England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM LEEDS COUNTY COURT
(His Honour Judge Hawkesworth QC

		The Royal Courts of Justice The Strand London Tuesday 18 June 2002

Tuesday 18 June 2002

1. LORD JUSTICE THORPE: This is a sad case in which Mr Edwards' claim for compensation against his previous employers, Hanson School, came for trial before His Honour Judge Hawkesworth QC sitting in the county court at Leeds on 15 October 2001. In briefest summary, he found for the defendants, save in relation to their conduct of a disciplinary hearing on 21 March 1997 which, in the judge's opinion, was unwarranted and which led to the claimant's premature psychiatric collapse. I say "premature" because the agreed medical evidence was that he would in any event have collapsed psychiatrically in the autumn of that year, had he been denied the opportunity to teach A-level students, a denial that was inevitable and justified in the judge's opinion. Accordingly, the consequence of the defendant's breach in having subjected the claimant to a disciplinary hearing in the spring was simply to accelerate, by a period of approximately six months, what was an inevitable breakdown. For that the judge awarded general damages of £2,000.
2. Mr Rigby, who represented the claimant in the court below, sought the judge's permission to appeal. He was refused. He accordingly applied to this court and on 1 May Pill LJ directed an oral hearing on notice and a skeleton from the respondents. In performance of that, a skeleton was duly received from the respondents at the end of last week and we are grateful to them for it.
3. Mr Rigby in his oral submissions has criticised the judge in a number of respects. He said that the judge wrongly stated the extent of the respondent's duty to the claimant during the period ending September 1996. Had the judge properly found the duty, he would in consequence have found breach. The same complaint is made in respect of the later period, ending 21 March. In relation to damages Mr Rigby advances a number of submissions, particularly that the judge defined the respondents' duty too closely. He failed to acknowledge the duty of an employer to support the career development of employees and particularly the judge failed to acknowledge the respondents' duty to take steps to foster, plan and support the return to work of an employee absent through sickness.
4. In order to weigh these submissions in support of the application for permission, I think it is necessary to look with some care at what is a conspicuously clear and careful judgment. First, it must be noticed that there were psychiatrists instructed on each side, Dr Sylvester for the defendants and Dr Rix for the claimant, and those two psychiatrists produced a memorandum of agreement dated July 2001. Amongst the matters agreed between these experts was an assessment of the claimant's personality and temperament, to the effect that he was not a person of customary phlegm and fortitude and, significantly, that there was evidence of paranoid personality features.
5. This assessment no doubt reflected the history. The claimant had commenced his career with the respondents in 1990 and at the end of his first year of employment he had clocked up 40 days of absence. This pattern of absences was replicated: 50 days of absence in the following year, 22 days in the year after that, 20 days in the following years and 36 days in the year after that. The level of absences, none of which was in any way pretended or lacking in genuine foundation, obviously had repercussions in the staffroom and had repercussions with the senior managers, particularly Mr North, who was in charge of the department within which the claimant taught, and Mr Chaplin, who was the headmaster. The judge accepted the evidence of the senior staff. He described Mr North as a highly experienced teacher, who gave his evidence in a fair and balanced way concerning the teaching responsibilities given to the claimant.
6. Continuing the history, in the year 1994/95 the claimant, having missed a few days in September and October, was then off work from 24 November-2 May, unfortunately, as a result of a torn cartilage rather than any depressive illness. But the consequence was that he was absent for almost 50 per cent of the available teaching days. This produced an inevitable conflict between his ambition to be given the enlarged responsibility to teach the A-level classes and the concern of senior staff that pupils at a crucial stage of their education would be prejudiced by the risk of absence from the regular teacher. Throughout this period there were occasional enquiries as to whether the pressure and tension of the job was the root cause of the claimant's difficulties. He always vehemently rejected that possibility, saying that he was fit and healthy and the only problem that he suffered was the sense of discrimination at being confined to teaching lower ability pupils.
7. The judge was quite plain in dealing with the period ending September 1996. He accepted the evidence of Mr Chaplin and Mr North that the only discrimination which had in any sense operated against the claimant was the consequence of their shared belief that his past absence record made him unsuitable for A-level and higher ability groups. The judge concluded that a decision to timetable his teaching in 1996/97 could not be said to amount to unreasonable conduct in the employment context. He said it was within the right and duty of the senior staff to balance all the factors, including the ability of all the staff at their disposal, their aptitude for teaching particular groups within the school and their comparative absence records. The judge concluded that in so far as the claimant's case relies upon the conduct of the defendants prior to September 1996, it could not in his judgment succeed. He continued that the school was plainly entitled to rely upon the claimant's responses to proper enquiries that had been made in relation to stress or difficulty caused at work.
8. I can see no possible grounds for criticism. The judge reached a balanced conclusion on the evidence before him, accepting, as he was entitled to do, the evidence of the senior staff. In my judgment, Mr Rigby's submissions in relation to period 1 fail.
9. In relation to period 2, the story is a little more complex. The claimant undoubtedly suffered a moderately severe depressive illness through the autumn of 1996, for which he was treated by a consultant psychiatrist to whom his GP referred him. He was covered by sick notes for debility and depression and was off work throughout the autumn, winter and early spring period. The reaction of the respondents was to engage the help of a personnel officer, Mr Dyson, who was actually employed by the York City Council but contracted to provide personnel services to this school. Mr Dyson was an experienced personnel officer. He ensured that there should be a proper investigation of the claimant's fitness to return to work and that that assessment should be made by an occupational health physician, Dr Woodrow.
10. By the spring of 1997, the claimant was clearly recovering and there came a point at which he thought he would return to work after the half-term break, but then was shocked to find that he was not to be permitted to return without a medical certificate of fitness. There was then a certain amount of muddled communication between Mr Dyson and himself and the school. The judge in relation to that period accepted Mr Dyson's evidence and found that there had been at this important time confusion and misunderstanding between the principal players, which only served to compound the claimant's feelings of persecution and discrimination. That was, of course, thoroughly unfortunate, but in relation to this period the judge specifically found on the evidence that such communication as had taken place between senior management and the claimant was not unreasonable and did not amount to breach of duty, given the view that the headmaster had formed that repeated enquiry of the claimant would only put him under stress. Further, the judge found that the duty of the respondents at this stage did not extend further than arranging proper medical investigation as to the claimant's fitness to return to work.
11. Mr Rigby has, of course, criticised that and he has referred us to a subsequent decision of this court in a number of cases conjoined for a single hearing, the lead case being Hatton v Sutherland [2002] EWCA Civ 76. On the facts of this case it seems to me that the judge was perfectly entitled to draw the duty as he did. This was a difficult management situation for senior staff. They were coping with a highly vulnerable employee, they had a considerable history of dealings extending over something approaching a decade, and in all the circumstances the judge was, on the evidence, entitled to reach the conclusion which he did.
12. The judge at least found plainly for the claimant in regard to the respondents' act in summoning a disciplinary meeting almost immediately upon the claimant's return to school in mid-March. There is no doubt that that was done in good faith. It seems that it was largely done on the advice of Mr Dyson, who was of the professional opinion that prolonged absences from work could legitimately be made the subject of a disciplinary inquiry. The judge rejected that. He said that this approach to the claimant's illness was wholly inappropriate and that it was reasonably foreseeable that it would cause him further stress and illness. So to that extent he found for the claimant on an important aspect. He found that the holding of the hearing and the issue of the formal warning in the context of a return to work following a genuine stress-related illness did amount to a breach of duty, both of the defendants' duty of care and of the co-extensive term in the contract of employment. The procedure the judge held to be misconceived and unsympathetic, and foreseeably likely to cause further stress. That finding is, of course, not criticised by Mr Rigby, but it does seem to me to demonstrate that the judge adopted a fair and balanced approach to his duty to draw the line between the respective cases argued before him.
13. Nor do I think that any criticism can be mounted of the extent to which the judge held that the breach sounded in damages. In that sphere he was clearly guided by the agreed memorandum of the experts. The experts in their memorandum had noted that beyond September 1996 it was probable that if the claimant could have returned to work and acquired a realistic appreciation of what he needed to do to achieve his ambition of A-level teaching, having done so, been treated fairly and reasonably by the defendants, he might, with psychotherapeutic support, have made a full and sustained recovery from his depressive condition and carried on teaching. That paragraph, of course, is strongly relied on by Mr Rigby. But it does not stand in isolation: the following paragraph is clear. The experts continued:

"However, assuming that at the end of the academic year 1996/97 he was told that his attendance record was still not satisfactory enough for him to be considered for A-level teaching, it is probable that, having regard to the sense of injustice he would have felt over the depressive episode earlier in the year, and the sense that yet again he was being unfairly denied A-level teaching, he would have reacted in the Summer/Autumn of 1997 in the same way that he did in the Summer/Autumn of 1996. The likelihood that he would have taken this on the chin and completed the academic year 1997/98 without any significant absence, would appear to be low. This is because he would have had a persisting sense of injustice and he would have been in a vulnerable state in terms of being at risk of experiencing an exacerbation or relapse of his depression in response to bad news."

14. So the judge said:

"While on my finding, fair and proper treatment by the defendants would not have involved a disciplinary hearing following his return to work in 1997, the claimant's deep-seated and persisting sense of justice would inevitably have caused him to react badly, both to any failure to give him higher ability classes to teach and, indeed, to any legitimate attempt by the school to address the issue of his absence from work, whether due to stress-related illness or other causes. Although, therefore, I accept that the disciplinary procedure and hearing did materially contribute to the relapse of his illness which led to the claimant being given a certificate of incapacity to work on the 9th April 1997, to quote directly from the joint memorandum of the experts, I am not persuaded that this relapse was any more than a temporary exacerbation of a condition which was bound to resurface sooner or later had he remained at work. In the event, I consider it probable that the claimant would have continued to react with paranoid sensitivity towards [the headmaster] and the senior teaching staff had he remained at work, and any perceived criticisms of his teaching abilities or absences from work would have caused a recurrence of his depressive illness and therefore his dismissal on the grounds of incapacity in any event."

15. On that basis the judge made the assessment that the disciplinary proceedings had made a material contribution to his illness until September 1997, a period of six months, and thereafter his illness was a continuance of the depressive condition which had begun in September 1996.
16. I can see no basis for criticising that judicial conclusion. It is plainly founded on the evidence, both the evidence contained in the agreed memorandum of the experts and of the view that the judge formed of the claimant's evidence. For all those reasons, I see no force in Mr Rigby's second or third grounds, ably argued this morning, and I would dismiss this application for permission.
17. MR JUSTICE WALL: I agree. My Lord has covered the ground fully and I have nothing to add.
ORDER: Application refused with costs to be assessed pursuant to section 11(1) of the Access to Justice Act 1998, the claimant's liability being certified as nil, the claimant's costs to receive a detailed assessment under the public funding regulations. (Order not part of approved judgment)