in that respect. There are different styles of management, but some line managers will wish to know in some detail what those below are doing, and in this case Christine Pilgrem had a specific assignment, within a relatively short period, to report her views to the Board on the effectiveness of the top HR management. Tracy Boylin might not have welcomed, for example, Christine Pilgrem telling her that she should attend only one day of the annual HR directors’ conference, but plainly her line manager took a different view of priorities in what she thought were the best interest of the Trust and, in my judgment, Tracy Boylin’s reaction was again exaggerated.

[89]Tracy Boylin did have the opportunity to work with, rather than against, a very experienced HR executive, and to derive positive benefit from the working relationship. It is true that Christine Pilgrem did candidly tell Tracy Boylin that she did not think she had the skills and qualities needed in a putative HR director of the kind envisaged. However, Caroline Shaw expressly assured Tracy Boylin that if she applied she would be a candidate for any such new role. In any event she was told that her present position was secure until the end of the executive review, and that, even if another person became HR director, there could be room for a supporting position that she might be qualified to perform. However, she appears to have reacted very pessimistically, practically assuming fairly early on that she was most unlikely to become the HR director and even that she would be left with no job at the Trust. It is notable that after the incident of 11 November 2010, Roger Spencer assured her that her present job was secure for the time being and that if a new post of HR director was created she could apply for that post.

[90]Save in one respect, therefore, I do not find any breach of duty on the part of the Trust. I have rejected the claim that Christine Pilgrem bullied or harassed Tracy Boylin, but it is admitted that on 10 November 2010 she did swear at and threaten Tracy Boylin. The Trust has accepted responsibility for Christine Pilgrem’s actions. The misconduct was a significant one. Christine Pilgrem did not on that occasion treat Tracy Boylin with the respect to which she was entitled and which she could properly expect. The threat in particular was wholly improper and was likely to cause, and did cause, real distress and well founded anxiety. It was by then clear to Christine Pilgrem that Tracy Boylin was in earnest about leaving the Trust and was actively seeking employment, at the same or a similar level, in which she could, as a single mother, continue to support herself and her two young daughters in what she reasonably believed was an appropriate manner. The prospect that Christine Pilgrem might seek to interfere with her future plans in the manner threatened was not one to which she should have been exposed.

[91]However, this breach should not be taken out of proportion. It was a momentary lapse on the part of Christine Pilgrem, and within minutes they were working normally again. They both then attended the two hour meeting of the executive team where Tracy Boylin’s demeanour and conduct did not give rise for concern. Over lunch they had a reasonably amicable discussion that focused upon Tracy Boylin’s future, and then in the afternoon resumed the earlier meeting until about 5 pm. There was no repetition of the threat and by the end of the day it must be doubtful whether Tracy Boylin any longer thought that the threat would be implemented.

[92]As soon as Tracy Boylin made her complaint the next day, the Trust acted with exemplary speed and resolve. Roger Spencer, in conjunction with Caroline Shaw, immediately investigated the matter and called upon Christine Pilgrem to account for her alleged misconduct. To her credit she also responded promptly, immediately admitting that she had misbehaved by swearing at Tracy Boylin and by making a threat (albeit in less forceful language than that alleged by Tracy Boylin), and apologised for her improper and unprofessional conduct. Once Roger Spencer and Caroline Shaw saw that Tracy Boylin had been threatened they acted with dispatch and appropriately by terminating, with immediate effect, Christine Pilgrem’s appointment. In turn she put up no resistance to the termination of her appointment and left the Trust forthwith. Roger Spencer informed the work force, and told Tracy Boylin, giving her the assurance that Christine Pilgrem was no longer her line manager and would not thereafter be on site. Roger Spencer then met with Tracy Boylin and gave her the assurances to which I have already referred.

[93]The issue is whether this single breach of duty on 10 November 2010 caused, or materially contributed to, the injury that Tracy Boylin alleges that she has sustained, namely, her current mental illness. In this context it is notable that both Dr Broadhead and Dr Faith did not believe that it was appropriate to link Tracy Boylin’s current condition to the one episode on 10 November 2010. Dr Broadhead attributed the condition to Tracy Boylin’s treatment at the Trust over the whole period September to November 2010, but, as I have explained, Dr Broadhead’s conception of the facts was mistaken in material respects. Dr Faith was sceptical of the severity of Tracy Boylin’s mental condition, and more optimistic as to prognosis. In her view if her condition was as serious as Dr Broadhead believed, it could only be attributable to a combination of life events, in particular, her experience at the Trust, her eventual dismissal and the subsequent litigation.

[94]I too have serious reservations about the severity of Tracy Boylin’s current medical condition, given the factual assumption made by Dr Broadhead and taking into account the reasoned opinion of Dr Faith. However, I am prepared for present purposes to proceed on the basis that her condition is as severe as described by Dr Broadhead. However, I accept Dr Faith’s opinion that such a severe condition would be caused by events as a whole. In my judgment, the real cause of such a condition was Tracy Boylin’s burning sense of grievance at what can be called the management process that was instigated and was pursued from September 2010, namely the executive review, the appointment of Christine Pilgrem as interim HR director and line manager, and the reduction in her own management autonomy, combined with her apprehensions for the outcome of that process, namely a failure to gain the putative new position of HR director, and the real risk that she might not even retain her present job. She focused her sense of grievance on Christine Pilgrem, who had not instigated the aforementioned process, and in effect demonised her. However, as already explained, the Trust was not in breach of duty in carrying out the management process, and, apart from one momentary lapse, Christine Pilgrem did the job that she had been appointed to do, in a professional and acceptable manner. When Tracy Boylin was told that Christine Pilgrem was gone, she was also told that the executive review would continue and a new post of HR director might be created. Her grievance, disappointment and fear were, therefore, not abated. The incident on 10 November 2010, seen in the context that I have described, did not cause, or materially contribute, to her present mental condition. It simply made no difference in the light of the bigger picture; it was the management process itself, provoking a sense of grievance and fear, that caused the injury.

[95]I also accept Dr Faith’s evidence that subsequent events, such as her dismissal from the Trust and the protracted litigation on three fronts (this claim, the Tribunal application and the action brought by her previous solicitors) are likely to have contributed substantially to her present mental condition.

[96]For the avoidance of doubt I should also add that, even if I had concluded that Christine Pilgrem’s conduct on 10 November 2010 had caused, or materially contributed, to Tracy Boylin’s medical condition, I would not have found that such a result was reasonably foreseeable. The conduct was a significant breach of duty, but in the overall context was an isolated incident of relatively short duration which could not reasonably be expected to cause, or materially contribute to, a significant psychiatric illness. Conclusion

[97]For these reasons I dismiss this claim.