The United Kingdom High Court has demonstrated that it will not condone bullying in the workplace. A U.K. employer was found liable on the basis of harassment legislation similar to that in place in most Canadian jurisdictions, as it was held to be reasonably foreseeable that sustained bullying could give rise to psychiatric illness. Employers in Canada should pay close attention to the ruling, because a similar scenario could result in a finding of liability by a Canadian court.
Bank employee suffered from depression
The claimant, Helen Green, was a company secretary in her mid-30s with Deutsche Bank. She earned more than £50,000 (about $105,000 Cdn). Green started working for the bank in October 1997 and, in November 2000, was admitted to hospital where she was diagnosed with a major depressive disorder. In March 2001 she returned to work. In October 2001 she suffered a relapse of her psychiatric illness and had to leave work once again. She never returned.
Bullying by four female co-workers
When Green was first hired in October 1997 she shared a relatively confined space with four other female employees. The difficulties began almost immediately and were alluded to in Green’s first performance appraisal of March 1998 where it was noted there were “internal difficulties” in the department.
Some examples of Green’s co-workers’ behaviour include:
•ignoring Green or staring silently at her, often with arms crossed, in a way intended to intimidate and unnerve her;
•greeting others within the department in a very overt manner, highlighting that they were not speaking to the claimant;
•talking over the claimant or pretending they could not hear anything she said;
•bursting out laughing at her when she walked by;
•crude and lewd comments that made her feel uncomfortable; and
•removing the claimant’s name from circulation lists, hiding her mail and removing papers from her desk.
Quite significantly, the court held it was the cumulative effect that had to be considered of what might otherwise be individual minor slights.
Bullying by male co-worker
Green was also greatly affected by one of her male counterparts who joined the bank shortly after her and with whom she was supposed to work closely. Green and her counterpart gave different explanations as to why their work relationship had deteriorated, but the court accepted Green’s evidence to the effect that he was vulgar, inappropriate and hostile. She testified about incidents where he tried to undermine her work and authority in the eyes of others.
In March 2000 Green requested a meeting with the HR department and, as a result, was referred to a psychiatrist.
She expressed to him how unhappy she was with her work situation and discussed having been bullied for the two-and-a-half years she had been with the bank. Also in March 2000 the HR department arranged for the entire department in which Green worked to attend a harassment awareness course. It was Green’s impression the training was not taken seriously by at least two of the individuals who regularly harassed her, including her male counterpart.
In April 2000 Green complained to HR about inappropriate comments following the harassment training and it was agreed that Green would speak to her male co-worker to try to resolve the matter. Green told him he was the only bully left in the department and she was not going to put up with it anymore. Despite their discussion, he continued to antagonize her.
The court concluded he “conducted a concerted campaign to advance himself within the department at the expense of (Green).” His behaviour was held to be domineering, disrespectful, dismissive, confrontational and designed to undermine and belittle Green in the view of others.
Two mental breakdowns
Green went on holiday at the end of October but when she attempted to return to work she was unable to walk through the main door. She was hospitalized and put on suicide watch. The court concluded Green was subjected to a “relentless campaign of mean and spiteful behaviour designed to cause her distress” which amounted to a “deliberate and concerted campaign of bullying.”
Green was able to make a gradual, part-time return to work in March 2001. In September 2001 she came across an e-mail written by her then supervisor which she interpreted to mean she was going to be removed from her job. Medical experts agreed this e-mail precipitated her second breakdown after which she would never return to work.
Green had some significant traumatic events in her past including childhood sexual abuse by her adoptive father, her reporting of the abuse years later when she was at university and the surrounding conflict with her adoptive mother. The medical experts agreed it was plausible that bullying and harassment could trigger a psychiatric illness in Green’s case. Despite her pre-existing vulnerability, the court said Green’s perception of her treatment at the hands of the group was not distorted by her childhood experiences.
Basis for employer’ s liability
Given the close connection between their employment and the behaviour in issue, including the direct effect on the working environment, the court held that Deutsche Bank was vicariously liable for the behaviour of Green’s four female co-workers and that of her male counterpart.
In addition, the court held the bank was aware of the problem at least as early as March 1998 when Green raised it in her first performance appraisal and that a reasonable and responsible employer would have intervened when first made aware of the problem, which Deutsche Bank failed to do.
The court held that “the managers collectively closed their eyes to what was going on, no doubt in the hope that the problem would go away.”
Had Green’s managers intervened as they ought to have there were obvious steps that could have been taken to stop the bullying.
The court said Green stood to be compensated for two major episodes of depressive disorder followed by a period of four years in which she was not able to return to work and in which her capacity to enjoy life to the fullest had been seriously disrupted by the relapse in her condition in 2004. She was also entitled to be compensated for the degree to which her vulnerability to depressive disorder had been increased.
Green had lost her lifetime career. The court was satisfied that had she not suffered the two major episodes of depressive disorder, she would have continued to work as a company secretary in London, as she had planned, for one financial institution or another at a comparable level of remuneration.
The court awarded general damages of £35,000 (about $74,000 Cdn), £25,000 ($52,000 Cdn) in respect of her disadvantage in the labour market and, while not set out in the judgment of the court, according to media reports published the day after the decision, £128,000 ($268,000 Cdn) for past loss of earnings and approximately £640,000 ($1.3 million Cdn) for future loss of earnings including pension, for total damages of about $1.7 million Cdn.
For more information see:
Green v DB Group Services (UK) Ltd
,  EWHC 1898 (QB).
Helen Gray is a member of the litigation group at McCarthy Tétrault in Ottawa. She can be reached at (613) 238-2108, firstname.lastname@example.org or www.mccarthy.ca.