Graham Dickie V. Flexcon Glenrothes Limited
| Jurisdiction | Scotland |
| Judge | Sheriff P.J. Braid |
| Court | Sheriff Court |
| Date | 06 August 2007 |
| Published date | 17 October 2007 |
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT KIRKCALDY
A 855/03
INTERLOCUTOR
OF
SHERIFF PETER J BRAID
In the cause
GRAHAM DICKIE (Assisted Person), residing at 249 Eriskay Square, Glenrothes, Fife
PURSUER
Against
FLEXCON GLENROTHES LIMITED, a company incorporated under the Companies Acts and having a place of business at Whitworth Road, Southfield Industrial Estate, Glenrothes, Fife KY6 2TF
DEFENDERSKirkcaldy, 6 August 2007
Act: Kelly, Advocate
Alt: Shand, QC
The Sheriff, having resumed consideration of the cause, sustains in part the defenders' first and second pleas-in-law; partially sustains the pursuer's fourth plea in law; therefore refuses to admit the following averments to probation:
(1) In Article 2 of condescendence,
a) The sentence "Harwood continually harassed the pursuer."
b) From "He took away the pursuer's overtime..." to "...completing his administrative tasks on the computer."
c) From "He criticised the pursuer to fellow employees." to "meet the pursuer and criticise him."
d) From "The pursuer spoke to Gibson...." to "...the said Kenny Davidson, Day Shift Leader."
e) From "McKenzie complained to Davidson..." to "...Material Handling to Goods Receiving."
f) From "The pursuer recalls another incident..." to "...Harwood was bullying the pursuer."
(2) In Article 4, from "The pursuer complained to the defenders' Colin Christie..." to "...would address the pursuer's complaint with John Gibson."
(3) In Article 5, from "As hereinbefore condescended upon the pursuer complained..." to "Harwood continued to harass the pursuer."
(4) The whole of Article 6
(5) The whole of Article 8.
(6) In Article 9, the words "et separatim the defenders' negligence."
(7) In Answer 6, from "In the meantime, in view of the Pursuer's continuing absence from work..." to "...accepted by the Pursuer's agents on his behalf."
Consequently, repels the pursuer's second plea-in-law; Quoad ultra, reserves the pursuer's fourth plea in law and the defenders' second plea in law; thereafter, before answer finds parties entitled to proof of their respective averments on Record on dates afterwards to be fixed; ASSIGNS Friday 17 August 2007 at Sheriff Court House, Whytescauseway, Kirkcaldy at 11.30am as a hearing on expenses, and to determine further procedure and to identify proof dates.
Statute referred to:
Cases referred to:
| Avery v Hew Park School for Boys 1949 SLT (Notes) 6 | |
| Banks v Ablex 2005 ICR 819 | |
| Barber v Somerset CC [2004] 1 WLR 1089 | |
| Campbell v University of Edinburgh, unreported, 14 May 2004, R F Macdonald QC | |
| Hunter v Canary Wharf Ltd 1997 AC 655. | |
| Jamieson v Jamieson 1952 SC (HL) 44. | |
| Khorasandjian v Bush [1993] QB 727 | |
| King v DPP (Unreported Judgment of the High Court of Justice, Queens Bench Division, 20 June 2000) | |
| Lau v DPP (Unreported Judgment of the High Court of Justice, Queens Bench Division, 22 February 2000) | |
| Majrowski v Guys and St Thomas NHS Trust [2005] EWCA Civ 251 and [2006] UKHL 34 | |
| McGlennan -v- McKinnon 1998 SLT 494. | |
| McKeown v Lord Advocate, (unreported, Lady Paton, 22 January 2001) | |
| R v Hills [2001] 1 FCR 569 | |
| Rorrison v West Lothian Council 2000 SCLR 494. | |
| Singh v Bhakar 2007 1 FLR 880 Ward v Scotrail 1999 SC 255 | |
| Thomas v News Group Newspapers Ltd [2002] EMLR 78 |
Text books referred to;
| Macphail, Sheriff Court Practice, 3rd Edition | |
| Thomson, Delictual Liability 3rd edn. | |
| Walker, Delict (2nd Edition) (1981) |
Note:
| 1 | In this action the pursuer seeks damages of £500,000 from the defenders, by whom he was employed from April 1999 until February 2003, although it is a matter of agreement that he ceased work in October 2000. The pursuer avers that between April 1999 and October 2000, he was harassed by a fellow employee, Mr Harwood ("Harwood"), to such an extent that he suffered psychiatric illness. The period between October 2000 and February 2003 was partly taken up by a grievance procedure instigated by both the pursuer and by Harwood, and partly by negotiations between the parties resulting in the termination of employment. |
| 2 | The pursuer pleads three grounds of action. The first is that Harwood's conduct amounted to harassment in terms of the Protection from Harassment Act 1997 ("the Act"), for which the defenders are said to be vicariously liable. The second is that the defenders breached their duty of care towards the pursuer by failing to take effective steps to end Harwood's conduct towards him. The third is that the defenders breached their duty of care towards the pursuer by failing to deal with his grievance timeously. |
| 3 | The defenders deny that Harwood harassed the pursuer, although they now accept that if such harassment did occur, they could properly be held to be vicariously liable. They also deny that they breached their own duties of care towards the pursuer. |
| 4 | The case called before me on 11, 12 and 14 June 2007 for debate, principally on the defenders first and second pleas-in-law but also on the pursuer's fourth plea-in-law. Mr Kelly, Advocate, appeared for the pursuer, Miss Shand QC for the defenders. I will return to the detailed submissions below, but in brief the defenders' position was that all three branches of the pursuer's cases were irrelevant and lacking in specification and that the action should be dismissed. Alternatively, if a proof before answer were allowed, certain averments should not be admitted to probation. The pursuer's position, (following the defenders' concession that they could be vicariously liable for any harassment which had taken place) was that two passages in the defences were irrelevant and ought not to be admitted to probation. |
| The pursuer's case | |
| 5 | Given the nature of the debate, at which the pursuer's pleadings were the subject of intense scrutiny, it is necessary to refer to those pleadings in detail. Unfortunately, they are somewhat unwieldy and not always easy to follow, Article 2 alone stretching to some 8 pages. Shorter articles of condescendence would both have made the pleadings easier to follow, and have made the writing of this judgment easier: see Macphail, Sheriff Court Practice, 3rd Edn at paragraph 9.46, where short paragraphs, which enable both parties to state their cases with clarity and precision, are commended. A practical problem also emerged at the debate, namely that although parties and the court had copies of the most up to date Record, it had been printed on different printers at different times and the marvels of modern technology are such that the pagination of each Record appeared subtly different. The consequence of this is that it is not possible to identify any particular passage in the pleadings by reference to page or line number. |
| 6 | Article 2 of condescendence begins by averring the background to the events complained of. The pursuer began employment as a material handler of the defenders in April 1999. During the first three months' induction period of his employment he worked on day shift under Harwood and was employed as a stock controller. From August 1999, he was put on one of the night shifts. In early 2000, Kenny Davidson ("Davidson") commenced employment as day shift leader. The pursuer was transferred to day shift to assist Davidson. One day, Harwood approached him and asked him to hide 10 to 15 palettes of finished product in a skip and not to tell Christie (one of the pursuer's line managers). The pursuer reported matters to Christie. Shortly thereafter Harwood told the pursuer that they were finished and that he would not do anything for him again. |
| 7 | Article 2 then continues:- "Harwood continually harassed the pursuer. Whatever the pursuer did, Harwood criticised him. Harwood continually complained about minor aspects of the pursuer's work. He would criticise where the pursuer had placed materials. He would constantly tell the pursuer to hurry up and accuse him of taking too long with jobs. He tried to stop the pursuer talking to fellow employees. He criticised the pursuer for helping fellow employees with their work. He criticised the pursuer's writing and made him write things again. He took away the pursuer's overtime, saying that the pursuer did not deserve it. Sometimes he stopped the pursuer from completing administrative tasks on the computer. When the pursuer took a day off to get the clutch on his car fixed, Harwood told him he could not "hack it". He criticised the pursuer to fellow employees. He would send e-mails to other employees blaming the pursuer for things he had not done. The defenders' Colin Christie would allow the pursuer to read e-mail correspondence between himself and Harwood. The emails were mostly about Harwood's criticism of the pursuer not completing tasks. The pursuer was shown at least five emails by Colin Christie with the said Christie asking the pursuer to read them. He falsely accused the pursuer of infecting the defenders' computer with viruses. One of the defenders' employees John Hood told the pursuer he overheard a conversation with Mr Harwood with an employee responsible for computer maintenance. Mr Harwood allegedly suggested that the pursuer's computer should be checked because he believed the pursuer was "up to no good on it". Mr Hood subsequently informed the pursuer that Harwood believed the pursuer was corrupting the defenders' computer. Even when the pursuer was working on the night shift and Harwood was working on day shift, Harwood continued to harass the pursuer. Harwood earned overtime by coming in early and working late. When he did so he would meet the pursuer and criticise him. When the pursuer arrived to begin his shift, he would begin to get feelings of anxiety whenever he saw Harwood's car still in the car park. When the pursuer was on day shift with Harwood, he would sometimes have to go home at... |
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