Good morning and welcome back to your weekly case law update. Last week was our monthly newsletter which had features on the Brexit Whistleblower, the Taylor Report and tribunal fees. Meanwhile, our previous case law update was an employment status case concerning Addison Lee.
Before beginning this week’s update, thank you to everyone who has bought Phil’s book. With Christmas being just around the corner, this book would make the perfect gift for any office (or if you get anyone in HR for secret Santa????)! The 10% discount code and Amazon review offer from our previous update still apply.
This week’s case is a personal injury case about harassment and vicarious liability. We have previously covered the tragic case of Bellman v Northampton Recruitment Ltd when dealing with employer’s vicarious liability for a physical injury.
This case concerns psychiatric injury. PJH Law is not a specialist in personal injury but the basics are as follows:
For any injury clam to succeed, the basic premise is that a duty of care must exist between the parties. That duty is then breached, the breach was negligent and caused an injury which was reasonably foreseeable as a result of the breach.
For example, a supermarket owes a duty of care to customers and visitors to keep its store safe. If a spillage occurs at the store and is not cleaned up this creates a slipping hazard – a breach of the duty. If the spillage was not cleaned up because staff had not been trained to do it/did not check the aisles etc. etc. then the breach will be negligent.
A person who then slips on the spillage and subsequently fractures their wrist will have been injured as a result of the breach. That injury would have been reasonably foreseeable because it is common for slip injuries to involve arm/wrist damage.
Like our previous employer’s liability case, this case has a fairly tragic set of facts. Whilst these facts make for long reading, we hope readers will find it eye opening.
The questions this week are:
Does a poorly handled grievance amount to a breach of duty of care
Is a chronic depressive illness a foreseeable injury following an unmerited sexual harassment claim?
Mr Piepenbrock, the Claimant, was an Associate Dean and Lecturer at London School of Economics, the Defendant. His first academic position was at MIT (Massachusetts Institute of Technology). During his time there, the Claimant’s doctorate thesis was plagiarised by a senior colleague.
As a result of this the Claimant suffered a depressive episode and was unable to work. His condition did not improve until his colleague made an admission and apologised for plagiarism. At this point the Claimant secured employment with the Defendant (LSE). During his interview, he mentioned the plagiarism incident and subsequent depression but this was deemed unimportant by the Defendant.
As part of his role the Claimant had to supervise masters’ dissertations for the Defendant’s students. One of these students was Ms D. Ms D was initially very complimentary about the Claimant’s work but then became more flirtatious and was demanding lots of the Claimant’s time.
The Claimant believed Ms D’s behaviour might be inappropriate and decided that he should not be her supervisor. Upon telling Ms D this she broke down in tears and confided in the Claimant about issues relating to her abusive father. Upon consultation with his wife, the Claimant agreed to carry on as her supervisor.
The Claimant was asked to start teaching on more courses and also do more lecturing abroad. As a result of this increased workload the Claimant was granted an assistant. Due to the nature of the course content, the Claimant wanted an assistant who had previous experience of the course. One of the applicants was Ms D, who had been awarded a distinction in the course.
Ms D was employed as the Claimant’s assistant, during which time she began to flirt with the Claimant. This included wearing revealing clothing, flashing her underwear when sat down and insisting on crawling on all fours to plug in chargers.
The Claimant was then meant to go on a lecturing tour of the US with Ms D also attending. The Claimant was reluctant about Ms D attending but relented when he found out he was to stay in a hotel and Ms D, who was an American national, was staying with her mother. Just prior to the trip, Ms D said she could not stay with her mother and was booked to stay in a different hotel room to the Claimant.
Prior to attending a lecture, the Claimant messaged Ms D and asked if she was ready to leave. She replied yes and the Claimant went to her room to meet her and found her in a state of partial undress. The Clamant left the room and later met with Ms D to state they could no longer work together.
The Claimant then received a call from Ms D’s mother asking why the Claimant had ended her relationship with her. Ms D later became hysterical and said she would ruin the Claimant’s life and career. The Claimant and a colleague tried to calm Ms D down but she called hotel security saying that they were trapping her in their room.
Upon his return from the US, the Claimant reported the incident to the Defendant. The Claimant also noticed staff and students were giving him the cold shoulder, including no students wanting to get in a lift with him alone. The Claimant asked the Defendant about this and was told there had been an informal allegation but they would not detail this further.
Subsequently, the Defendant then informed the Claimant that Ms D had made a formal complaint of sexual harassment against the Claimant, Ms D had also informed current and former students, staff of the Defendant and even the Economist of the alleged incident. The Claimant, who was due to teach many of Ms D’s fellow students, was signed off work with stress.
Ms D’s grievance was not upheld but in this time the Claimant had been diagnosed with a severe depressive disorder. Whilst off work sick, the Claimant missed out on an opportunity to be promoted to a permanent position with the Defendant. The Claimant’s depression had got to a stage where for 5 years after the event, he rarely got of bed and when he did spent his waking hours rueing the events of Ms D’s allegations and the Defendant’s handling of the matter.
The Claimant brought a negligence case against the Defendant citing that they were vicariously liable for the harassing actions of Ms D and had failed to handle the investigation of the grievance correctly. This amounted to a breach of duty of care which resulted in the Claimant’s injury.
The High Court held that the complaint of Ms D – being trapped in the hotel room – was not disputed insofar that she might have found it distressing to be confronted by two male colleagues. The Defendant had been correct to take this complaint at face value and the harassment claim did not succeed.
Furthermore, whilst there had been a breach of duty of care due to the handling of the allegations, the exacerbation of the Claimant’s severe depressive condition was not reasonably foreseeable as a result of this. Therefore, the negligence claim for psychiatric injury did not succeed either.
The takeaway point:
In this case a poorly handled grievance was a breach of the duty of care, however, the injury that was inflicted as a result of this was not reasonably foreseeable, therefore the Defendant was not liable. However, in other cases the injury might be foreseeable and thus this case serves as a reminder on how to approach the investigation and procedure of sexual misconduct allegations.
This case also raised the point of having the grievance and harassment procedure as part of the contract of employment. If it is, as it was in this case, a breach of contract claim can also be brought.
Furthermore, this case also brings back and hits home about the balance between the rights of the harassment accuser and the accused. In many cases it will have taken the accuser great courage to come forward with such an allegation, one condition of such an allegation is that the accuser will understandably want it handled with discretion.
However, the accused will also want to know the name of the accuser and details of the alleged incident, so they can defend themselves. In this case, the accusation was brought possibly vexatiously to get back at the Claimant for spurning advances.
Due to the investigation being poorly handled the Claimant suffered a severe mental health injury that has impacted on his lifelong career prospects and wellbeing. As with the case of Carl Sargant, the rights of each party are difficult to balance but a failure to do so can result in tragic outcomes.
Finally, cognitive bias can also be a factor. Whilst incidents of sexual harassment are usually a result of unwarranted male conduct, it can be initiated by a female. In this case, the conduct of Ms D went unchecked and unreported, possibly due to the gender of the harasser. Whilst it might be rare, harassment can be initiated by a woman and these incidents should be treated the same as any other kind of harassment.