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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacKay v Scottish Hydro Electric Plc [1999] ScotCS 258 (4 November 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/258.html Cite as: [1999] ScotCS 258

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In this appeal from the sheriff principal at Perth, the appellant is a Miss Phyllis Mackay who raised an action in Perth Sheriff Court against Scottish Hydro Electric plc, her former employers, in which she seeks damages for defamation. The pursuer avers that on two occasions on 23 February 1993 the defenders' employee, Dr James Martin, who was head of engineering and her line manager, made statements to her in the course of his employment with the defenders which were of a defamatory nature. The defenders deny the defamatory nature of any statements made.

A proof was heard before the sheriff who found that it had not been proved that Dr Martin said anything defamatory to the pursuer on either of the two occasions and granted decree of absolvitor. The pursuer appealed to the sheriff principal who refused the appeal on the ground that nothing was said before him which demonstrated that the sheriff was wrong in his assessment of what had occurred at the two meetings and that his finding that nothing defamatory was said must therefore stand. It is against that interlocutor that the pursuer now appeals.

Evidence was led before the sheriff as to the history of the pursuer's employment with the defenders prior to 23 February 1993 and, in order to place the events of that date in context, it is necessary to have regard to that history as outlined in the sheriff's findings in fact. The pursuer was first employed by the defenders in 1978 as a cashier and in about 1987 she was promoted to the post of Deputy Area Wayleaves Officer. She did well in that post and particularly enjoyed that part of her duties which took her outwith the office. From about 1989 onwards there were changes in the senior management of the company and new management practices were introduced. In 1990, following the amalgamation of the Wayleaves Offices in Perth and Dundee, the pursuer was offered and accepted an appointment as an administration officer in the defenders' Perth office. Her line manager in that position, which included many of the duties of an office manager, was Dr James Martin.

The sheriff finds that prior to November 1992 the pursuer's career had been one of steady progress with the company although latterly there had been complaints about her performance. In particular, Dr Martin had received complaints from some of his managers that the pursuer was not performing satisfactorily at work and not providing the service they required. She was neglecting some of the more mundane duties of her office which she regarded as trivial.

During November 1992 Dr Arnold Read, the director of engineering, discovered that the pursuer had not sent out a memorandum as he had instructed her to do. In the course of a conversation with her on or about 26 November he indicated his displeasure and told her that she had "better buck herself up or she would be out the door," or words to that effect. The pursuer took that as a threat of instant dismissal. She was angry and upset and requested an apology from Dr Read. This was not forthcoming. The pursuer then complained to Dr Martin and thereafter wrote to the director of personnel indicating that she felt entitled to a written apology followed by a proper investigation of her alleged misconduct. Between November 1992 and February 1993 the pursuer continued to press for an apology which she never received. On or about 1 February 1993 an offer of around £30,000 under the company's Voluntary Selective Severance procedure was made to the pursuer. On 4 February a meeting took place between the pursuer and Dr Martin at which he told her that he had been unhappy with her performance for some time and that she had not been putting in the same effort as other managers. The pursuer stated that her attitude to her employment had changed because she was not happy about the lack of acknowledgment of her complaint about Dr Read by the director of personnel and that she wanted an internal hearing. She would not put the matter behind her and would not work beyond her contract hours until that matter was resolved.

In presenting her appeal the pursuer, who appeared before us as a party litigant, accepted the history of events prior to 23 February 1993 as narrated by the sheriff. In particular, she accepted that she was unhappy about the unresolved dispute with Dr Read and that between November 1992 and February 1993 she was not giving of her best in the performance of her duties. The pursuer did not however accept the sheriff's finding in respect of what took place at the first of the two meetings between herself and Dr Martin on 23 February 1993.

The notes of evidence which were before us disclose that the account of that event given by the pursuer at the proof was that on the morning of that date she met Dr Martin in a corridor of the defenders' premises where she confronted him and told him that she was at the end of her tether and that matters had to be sorted out. Dr Martin indicated he had been authorised to increase the previous severance offer to £40,000 and before she could say anything in response he said "the alternative is I serve you with notice and prove you incompetent."

The sheriff appears to have rejected that part of the pursuer's evidence relating to a reference by Dr Martin to proving her incompetent since in his finding in fact number 18 which deals with this meeting he makes no mention of it. We note however that both in his examination in chief and in cross-examination Dr Martin's evidence, under reference to his own contemporaneous memorandum on the matter, was that what he said to the pursuer included telling her that the company would "formally set about determining her competence." In these circumstances we consider that the sheriff's finding in fact number 18 does not fully and accurately reflect the evidence led in respect of the morning meeting.

A second meeting between the pursuer and Dr Martin took place on the afternoon of 23 February at the request of the pursuer. At that meeting Dr Martin informed the pursuer who was accompanied by Andrew Gavin, her union representative and also one of her staff, that there had been complaints about her work. He also mentioned her absences from work and again made reference to the company's offer under the severance scheme. He encouraged her to accept that or to resume working in a satisfactory manner for the company. He then told her that if she did neither there might have to be a formal determination of her competence. The sheriff finds that Dr Martin meant by that an assessment of the pursuer's capability using the company's lack of capability procedure.

At the hearing before us, the pursuer's position was that at both the morning and afternoon meetings she understood that what Dr Martin was saying to her was that he would subject her to a procedure which would be designed to test her competence and that that was a suggestion which was in the circumstances defamatory of her. We note that in Article 2 of the Condescendence the pursuer avers that Dr Martin said that he would serve notice on her "and establish that she was incompetent. At the time the said Dr Martin suggested to the pursuer that she was incompetent he knew that such a charge was unfounded".

Mr McKinnon, who appeared for the defenders, argued that the pursuer's case as presented to the sheriff and the sheriff principal was that the defamation complained of was an allegation by Dr Martin that she was incompetent; there had been no suggestion that the mere triggering of an investigation as to her competence was defamatory.

There is no indication in the sheriff's note of the nature of the submission made in this respect by counsel who appeared on behalf of the pursuer at the proof. It is clear however from the notes of evidence that at no stage in her evidence before the sheriff did the pursuer assert that Dr Martin had stated that she was incompetent. The sheriff narrates that the submission advanced on behalf of the defenders was that there was nothing defamatory in saying that a person was incompetent; he also includes a finding in fact to the effect that Dr Martin did not say that Miss Mackay was incompetent. While the sheriff's approach to the matter is not entirely clear, it appears that notwithstanding the evidence given by the pursuer at the proof, he focused his attention on a consideration of whether a specific allegation of incompetence had been made. Having decided as a matter of fact that it had not, it followed that the pursuer's claim failed. The sheriff principal did not depart from that approach.

In these circumstances, and for reasons which will become apparent, we consider that we can, without prejudice to the defenders, approach this matter on the basis of the interpretation of her case now suggested by the pursuer. It follows that the question which now requires to be addressed is whether Dr Martin's suggestion to the pursuer that she be subjected to a procedure designed to test her competence are words which can reasonably bear the defamatory innuendo of incompetence.

While there may well be circumstances in which a suggestion to an employee by her superior of the type made by Dr Martin to the pursuer would reasonably bear such a defamatory innuendo, we do not consider that that applies in the particular circumstances of this case. We formed no impression from the pursuer's submission to us that she felt hurt or insulted at the time by what was said to her. It is not sufficient that words are capable of a defamatory innuendo. A statement that is capable of causing hurt to feelings or damage to reputation creates no liability unless it actually does so (Norrie on Defamation page 15 and Bernhardt v Abrahams 1912 S.C. 748 per Lord President Dunedin at page 752). The pursuer accepted at the hearing before us that she was never of the opinion from what Dr Martin said on 23 February that she was going to be summarily dismissed without some form of enquiry. She explained that she did not consider what was said in the morning to be defamatory. What was said in the afternoon was broadly similar, the only difference being at that stage that the need for a process of investigation was specifically accepted by Dr Martin. The pursuer's position before us was that on 23 February her reaction to Dr Martin's statements was to welcome the suggestion of an investigation into her competence because she was confident that she would be seen to be competent. She also informed us that, had the process of investigation taken place, she would not have considered that she had been defamed. She explained that she resigned from her employment with the defenders with effect from 3 May 1993 and thereafter made an application to an industrial tribunal claiming constructive dismissal. This claim was upheld but the defenders refused to pay compensation and in a letter from their solicitors claimed that the pursuer would have been dismissed in any event on the grounds of incompetence. The pursuer indicated that it was in the light of these subsequent events, including the defenders' failure to carry out any investigative process, that she reached the conclusion that she had been defamed by Dr Martin. In these circumstances we have reached the conclusion that at the relevant time no affront or insult was felt by the pursuer as a result of what was said to her by Dr Martin.

The sheriff expresses his view as to the effects upon the pursuer of what was said to her by Dr Martin in the following terms:

The difficulty for the pursuer is that this is not borne out either by her submission to us or indeed by the notes of evidence led at the proof. It was part of the pursuer's submission that while she was unhappy and anxious in February 1993, the medical evidence from her general practitioner to the effect that she did not consult him between then and 1996 supported her contention that during that time she had succeeded in putting what had happened to the back of her mind and that it was only the court case which brought it all back again. Further, the notes of her evidence indicate that the pursuer was upset, anxious and depressed prior to February 1993. She described herself as feeling particularly depressed and unhappy after 4 February when she had not heard from Dr Martin as to whether there was to be an enhanced severance offer; over the weekend prior to 23 February she felt miserable. She indicates that she suffered from sleeplessness from the time of the dispute with Dr Read in November 1992 and that the situation deteriorated as time went on to the extent that she spent half the night pacing about the house. She describes herself as being ill because of all the strain prior to the afternoon meeting with Dr Martin. Further, it is clear that, even before she met Dr Martin, the pursuer had decided to take a period off work from 23 February and that her agenda of items to be discussed with Dr Martin included the question of whether she was to be given special ("gardening") leave as opposed to taking sick leave. It appears to us on the basis of that evidence that the event which occurred at the defenders' premises which caused the pursuer upset was what was said to her by Dr Read and his subsequent failure to apologise to her. In our view, the pursuer's evidence supports the conclusion which we have reached that she did not suffer any hurt to her feelings arising out of either of the conversations she had with Dr Martin on 23 February 1993. It follows that her action against the defenders must fail.

Had we found in favour of the pursuer, we would in any event not have been prepared to reach the conclusion that Dr Martin's suggestion was motivated by malice. The pursuer accepted that the remarks complained of were made in the context of qualified privilege, the effect of which is to shift the burden of proof back on to the pursuer to prove that the comments complained of were motivated by malice (Norrie on Defamation page 120). She submitted under reference to Fraser v Mirza 1993 S.C. (H.L.) 27 that absence of belief in the truth of a defamatory allegation is usually conclusive evidence of improper motive amounting to express malice. The pursuer contended that Dr Martin had no belief in carrying out an investigation into her competence. That allegation is one which in our view is not supported by the evidence. On the contrary, Dr Martin explained in the course of his evidence that on the basis of the complaints made by various managers there would have been sufficient grounds to set in train the lack of capability procedure. It was his evidence that from November onwards the pursuer's competence was materially impaired to the degree that he could not accept that the situation could continue indefinitely; she was not competently performing the duties for which she was employed. The sheriff does not indicate what view he formed on this aspect of the case but we consider that there was evidence led at the proof from which the Sheriff could have concluded that Dr Martin believed that he had grounds to set in motion a procedure of investigation in respect of the pursuer's competence.

It follows from what has been said that we shall refuse the appeal and, for the reasons stated, affirm the interlocutors of the sheriff principal and the sheriff.