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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Foumeny v University of Leeds [2003] EWCA Civ 557 (16 April 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/557.html Cite as: [2003] EWCA Civ 557

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY (HHJ GRENFELL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 April 2003

Lord Justice Potter:

1. In this case the applicant seeks leave to appeal from the decision of His Honour Judge Grenfell sitting as a High Court Judge at Leeds District Registry given on 8 July 2002.
2. Whatever criticisms may be made of the judge's findings, the judgment is in form a careful and well structured one, running to 240 paragraphs, closely typed on 30 pages. It relates to what can only be described as a disastrous outcome for the applicant who up to the end of 1996 and the beginning of 1997 when the origins of the dispute before the judge first surfaced, had enjoyed a distinguished and successful career in the Chemical Engineering Department of Leeds University, such that at the end of 1996, the applicant was made head of that department in place of the professor who had just retired. Within weeks, the applicant had resigned from the position of head of the department, while continuing to work within it and, by 24 July 1997, was off work effectively with a nervous breakdown, more accurately described as a psychiatric disorder connected with stress at work. It arose in this way.
3. Simultaneously with the applicant's appointment as head of department, the Vice-Chancellor was proposing to implement a major restructuring programme of the academic departments within the university which was to involve the Chemical Engineering Department losing its autonomy and, for purposes of increased efficiency, collaboration and interdisciplinary research, being brought together with the parallel departments of Fuel Energy, Materials and Mining and Mineral Engineering within the overall umbrella of a proposed Unitary School of Process Environmental and Materials Engineering.
4. The applicant was opposed to the idea that his department would lose its autonomy and, within two days of his appointment, had written to the Vice-Chancellor indicating that if the proposals for the Unitary School were implemented, he would be reluctant to continue as head of department.
5. On the day after the letter was written Professor Watson, the Pro-Vice-Chancellor with link responsibility for various departments including Chemical Engineering since 1994, and who had been on the panel which appointed the applicant Head-Elect of the department organised a meeting of the other three Heads of Department proposed to be part of the Unitary School i.e. without the applicant present, where it was agreed that he should start as head of his department with immediate effect and a serious effort would be made to bring him round to the idea of the Unitary School.
6. However, despite Professor Watson's general desire (as the judge held) to bring the applicant round, opinions not only divided but hardened. Four members of the applicant's staff met Professor Watson and Professor Hill, another Pro-Vice-Chancellor, expressing lack of support for the applicant's position and meetings between Professor Watson and the applicant became acrimonious.
7. By 15 January, Professor Watson's stance at a meeting with the applicant and the Chemical Engineering staff was that the department would either enter the Unitary School or be closed down. On 16 January the applicant's staff voted for merger.
8. There were further meetings, including one on 17 January, when, according to the applicant and supported by a note made by him at the time, Professor Watson threatened that he would isolate the applicant within the university. Professor Watson's version was to concede that he might have said that the applicant "could" become isolated but denied indicating his intention to achieve that end. It was clear, however, that at the meeting, as Professor Watson largely admitted, he went 'over the top' in bringing up matters of alleged complaint against the applicant which were never repeated or proceeded with.
9. At any rate, on 20 or 22 January, the applicant wrote offering his resignation as head of department which was accepted and a Professor Dowd was appointed in his stead. Matters swiftly became worse. However, before I turn to them, it is important to observe as follows.
10. In relation to the matters I have so far recounted, the judge made two important findings. First, that, whereas the applicant was convinced from the outset that Professor Watson, who knew of the applicant's attitude to the loss of autonomy, intended to isolate and harass him, Professor Watson in fact wished to bring the applicant round to the idea of the Unitary School and for him to remain as head of department within it. Second, that the applicant never in fact expected his resignation to be accepted and, ultimately, that his mental health problems which thereafter began to surface had their origins in the shock he felt at that result. Those problems were augmented and exacerbated by the strains which followed in a deteriorating situation following Professor Dowd's appointment.
11. There was undoubtedly a head-on collision of ideas and temperaments as between the applicant and Professor Dowd. The latter took a number of steps which in the applicant's eyes were deliberately aimed at downgrading his role and eroding his authority and his relations with his students. Professor Dowd on the other hand regarded the views and actions of the applicant as an erosion of his (Professor Dowd's) authority, contrary to good administration and ultimately necessitating disciplinary proceedings in relation to alleged acts of maladministration, which the applicant said were gratuitous and unjustified.
12. Following Professor Dowd's appointment, the applicant's case as set out in paragraph 11 of his Amended Particulars of Claim and pursued before the judge was that Professors Watson and Dowd had pursued a common policy of undermining and isolating, and thereby harassing, the claimant. In particular, Professor Dowd instructed him to take over the teaching of the Reaction Engineering Course to final year students two weeks into the second semester. The applicant complained to no avail that he had never taught the subject before and it was not his field and that other staff were qualified and more appropriate to teach it. Consequently he had to work late every night in order to prepare his lecture notes. In this respect I pause to note that the defendants' case was that the department was in a crisis at the time; there had been complaints about the quality of the course and, in circumstances where the applicant was no longer subject to the extra hours required of a head of department, the request was reasonable. It was said that the applicant made no complaint about working long hours.
13. On 10 February 1997, at a meeting with the Vice-Chancellor, the applicant's case was that he mentioned Professor Watson's stated intention to isolate the claimant and that the situation was affecting his health. At the end of that meeting the Vice-Chancellor promised to speak to Professor Watson about the applicant's concerns. However, the applicant heard nothing further. Later, in a telephone conversation, the applicant reminded the Vice-Chancellor of his complaints and that his health was deteriorating as a result of the actions of Professors Watson and Dowd, and complained of having to teach Reaction Engineering and the extra work that that caused him. The Vice-Chancellor dealt with the matter by saying that if he criticised their management, no-one would be willing to carry out management duties allocated by the Vice-Chancellor.
14. On 26 February 1997, Professor Dowd removed the applicant from the post of Director of Post-Graduate Studies, which the applicant had held for some 8 years and gave his position to a junior member of staff. In March 1997 Professor Dowd informed the applicant that final year students had complained about the quality of his teaching. However, when the applicant asked for details of the complaints, no evidence or particulars were provided and the matter was never mentioned again. In March 1997 the applicant was removed from his position as chairman to the department IT committee and in May from his post as director of external courses for continuing professional education. Professor Dowd also accused the applicant of having purchased certain high-performance computers without authorisation. When the applicant denied it, Professor Dowd set about trying to find evidence to that effect.
15. On 8 May 1997 Professor Watson summoned the claimant to a meeting without prior warning of its purpose at which he in effect conducted an informal disciplinary hearing into the allegation of Professor Dowd that the applicant was refusing to co-operate with him, with the threat that this could lead to formal disciplinary action being taken.
16. In early June 1997 without consultation with the applicant, Professor Dowd, acting as head of Chemical Engineering, instructed the university finance division that his (Professor Dowd's) signature should be recognised as the sole authorised signature for expenditure from the department's internal account containing the funds generated by the applicant's research and consultancy activities in respect of which the applicant had previously been the sole authorised signature. It was said by the applicant that this was to compel the applicant to seek authorisation from Professor Dowd at a time when the two were at loggerheads over matters in which the applicant had previously had autonomy.
17. In July 1997 Professor Dowd attempted to implement a disciplinary procedure against the applicant arising from his criticisms of the applicant's conduct repeatedly pressing for a date for such a hearing. The applicant said that by this time he had himself made a number of requests to the Vice-Chancellor for a grievance procedure to be implemented in respect of his own treatment by Professors Dowd and Watson; however these requests were avoided or ignored by the Vice-Chancellor.
18. At that point the applicant became medically unfit for work, being diagnosed as suffering from psychiatric injury related to stress at work. It was the applicant's case that such injury was foreseeable as a result of the "deliberately oppressive tactics of the Defendant's management which were intended to rid the Chemical Engineering Department of the Claimant", those matters constituting a breach of duty in negligence and in contract on the part of the defendants.
19. There was, as I have mentioned, a considerable background to these allegations and the defendants, by their amended defence, pleaded in detail to them largely by way of confession and avoidance. In principle they sought to justify their conduct by blaming fault and/or non-co-operation on the part of the applicant in the reorganisation of the department, the individual steps taken by Professors Dowd and Watson being justified by such reorganisation and non-co-operation. In any event they denied that, in acting as they did, they were acting either intentionally to cause injury to the claimant's health or that injury to the claimant's health was at any time a foreseeable consequence of the defendants' dealings with him.
20. The judge dealt carefully and at length with all the relevant evidence and arguments which had been advanced before him. He plainly and correctly made the point, and reminded himself, that he was not dealing with an unfair or wrongful dismissal case in which the actions of the employers, if shown to be unfair or unreasonable in the employment context would afford good grounds for relief, but with an action in negligence for stress-related injury in which the position in law is that stated by Hale LJ in Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1 in which she stated at paragraph 43(2):

"The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

(3) Foreseeability depends upon what the employer knows (or reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but it may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (para 29 …)

(5) Factors likely to be relevant in answering the threshold question include:

(a) the nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job …Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable job? …

(b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? …

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. …

(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (para 31) …

(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (para 32) …

(10) An employer can only reasonably be expected to take steps which are likely to do some good …

(13) In all cases … it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (para 33).

(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (para 35)."

The judge said he would apply those principles once he had examined the facts.

21. The judge then went through all the matters of complaint carefully and at length dealing to an extent with who in his view bore the real blame for the difficulties which arose and led ultimately to disciplinary proceedings against the applicant. He came to a number of conclusions adverse to the applicant's case so far as the actions and motivations in particular of Professors Watson and Dowd were concerned. Whilst finding that most of the matters of which the applicant complained had occurred, the judge found that they were not motivated by an intention deliberately to erode or harass him but were the product of the overall position of opposition between the parties and the administration and disciplinary problems to which that gave rise.
22. Besides the main protagonists, the judge heard and placed in context in his judgment evidence from the applicant's wife and various of the defendants' witnesses as to the signs of stress shown by the claimant with a view to establishing whether, and if so how far, the defendants should have (a) foreseen and (b) taken steps to avoid injury to the applicant's health in the form of the psychiatric illness rather than simply being aware that he was suffering from occupational stress. In this respect there was also evidence from the applicant's general practitioner and friend Dr Chitsabesan, who had a qualification in psychiatry, and whom he saw frequently, though not for reasons of his own health. Finally, there was expert evidence from two psychiatrists as to the likely origins and nature of the illness which caused the applicant to leave work in July, with particular regard to the stress factors operating on him. In the upshot the judge stated:

"Prior to January 1997 no injury to the mental health of the applicant was foreseeable, he being a person of robust personality and mental health who had been capable for some years of dealing with an overload of teaching and administration work. When he was required to teach the whole of the Reaction Engineering Course in 1997 this was well within his capabilities. Other pressures had however begun to be applicable at that time. Neither of Professors Watson or Dowd set out with any intention to be rid of the applicant in the early months of 1997, but rather hoped to win him round. Professor Watson did warn the applicant that by adopting the stance he did he could become isolated within the university and this was misinterpreted by the applicant as a threat deliberately to isolate him. There was no such intention. It was to bring him round to the department being led by him within at the Unitary School. "

23. The judge accepted the applicant's evidence that it was not his opposition to the department being in the Unitary School which caused him the problems. As the judge observed it was the circumstances which flowed from his opposition once it became intractable in January which caused the problems.
24. The judge found that the applicant began to suffer abnormal levels of stress from about mid-January as he realised the inevitability of the department going into the Unitary School and he began to perceive that senior colleagues were turning against him. His emotional response coloured his own judgment of which his resignation (which the judge found he did not intend should be accepted) was a clear example. The judge found that from January onwards a number of stresses began to accumulate which in about June developed into symptoms of the psychiatric illness which caused the applicant to cease work in July. As from January, there were signs of altered behaviour in the applicant in that he became aggressive and volatile and this caused Professor Watson on his own admission to handle him inappropriately. However, in the early months of January to April no-one could foresee that he was liable to suffer psychiatric illness. All the persons concerned in the tensions of the situation at that time were suffering stress. During that period the applicant's wife noticed the first signs of abnormal stress in the applicant, expressing concerns about his state of health towards the end of April. However she did not recognise such signs as she observed at the time as impending psychiatric illness or a breakdown. The judge expressed himself satisfied that similarly no-one within the university recognised the changed behaviour of the applicant as a sign of impending mental illness as opposed to mere stress.
25. The judge went on to hold that, on the basis of references in two documents in May, Professors Watson and Dowd recognised abnormal levels of stress in the applicant and that from that stage it was reasonably foreseeable to the Vice-Chancellor and Professors Watson and Hill that he was at risk of what in lay terms was a 'nervous breakdown' i.e. some kind of mental illness.
26. The judge further found, however, that at that stage, although Dr Chitsabesan recognised signs of impending psychiatric illness he had not himself thought it sufficiently serious to note them or take any positive action and that the applicant probably threw his senior colleagues off the scent by continuing to compose rational and well argued letters of which there were a number of examples. The judge said:

"In terms of the key players' perception of signs of mental illness, such letters were bound to give the impression of someone who, although clearly suffering from the effects of stress, retained his mental robustness. In addition, I bear in mind, that in his dealings with the Vice-Chancellor, at all times Professor Foumeny behaved with propriety."

27. The judge then went on to consider what alternative courses of action the university could have taken to avert the risk of psychiatric illness which by May they were in a position to foresee. He said that the first step would have been to reverse the decision to take the Chemical Engineering Department into the Unitary School and the second to restore the applicant to his position as head of that department; but neither course was realistic by that stage (paras 227 – 229 of the judgment).
28. The judge also held that it was not appropriate for Professor Dowd to drop his pursuit of the disciplinary investigation. The reason for Professor Dowd and Professor Watson pursuing the applicant to a meeting in that respect was that, in addition to Professor Dowd's genuine concern at the undermining of his own authority in the proceeding months, he held a reasonable suspicion that the claimant had been guilty of misconduct such as to warrant disciplinary investigation "as evidenced by the findings of the Conway Tribunal later". The judge also rejected the allegation of breach of duty on the part of the Vice-Chancellor in failing to pursue a grievance procedure against Professors Watson and Dowd, finding that "the request for such procedure was merely an attempt to pre-empt the disciplinary investigation". He found that, the Vice-Chancellor had no alternative but to allow the disciplinary investigation to proceed.
29. He concluded that, at best, the university should have advised the applicant to see his own doctor with a view to a break or rest from work. However, in that respect he found that the medical evidence was all one way, in that, Dr Chitsabesan had himself given evidence of observing developing stress in the applicant over the period April to July, but thought that the best way of dealing with it was conservatively and without medication and had not thought intervention necessary until 24 July when he advised him to stop working. On that basis, the judge found that it followed that the university could not have been expected to do more than the applicant's own doctor thought necessary. In those circumstances the judge held that the claim could not succeed.
30. I have carefully considered the lengthy written submissions of Professor Foumeny, who has recently had the advantage of help from counsel in compiling his skeleton argument. He also addressed me at length with courtesy and force and I was enabled to clarify a number of matters with him. I propose to deal with matters in the order set out in his "Summary of the Grounds for Permission to Appeal" in which he complains of the following errors made by the trial judge which he says determined the adverse outcome of the hearing.
31. His first complaint is that Judge Grenfell went out of his way to state that:

"At no stage was there the slightest evidence of racial discrimination against Professor Foumeny".

32. In my view, he is right to complain of that finding by the judge, in that no suggestion of race discrimination had been raised before him by the applicant for the very good reason that it was and is an issue pending before a forthcoming Employment Tribunal. The only mention of race discrimination in the case of either party was a collateral allegation in paragraph 38 of the defence that the applicant had "elsewhere alleged … discrimination borne of racism … this too is denied." That appears to me to have been an extraneous reason, only raised to be denied and presumably imported for prejudicial purposes. I am told and have no reason to doubt, that the judge was informed of the pending proceedings before the Employment Tribunal and that it was agreed between the parties that the issue of racism was not before the judge. If that is true, and if it is also true (as the applicant informed me) that the defendants have seized upon that finding and publicized it upon their website, it is a truly deplorable situation. If in those circumstances the defendants were to seek to rely upon the finding before the Employment Tribunal it could and should in no way be regarded as amounting to an adjudication on the question of race discrimination. Having said that, however, the finding does not in my view go to or undermine the judge's findings on the issues which were before him.
33. The same is true of the second area complained of by the applicant, namely that the judge wrongly stated in the course of his judgment that a financial report dated 21 July 1997 by KPMG ultimately led to a number of charges being brought against the applicant. The report concerned was from Mr Dockray a partner in KPMG to the Head of Financing Accounting, which stated at that time that there was no evidence of financial irregularities. The charges 'ultimately' brought against the applicant were heard in February 1999 ("the Conway Tribunal") and were based on a subsequent and different KPMG investigation.
34. Third, complaint is made that the judge described Miss Squires, the applicant's secretary, as 'entirely loyal' to him and Professor Dombrowski, a colleague, as his 'faithful friend', thereby downgrading their evidence on the applicant's behalf and demonstrating bias on the part of the judge. Having studied the context in which those remarks were made, I do not accept that conclusion.
35. The fourth complaint, which the applicant put as that of greatest importance, is the judge's finding in respect of Professor Watson's statements to him in January that the applicant "misinterpreted this (isolation threat) as a threat to isolate him". The applicant submits that, he having noted it as a direct threat and Professor Watson having himself admitted that he went 'over the top' at the time, the judge should have accepted that the threat was made in the terms alleged and that, in the light of that threat, the judge should have viewed all Professor Watson's subsequent actions as an implementation of it. Coupled with this is the fifth complaint, that the judge erred in concluding that the applicant "in retrospect sees only sinister inferences". In relation to both matters and, bearing in mind the way the applicant was treated, I can see force in the applicant's submissions. However, it was the judge who heard the evidence and listened carefully to the entire proceedings and it was well within the ambit of his judicial judgment to come to the conclusions which he did. There can be no realistic prospect of appeal on that ground.
36. Sixth, there is a complaint, without substance, that the judge inaccurately observed of the applicant that "no-one has sought to challenge his high reputation" It is clear that the judge was referring generally to his reputation in the field of chemical engineering and not to the issues of fact which were the immediate subject of the claim of harassment.
37. Seventh, there is a complaint that the judge concluded that "the decision had already been reached that [by 7 January] the Department was going into the Unitary School". If that was wrong, which is far from clear, the error was immaterial to the overall history and conclusions of the judge. There is a further complaint about the judge's view of a letter written by the applicant on 27 February (para 82 of the judgment) which it was plainly open to the judge to take.
38. The eighth complaint alleges error on the part of the judge in concluding (a) that the teaching of Reaction Engineering was well within the applicant's capabilities, (b) that his request for a grievance procedure to be instituted was an attempt to pre-empt the disciplinary investigation; (c) that the intention of Professors Watson and Dowd were simply to follow university procedures (d) that he was satisfied that the applicant's abnormal levels of stress had their origin first in his intractable opposition to the involvement of his department within the Unitary School and second to his loss of the headship of the department when his resignation was accepted. Again, however, these were conclusions which (however vigorously the applicant may disagree with them) it was plainly open to the judge to make on the evidence before him.
39. Ninth, it is said that the judge wrongly exercised his discretion in refusing an application made by the applicant's counsel in the course of the trial to admit at the last minute a written statement from an employee or former employee of the university who similarly complained of psychological harm suffered at work as a result of an alleged failure in care on the part of the university. I am not aware of the detail of the matter. However, it is plain that the decision was one for the judge's discretion having regard to the legal relevance of the evidence and principles of good case management. There is no substance in this complaint.
40. Tenth, it is complained that the judge erred in concluding that the university did not breach its duty of care by taking one of a number of options open to it once aware of the health risk to the applicant in May 1997. In particular it is said that the applicant's grievance should have been heard by a committee, that the Vice-Chancellor should have taken steps to stop Professors Watson and Dowd from harassing the applicant or that the applicant should have been transferred from Chemical Engineering to somewhere else within the university.
41. I do not know whether that last alternative was argued at trial. However, the applicant does not himself suggest that his forte or interests lay anywhere but in chemical engineering. So far as Professors Watson and Dowd were concerned, the judge considered and made clear findings, which were open to him, that there was no deliberate campaign of harassment and that the disciplinary investigation proceeding at the time was justified. As to the setting up of the grievance committee, the judge held that it was no more than an attempt to pre-empt the disciplinary investigation. Again, while there is no prospect of the applicant agreeing with that judgment, it seems to me that it was one which it was open to the judge to make.
42. Finally, none of the grounds which I have dealt with above and upon which the applicant has relied as a ground of appeal, can enable him to succeed unless he can fault the reasoning of the judge on the questions of foreseeability, breach of duty and causation in relation to the medical position as it presented from May onwards, when the judge held that the university first had the requisite foresight of possible future breakdown by the applicant. Having held as he was entitled to do, that there was no deliberate intention to cause illness or injury to the applicant, the judge applied the observation of Hale LJ in Hatton v Sutherland at paragraph 43 (8) that an employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk. At paragraphs 227-235 of his judgment, the judge set out fully his reasoning for finding no breach of duty, the die of reorganisation having been cast and the disciplinary investigation being underway. Very few of the submissions of the applicant have been directed to that question and none of them has persuaded me that there would be any reasonable prospect of convincing the Full Court that the judge was obliged to come to a contrary conclusion.
43. I have very considerable sympathy for the applicant, whose submissions before me were cogent and who now finds his career in ruins. However, like the judge, I remind myself that his task was not to adjudicate upon a case of unfair or oppressive treatment as such, but to decide a case where liability depended upon foresight of injury to health in which it was necessary to establish not only foresight but the steps which, in all the circumstances, it was reasonable for the employer to take to avoid the injury caused. It was the failure of the applicant to establish every ingredient of that claim which ultimately led to the judge's decision.
44. I would only add there has also been placed before me an Attachment to the main Skeleton Argument where the behaviour of the university is analysed in terms of alleged breach by the university of the applicant's human rights under Articles 3, 5, 6, 8, 9, 10 and 14 of the European Convention. The applicant has submitted that the judgment below amounted to a condonation of the defendant's violations of those rights. Suffice it to say, I do not consider that analysis of the position in those terms adds anything of substance to the case as pleaded and argued below.
45. The application for permission to appeal must therefore be refused.