Ward v Scotrail Railways Ltd
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1998 |
| Date | 27 November 1998 |
| Docket Number | No 26 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Reed
Employment—Sexual harassment—Reparation—Negligence—Vicarious liability—Whether employer could be vicariously liable for employee's actions outwith course of his employment in sexually harassing fellow employee—Whether course of conduct—Whether employers policy document on sexual harassment having contractual status—Relevancy
A female ticket inspector had been sent by a colleague a letter of a sexual nature in 1995 which prompted her to speak to him. She told him to leave her alone. He thereafter continued to harass her by making her aware that he was tracking her daily train route, staring at her and swapping shifts so as to be working alongside her. The inspector felt intimidated and complained to her employers who, after the third complaint, agreed to provide her with a supervisor at the beginning and end of a shift. No supervisor was in fact provided. The inspector went off sick in 1996 as a result of her emotional state caused by her colleague's conduct and her employers' failure to resolve the situation. She then suffered prolonged illness with a number of absences from work. On her return she saw her colleague on a number of occasions and became ill as a result of her fear for him. She received medical treatment thereafter. Although initially transferred, she returned to her station and her colleague was transferred elsewhere. She brought an action of damages in which she averred that her employers were responsible for the medical condition she suffered as a result of their own failures, vicarious responsibility for her colleague's actions and for breach of contract as they had issued a policy on sexual harassment at work which they had failed to implement.
Held (1) that although damages might be recoverable for conduct which deliberately caused fear and alarm even in the absence of personal injury the inspector case appeared to be pled in negligence, in which it appeared to be clear that emotional distress did not found an action without physical injury; (2) that her averments of injury appeared to go beyond distress and to include psychiatric illness; (3) that the colleague's actions had to be looked at together as a course of conduct having a cumulative effect and it was not possible to say on the pleadings that the case of fault on the part of the colleague could not conceivably succeed or that the employers were not directly at fault; but (4) that as the colleague had not been acting within the course of his employment but was engaged on a purely personal matter, the case based on vicarious liability was irrelevant; and (5) that as the employers' policy document on sexual harassment purported to impose obligations on the employers' management and employees it could not be said to lack contractual status without proof; and proof before answer allowed.
Janice Ward brought an action of reparation for damages against Scotrail Railways Limited. The averments of parties appear sufficiently from the Opinion of the Lord Ordinary.
The cause called in procedure roll for a debate on parties' preliminary pleas before the Lord Ordinary (Reed) on 6 November 1998. Eo die his Lordship made avizandum.
The cause was thereafter brought out by order on 19 November 1998 in order for his Lordship to hear submissions on the cases ofKhorasandjian v BushELR [1993] QB 727 and Hunter v Canary Wharf LtdELR [1997] AC 655. Eo die, his Lordship again made avizandum.
Cases referred to:
Addis v Gramophone Co LtdELR [1909] AC 408
Bourhill v YoungSC 1942 SC (HL) 78
Bracebridge Engineering Ltd v DarbyUNK [1990] IRLR 3
Burnett v GeorgeFLR [1993] 1 FLR 525
Hicks v Chief Constable of South Yorkshire PoliceUNK[1992] 2 All ER 65
Hudson v Ridge Manufacturing Co LtdELR [1957] 2 QB 348
Hunter v Canary Wharf LtdELR [1997] AC 655
Janvier v SweeneyELR [1919] 2 KB 316
Jones v Tower Book Co LtdICR [1997] ICR 254
Keppel Bus Co Ltd v AhmadWLR [1974] 1 WLR1082
Khorsandjian v BushELR [1993] QB 727
Kirby v National Coal BoardSC 1958 SC 514
McGlennan v McKinnonUNK 1998 SCCR 285
McLaughlin v O'BrianELR [1983] 1 AC 410
Miller v South of Scotland Electricity BoardSC 1958 SC (HL) 20
Moffat v Secretary of State for Scotland 1995 SLT 729
Murdoch v Murdoch 1973 SLT (Notes) 13
R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58
Walker v Northumberland County CouncilUNK [1995] 1 All ER 737
Weldon v Home OfficeELR [1992] 1 AC 58
Whiteside v UK App No 20357/92, 76-A DR 80 (1996)
Wilkinson v DowntonELR [1897] 2 QB 57
Textbooks referred to:
Burn-Murdoch, Interdict, para 371
Erskine, Institute, IV.i.48
Fleming, The Law of Torts (8th edn), p 33
McGregor, Damages (16th edn), para 96/97
Middlemiss, Civil Remedies for Victims of Sexual Harassment,1997 JR 241
Salmond and Heuston on Torts (21st edn), p 443
Stair, Institutions, I.ix.28
Walker, Damages, p 555
Walker, Delict (2nd edn)
At advising, on 27 November 1998, the Lord Ordinary excluded certain averments from probation and quoad ultra allowed a proof before answer.
LORD Reed's Opinion—This action came before me for debate on 6 November 1998 on both parties' preliminary pleas. After hearing argument, in which both parties referred to the decision of the Court of Appeal in Khorasandjian v Bush, I took the case to avizandum. Having then discovered that the Court of Appeal's decision had subsequently been overruled by the House of Lords in Hunter v Canary Wharf Ltd, I had the case put out by order for further argument on 19 November 1998 after which I again made avizandum.
The background to the pursuer's claim, as narrated in her pleadings, can be summarised as follows. She has been employed by the defenders since 1990. She worked as a ticket inspector on trains, and was based at Dalmuir Station in Glasgow. Another employee of the defenders, a Mr Kelly, worked in the office at Dalmuir Station as a clerk. On about 11 October 1995 the pursuer received a letter from Mr Kelly. According to her averments: “The letter had a sexual content and, in particular, contained the following passage: "To the flower the bee is a messenger of love and to both bee and flower the giving and receiving of love is a need and an ecstasy".” Counsel identified this passage as a quotation from a poem entitled The Prophet. The pursuer was offended by the tone of the letter and showed it to a supervisor. She later met the defenders' Customer Services Manager, a Mr Thomas, to discuss her concerns. She complained to Mr Thomas about the letter, and was told that she had three options: she could make a formal complaint; or Mr Thomas could have an informal chat with Mr Kelly; or she could speak to Mr Kelly herself. She chose the third of these options, and spoke to Mr Kelly a few days after receiving the letter. She told him that he should leave her alone. In November 1995 she received a note from Mr Kelly which included a diagram showing her route (ie where she would be travelling on board trains) throughout the day. According to the pursuer, it was not one of his duties to prepare such a diagram for her. She felt intimidated and complained to her supervisors for a second time. She was reassured and told that Mr Kelly would be warned about his conduct. According to her averments: “At about this time, Kelly regularly stared at the pursuer when she worked alongside him. Kelly was swapping shifts to be in the booking office with her. Kelly was making efforts to show the pursuer that he knew where she was working throughout her shift.”
The next incident, according to the pursuer's pleadings, was on about 2 May 1996, when Mr Kelly left a letter for the pursuer's attention in which he wrote: “It took me twice as long to finish my work last night. I'm not saying it's your fault but … you were there!” As a result of this letter and the other matters already described, the pursuer wrote to Mr Thomas stating that she wanted to make a claim in respect of sexual harassment. Mr Thomas undertook an investigation in response to that complaint. In the middle of May the pursuer found herself working alongside Mr Kelly and was unable to cope with this situation. She told Mr Thomas of her feelings, and was offered counselling and the presence of a supervisor when she booked on and off at the beginning and end of a shift. She received counselling, but no supervisor appeared. On about 17 May Mr Kelly left a note indicating that he knew where the pursuer would be throughout her shift. A few days later the pursuer found herself on a shift with Mr Kelly. On about 25 May Mr Thomas told the pursuer that he had interviewed Mr Kelly and that Kelly had admitted authorship of the two letters but denied the other allegations. During the investigation the defenders transferred Mr Kelly to another station. After about a week and a half Mr Thomas had a discussion with the pursuer during which she agreed to try working with Mr Kelly back at Dalmuir Station, on the condition that a supervisor was present when she booked on and off. About two weeks later the pursuer told Mr Thomas that the return of Mr Kelly to Dalmuir was not working out. One of the problems was the defenders' failure to organise the presence of a supervisor as agreed. The other problem was that the pursuer felt insecure because Mr Kelly sat behind a glass window through which he could speak to her, and there was a side door...
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