Robert Oldham, pupil barrister at 12 King’s Bench Walk, highlights the lessons for practitioners in Townsend v Corporation of Trinity House [2023] EWHC 3403 (KB), a claim for bullying and harassment that was struck out.
Background
The Claimant (C) was a trainee cadet in the merchant navy, who claimed that he had been bullied and harassed during training, worsening his pre-existing PTSD.
C brought a claim against the First Defendant (D1), the Corporation of Trinity House, a charity which provided funding for individuals to complete their merchant navy officer training. His claim was premised on the assertion that he had been employed by D1. The Second Defendant (D2), an education institution, had provided the training.
C alleged that an instructor on his training course had made abusive comments to him on two occasions in 2018, and that he suffered further abuse when he complained about these incidents. He claimed that this constituted bullying and harassment, which had exacerbated his PTSD. C’s claims were brought under the Protection from Harassment Act 1997, and the Health and Safety at Work etc. Act 1974 (Commencement No. 1) Order 1974. In addition, C alleged that D1 and D2 had both breached their common law duty of care to him.
The bursary and training agreement was terminated in May 2019. C, who was originally acting as a litigant in person, issued his claims in December 2022. In his pleadings, he admitted that he had become aware in October 2018 that the alleged harassment had exacerbated his PTSD, and that therefore his claim was out of time and an application under s.33 of the Limitation Act 1980 was needed.
In March 2023, C served Particulars of Claim and a Schedule of Loss but did not include a medical report. Instead, C sought to rely on a previous medical report which suggested that he did have pre-existing psychiatric symptoms, but which did not address causation or apportionment. C stated that the delay in bringing his case was due to the mental health problems he had endured due to the Defendants’ actions.
D1 denied that it had employed C or that it had owed him any duties of care under statute. D1 also rejected the allegations of harassment, denying the facts put forward by C.
D2 accepted a common law duty of care to C as an educational institution providing his course of study, but denied the allegations of harassment. It also alleged that C himself had been volatile and abusive.
The judge heard four applications: D1’s for summary judgement/strike out of all of C’s claims against it; D2’s for strike out of C’s Equality Act claims (which were later withdrawn by C); C’s for an extension of time pursuant to s.33 of the Limitation Act 1980 for his personal injury claims; and C’s for relief from sanctions and permission to rely on medical evidence and a schedule of loss served out of time.
Findings
Employment Relationship:
The court followed the well-known test in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 Q.B. 497 to determine whether an employment relationship existed between C and D1. This involved focusing on the reality of the relationship. As the purpose of the training agreement was for C to learn, rather than to provide any service to D1, it was not considered to be an employment relationship. The court considered Wiltshire Police Authority v Wynn [1981] Q.B. 95, wherein police cadets were considered to be under a training contract rather than an employment contract, as the main object of the contract was held to be one of learning rather than work.
In C’s case, it was significant that the contract referred to C as a ‘trainee’. The management of the training scheme itself, and the demands made of C, were managed by D2. C was not required to complete any work or provide any services to D1. The real benefit of the training was to C, who would qualify as a cadet, therefore there was no true mutuality of obligation.
Stepping back and taking all of these points together, the judge held that C had no real prospect of succeeding in his claim against D1, either under common law or statute, and there were no other compelling reasons why this should be disposed of at trial. As such, the claims against D1 were dismissed.
Allegations of Harassment:
The judge moved on to consider whether C’s allegations, taken at their highest, could amount to harassment. She found that they could not. Majrowski v Guys and St Thomas’s NHS Trust [2005] EWCA 251 made clear that the fact that a person suffers distress will not be sufficient to constitute harassment. The judge found that none of the incidents complained of could amount to harassment. Inappropriate language that caused distress could not, in this case, be described as oppressive and unreasonable, regardless of C’s reaction to it.
Limitation:
The fact that C was a litigant in person did not excuse non-compliance with rules and orders. Further, C had not shown that the delay had been due to his mental ill-health. C’s ability to litigate had not been addressed in the medical evidence, and C had been conducting other litigation at this time in separate proceedings. There was no evidence that C had been under a disability – regardless of what his general mental state had been.
In addition, the weakness of C’s case weighed against extending time. C had possessed all the information necessary to bring his claim within time. As such, the Section 33 application failed..
Relief from Sanctions:
There was no good reason for the delay in providing expert medical evidence, and this was a serious breach. It had been plain for a long time that a medical report addressing causation and apportionment was necessary. The court refused permission to rely on the report.
Comment
This case provides a useful illustration of several issues.
First, that a traineeship, even when it involves vocational elements, will not be regarded as employment if the main purpose is that of training. In this case, C received payment via a bursary, had a uniform, went on deployments at sea, had obligations and hours set in his contract, and had to comply with a code of conduct. Nevertheless, as C was not providing a service to D1 (or D2), and any work would be undertaken as a trainee rather than an employee.
It’s easy to imagine a ‘traineeship’ that would muddy the waters further. If an organisation provided a bursary or stipend for an individual to gain practical experience, but that individual, in learning and practising, also completed tasks of use to the organisation, how might the court determine the primary purpose of the contract? It appears that a key factor would be the mission of the organisation – if it is clearly a ‘charitable’ one, focusing on getting people into work, then it is unlikely that an employment relationship would be found [65].
Second, confirmation that a litigant in person should not be given more latitude than a represented party as regards limitation. This case also illustrates that if a claimant wishes to assert that a delay was caused by a health issue, clear medical evidence is needed that shows a causative link with the delay. Further, should a Claimant wish to rely on the disability provisions in the Limitation Act 1980 (s.33(3)), a general state of ill mental health will not be sufficient. The judge considered the White Book commentary, which indicated that a mentally unwell claimant would have to be a patient under the Mental Health Act 1983 to be considered ‘disabled’ for these purposes. This is a relatively strict definition, in comparison to, say, the Ogden test for disability.
Finally, this case acts as a reminder that medical reports must address the correct implications of a claimant’s medical history, not just the history itself. To show that a claim has prospects for the purpose of a relief from sanctions application, this means addressing causation and, if applicable, apportionment. The court is unlikely to allow in a late ‘placeholder’ report to be refined at a later date.
Robert Oldham, pupil barrister
