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Email communication: the potential for misrepresentation

At a glance

  • Friction and conflict between individuals can escalate through email communications, in this example, to an extent that requires lengthy litigation
  • Unintentionally offensive and misunderstood email can leave staff in any industry open to allegations of bullying and harassment
  • This claim clearly shows what conduct needs to be proven for allegations of harassment to succeed

The case of: Saha v Imperial College of Science, Technology and Medicine, 07.08.13, High Court

The claimant sought damages from the defendant, claiming she had suffered personal injury from the alleged harassment and bullying by certain members of the defendant’s staff. She made her claim under s.3 of the Protection from Harassment Act 1998 (the PHA). The claimant represented herself.

From 2002 to 2005, the claimant was a student at the defendant college, working under supervision. At first, the claimant and the supervisor enjoyed a good professional relationship but after the claimant began embarking on a PhD course, they exchanged a number of lengthy emails in which the supervisor drew the claimant’s attention to both good and less good points of her work. The supervisor maintained he was trying to assist the claimant but the claimant regarded the emails as amounting to bullying and harassment.

The claimant discussed her concerns about the supervisor with other colleagues in her team.

Broker Top Tips

• Most clients have an exposure to this type of claim. To help your clients avoid allegations of aggressive, bullying or threatening behaviour, advise them that communications by email in the workplace should always be carefully worded, particularly where there is the potential for misreading or misunderstanding, as is frequently the case in written communications

• Ensure that clients have adequate cover and sums insured for directors and officers- and/or legal expenses insurance. Access to legal helplines may prove beneficial in helping to prevent claims ever materialising

The supervisor emailed the entire team, referring to certain difficulties he had experienced with the claimant, including saying “the situation with [the claimant] is particularly acute”. He advised the team generally to improve aspects of their work, but emphasised he fully supported all the team.

Matters between the claimant and the supervisor worsened, and the supervisor said he feared a campaign by the claimant alleging harassment. The claimant said this, in itself, was evidence that the supervisor knew he was harassing the claimant.

The court considered the requirements to satisfy a claim under s.3 of the PHA. The conduct complained of must amount to harassment. The court considered previous case law indicating that harassment involves a course of conduct targeted at the claimant, calculated to cause alarm and distress, which can objectively be regarded as oppressive and unacceptable to the extent that it would sustain criminal liability.

The court held that although the supervisor should not have divulged his concerns about the claimant to the team, the supervisor believed the team knew of the situation from discussions with the claimant herself.

The court held that, while some of the supervisor’s emails could be regarded as peremptory and abrupt – addressing the claimant in “an intemperate, high-handed and at times accusatory tone” – they did not involve aggressive, bullying or threatening behaviour. The supervisor was Swiss, English was not his first language, and some of his comments unfortunately carried a liberal use of exclamation marks.

However, the court held that the supervisor’s conduct did not constitute harassment. It was honestly motivated by his genuine concern for the timely progress of the claimant’s PhD. The claim was dismissed.

Please click here for full judgment.

Image © Getty

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