The Appellant was employed as a part-time receptionist by the respondent at their mail depot in Glasgow. Upon her return from sick leave following suspected Covid-19, in April 2020, at the start of lockdown in the UK, the Appellant alleged that she faced bullying and harassment from her manager because she had requested a protective screen for the reception desk and had even bought her own screen online, which they refused to install. Separately, she claimed there had been a breach of duty by the Defender in failing to carry out a mental health risk assessment given her anxiety and the failure to provide her with a screen.
At first instance, the Sheriff rejected both claims finding that (i) there was no credible or reliable evidence that the Pursuer had been bullied or harassed, and (ii) the ‘failure to install a screen’ claim had not been set out in the pleadings, and even if it was, it failed as it was not reasonably foreseeable that the Pursuer would suffer psychiatric injury as a result of a screen not being provided. Even in the event the Sheriff was wrong in that assessment, there was no evidence that a screen would have been installed prior to her developing a psychiatric injury.
The Appellant submitted that the Sheriff at first instance had erred in finding that the Appellant (the Pursuer) had failed to provide the Respondent with fair notice of the Appellant’s case in relation to the Respondent’s alleged breach of duty. Counsel for the Appellant argued that there were sufficient averments in the pleadings to put the Respondent on notice that the Appellant’s position was that the Respondent ought to have (i) installed a protective screen and had failed to do so; and (ii) undertaken a mental health risk assessment. The decision of the Sheriff at first instance to reject the Appellant’s claim that she had been bullied or harassed was not the subject of the Appellant’s appeal.
In refusing the appeal, the Sheriff Appeal Court considered that the averments contained in the pleadings did not assist the Appellant’s position in relation to fair notice. The Appellant’s pleadings contained no formal averments about risk assessment. The words “risk assessment” or “mental health risk assessment” were absent from the pleadings.
The Court considered that there was no common law case of fault set out in the pleadings based upon a failure to carry out any risk assessment, quite apart from a mental health assessment, or to install a protective screen. The Sheriff Appeal Court considered those cases of fault to be absent from the pleadings.
The Sheriff Appeal Court considered that the Appellant had failed to give fair notice in the pleadings that she had common law claims for negligence for failure to carry out a mental health risk assessment and to install a protective screen. Accordingly, the court refused the appeal.
The Sheriff Appeal Court affirmed the decision of the Sheriff at first instance and the importance of fair notice. The fact that a case proceeds under the “simplified” personal injury procedure does not absolve a party of their obligations to properly plead the case they wish to make. The consequences of not doing so are likely to prevent evidence in support of that being led, even if this case would have failed in any event.
If you have any questions, please do not hesitate to contact Garry Ferguson or Lewis Richardson.
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