MacLeod v The Channel Islands Cooperative Society Limited (Royal Court : Hearing (Civil) : Thompson : Personal injuries) [2025] JRC 321 (16 December 2025)

judgment the COMMISSIONER: Introduction 1. In these proceedings, the Plaintiff ("Mr MacLeod") seeks damages for psychological injury said to have been caused by the way he was treated by the Defendant ("the Co-op") in particular by certain Board members.

2. The case was heard over fourteen days in June and July, with oral closing submissions being heard at the beginning of September with written closing submissions filed on behalf of Mr MacLeod and the Co-op in advance of that hearing. The pleaded allegations 3. We start by reference to the pleaded allegations set out in Mr MacLeod's Order of Justice. It was not in dispute that Mr MacLeod began work in 1990 with the Co-op as a trainee and by 2010 had been appointed chief executive, at the age of 40. He had also been appointed a director of the Co-op in 2018.

4. On 28 May 2019, he was signed off with work related stress. His contract of employment was terminated by a letter sent on 27 March 2020. Mr MacLeod was given nine months' notice and placed on garden leave.

5. On 28 June 2020, Mr MacLeod's employment was terminated and the Co-op made a payment to him in lieu of notice.

6. It is also right to record that Mr MacLeod brought proceedings before the Employment Tribunal in relation to his dismissal which have been resolved.

7. The Plaintiff's complaints about the events leading to being signed off sick were set out at paragraphs 3 to 14 of his Order of Justice. It is appropriate to set these out in full: "3. From 2017-2019 the Board, of which the Plaintiff was a member, became increasingly dysfunctional. From around 2017 onwards the Plaintiff tried to engage with both the President and members of the Recruitment and Remuneration Committee or " RemCo " (a Board sub- committee) in order to ensure that the Board could work constructively together in the interests of the Defendant. However, RemCo , with the support and/or encouragement of the Chief Governance Officer and Society Secretary, increasingly displayed an entrenched and factional mind-set, operating through private meetings. This undermined the Plaintiff's ability to direct the day-to-day affairs of the Defendant, as required by his role, and undermined the Board.

4. Board meetings were held approximately every 6 weeks, and these became more and more difficult from 2017 onwards. The Plaintiff began to dread the Board meetings, which were increasingly unpredictable and hostile. Results, no matter how good, were judged as not good enough, and the Plaintiff was repeatedly being set up to fail. He raised his concerns about the atmosphere of the Board to the President at the time, by email in June 2017, and regularly orally thereafter, but no action was taken. The Plaintiff discovered that clandestine meetings were being held by RemCo members towards the end of 2017. It is averred that these clandestine meetings included secretive discussions and/or exchanges between Jennifer Carnegie ("JC") (from 2018) and/or Paula Williams ("PW") and/or Carol Champion ("CC") in which they acted in bad faith in criticizing and/or plotting against the Plaintiff, It is averred that upon dates and times unknown to the Plaintiff due to their secretive and clandestine nature JC and/or PW and/or CC, acting other than in good faith, reached a secret agreement ("the secret agreement") together whose objective was to procure the removal of the Plaintiff from his position. The Plaintiff reserves his right to provide further particularization of these allegations following discovery and/or specific discovery in this action.

5. As a director and as an employee, in his capacity as CEO, the Plaintiff was the subject of bullying and a smear campaign as part of the secret agreement by a group of members of the Board, consisting primarily of the RemCo members. Latterly, RemCo consisted of five Directors out of a Board of nine, in breach of the Defendant's own Corporate Governance Code, and exerted a dominating influence on the whole Board. At the end of 2018, the Plaintiff was erroneously sent emails evidencing that he was subject of this smear campaign by members of RemCo , unjustifiably criticising him and the senior management team ("SMT"), For example, on 7 December 2018, one of the members of RemCo . Paula Williams ("PW") wrote to her fellow RemCo members and the President making serious unfounded allegations against the SMT, led by the Plaintiff.

6. As a result of the stress caused by the aforementioned series of events, including the secret agreement, the Plaintiff started gaining weight during the course of 2018, and increased his alcohol consumption. He also began to experience insomnia, and feelings of powerlessness and low self-worth. It was noted by colleagues that he contributed less and less during the Board meetings as the year progressed. The Plaintiff complained about his symptoms of insomnia, irritability, and inability to think clearly to the President towards the end of 2018 and throughout 2019 but, again, no action was taken.

7. Around the same time, the Plaintiff was subject to an increasing and untenable workload, with his direct reports in 2019 being increased to 12, despite the President having agreed that the maximum number of reporting lines a position should have, was 7. Furthermore, the Plaintiff had Board appointed Directorships in the UK and European co-operative sectors, requiring regular travel.

8. On 5 May 2019, a very difficult Board meeting took place (the "Board Meeting"). By this time, the Plaintiff had reached breaking point psychologically. He had started shaking, was suffering with pulsing sensations in his eyes, and had developed numbness in his left hand and arm together with high blood pressure. In the course of the Board Meeting, Jennifer Carnegie ("JC") shouted aggressively at the Plaintiff and sought to undermine him. The Plaintiff was very subdued during this Board meeting, and his colleagues were surprised that he did not react at all to JC's behaviour. At this point, the Plaintiff was having difficulty sleeping, only managing a few hours a night, and was psychologically unwell by that stage. It is averred that JC acted in breach of her duty as a director in so conducting herself in such an aggressive, uncontrolled and unprofessional manner.

9. The Defendant's longest serving Director, Jennie Vibert, who was retiring at the Board meeting on 5 May 2019, subsequently wrote to the President complaining about the behaviour of members of the Board at that meeting, describing the behaviour of the RemCo Chair, JC, as aggressive.

10. Subsequently the Plaintiff became aware that on or about 21 May 2019, RemCo member PW had applied for his job as CEO, in breach of her duties as a director. The job was not vacant and PW did not have the skill set or experience required for the role. It is averred that PW's ambitions to assume the Plaintiffs role was known to JC and CC for some time prior to her application for it and was part of the secret agreement.

11. Around the same time, the Plaintiff also became aware that RemCo had instructed the President to single him out for an audit of his expenses. This investigation took place and the Plaintiff's expenses were given a clean bill of health. Notwithstanding that, the investigation findings were not formally fed back to the Plaintiff. It is averred that this conduct was also part of the secret agreement to procure the removal of the Plaintiff from his role. It is further averred that JC and/or PW and/or CC had, as part of the secret agreement, contrived to use this audit of the Plaintiff's expenses as a device to allege fraud against the Plaintiff in respect of his expenses, and that such allegations of fraud could be used against the Plaintiff as a purported justification for his removal from his position. In so conducting themselves JC and/or PW and/or CC acted in bad faith and in breach of their duties as directors.

12. On 24 May 2019, on the instruction of the President, the Plaintiff submitted a letter of complaint to the Board about the behaviour of JC. This letter was submitted on behalf of members of the Senior Management Team. It was drafted with the input and support of Mark Cox ("MC"), then Chief Operating Officer and now Chief Executive Officer, and David Rees ("DR"), then Chief Financial Officer.

13. It is evident from this that the considerable concerns set out in the letter, as issued in its final form, were not simply the concerns of the Plaintiff, but were also those of MC and DR, the three most senior members of the SMT.

14. The Board ignored the complaint for over four months despite the Plaintiff's repeated requests that it be considered." 8. We set out later in this judgment the material events that occurred, including what happened once Mr MacLeod had been signed off sick, but we note that from 18 July 2019 he was denied access to the Co-op's email system and he was forbidden to enter Co-op House.

9. The pleading at paragraph 18 then complained that Paula Williams was permitted to commission the eventual investigation of Mr MacLeod's complaint referred to paragraph 12 of the Amended Order of Justice.

10. Paragraph 19 pleaded that information about Mr MacLeod was circulated between Board members in breach of the Data Protection Law.

11. Paragraph 20 pleaded that Mr MacLeod sought to make arrangements to return to work but instead that his employment was terminated as set out above.

12. Paragraph 22 pleaded that the Co-op owed Mr MacLeod a statutory duty of care " to ensure his health, safety and welfare. Further or alternatively there were implied terms in the Plaintiff's contract of employment with the Defendant, in like terms and of like effect ".

13. The complaints of Mr MacLeod were set out in paragraph 23, which it is also appropriate to set out in full as follows: "23. Negligently, and in breach of its statutory, contractual, and common law duty of care owed to the Plaintiff and in breach of the Rules and the Code, it is averred that the Defendant caused or contributed to the Plaintiff's injury in the manner set out herein because it:- i . Failed to manage, appropriately or at all, the behaviour of its Board Members and Officers, particularly those who were members of RemCo , and the way they acted in opposition to the SMT including, in particular, the Plaintiff, between 2017 and 2019; ii. Failed to manage, appropriately or at all, the behaviour of its Directors in the course of Board Meetings between 2017 and 2019; iii. Failed to heed the complaints of the Plaintiff as made to the then President, during 2018 and 2019 about the effects of the RemCo members' behaviour on his psychological health, when it was foreseeable that the same would result in psychological harm to the Plaintiff; iv. Failed to heed complaints made by other Board Members about the behaviour of the RemCo members; v. Causing or permitting the Plaintiff's direct reports to be increased to 12 during 2019, despite the then President having agreed that the maximum number of reporting lines should be 7, thereby exposing him to an impossible workload and

a foreseeable risk of psychological harm; vi. Failed to deal appropriately with PW's application for the Plaintiff's position in May 2019, by allowing her to remain on the Board, subsequently replacing the President; vii. Failed to manage, appropriately or at all, JC who, as the subject of a live complaint, was permitted to play the leading role in compromising the Plaintiff out of the Defendant's employment; viii. Failed to protect the Plaintiff from being subjected to harmful treatment at the hands of the RemCo members, and exposed him to an excessive workload which it knew (by PW's own admission in her email of 1 June 2019) would result in psychiatric harm to him; ix. Caused or permitted the Plaintiff to be singled out for an unnecessary audit of his expenses; x. Caused or permitted personal information about the Plaintiff to be distributed and discussed via unauthorised channels, with the knowledge of the Defendant's Data Protection Officer; xi. Isolated the Plaintiff when he was on sick leave, severing his email which was his primary means of contact with his friends and colleagues without prior warning; xii. Failed to reinstate the Plaintiff email account even when informed by his treating physicians that this was strongly recommended; xiii. Failed to provide the Plaintiff with a safe working environment; xiv. Exposed the Plaintiff to a foreseeable risk of injury. xv.

Failed in its duty of care to the Plaintiff by causing, permitting or acquiescing in the behaviour of JC and/or PW and/or CC when they individually or collectively acted in bad faith pursuant to the secret agreement or otherwise, and by failing to prevent such bad faith conduct as alleged." 14. In its Amended Answer, the Co-op at paragraph 6 pleaded that two informal groups had emerged each arguing for different approaches to the future governance of the Co-op. The pleading in paragraph 6(a) described the first larger group as the modernisers; the second group were described in paragraph 6(b), as the traditionalists and included the then-President, Mr Ben Shenton and Jennie Vibert.

15. This led to the assertion that Mr MacLeod and some of the members of the Executive Management Team ("EMT") were resistant to greater scrutiny of both their own and the Co-op's performance. Paragraph 6(e) contended that matters came to a head at the Board meeting on 5 May 2019 ("the 5 May Board Meeting") following certain criticisms made in a KPMG audit report which the Co-op contended " validated the concerns of the "modernisers ".

16. Paragraph 6(f), in relation to the operation of the Recruitment and Remuneration Committee (" RemCo ") pleaded as follows: "It is denied that the Recruitment and Remuneration Committee (" RemCo ") displayed an "entrenched and factional mind-set" and indeed the Plaintiff was invited to a RemCo meeting. It is denied that the meetings were "clandestine" although RemCo needed to handle sensitive matters discreetly and it was not appropriate for the Plaintiff to be at all such meetings. Prior to the absence of the Plaintiff from May 2019, the meetings were scheduled in advance and duly minuted ." 17. In paragraph 7, the Co-op denied that Mr MacLeod was repeatedly being set up to fail, and described the Plaintiff as often being evasive and defensive when asked direct questions about matters of Board concern. Paragraphs 7(c) and (d) became significant throughout the trial and plead as follows: "(c) It is denied that RemCo held any "clandestine" meetings, whether as alleged or at all. It is denied that Ms Carnegie, Ms Williams and/or Ms Champion, held secretive discussions and/or exchanges, whether as alleged or at all. Any criticism of the Plaintiff was legitimate criticism of his performance and conduct in the proper discharge of the duties of those directors making such legitimate criticism. There was no criticism of the Plaintiff made in bad faith, (d) It is denied that there was any secret agreement between Ms Carnegie, Ms Williams, and/or Ms Champion to procure the removal of the Plaintiff from his position, whether as alleged or at all." 18. The same denial was set out and repeated in paragraph 8 in respect of any form of bullying or smear campaign.

19. The Co-op's case as summarised at paragraph 9 was that it denied that Mr MacLeod had exhibited any particular physical/mental health symptoms during 2018 / 2019, whether associated with stress or anything else. We address the significance of this later in this judgment in relation to the relevant legal principles that apply to claims for psychological injury caused at work by an employer.

20. The Co-op also denied that Mr MacLeod was overworked for the reasons set out at paragraph 10 of the Amended Answer.

21. In relation to the 5 May Board Meeting, paragraphs 11(b) and (c) pleaded as follows: "(b) At that meeting, significant audit and financial problems were relayed to the Board by Mr. A. Quinn from the accountancy firm of KPMG. He presented the findings of his firm's annual audit report. (c) Mr. Quinn explained that the Defendant had reported a Net Current Deficit of $1.7m, which was $1.6m greater than in the previous financial year, Mr. Quinn said this meant that the Defendant was technically unable to meet its liabilities as they fell due (but nevertheless could be viewed as a going concern because of its other capital assets), He required the Board to provide written confirmation that it had proper grounds to believe, and was satisfied that, the business was a going concern." 22. The Amended Answer then continued at paragraphs 11(e) to (h): "(e) The financial anomalies which had been revealed demonstrated a serious issue in the Finance Department. This appeared to be under-resourced and was described by Ms Carnegie as "a clear and present danger to the Society". (f) Mr. Quinn remarked in one of the in camera sessions that he did not believe that the Board was fulfilling its oversight function adequately. He also said that the Defendant was becoming " unauditable " because it was not learning from previous audits and nothing had been done to fix problems or mitigate risk. He

stated that the Executive was at fault in the auditor's mind for the way that the business was running and that the Board was allowing this to happen. (g) In answer to a request to summarise his overall concerns, Mr. Quinn said - · He believed that the level of diligence over financial reporting was not to the required standard, as evidenced by the volume and scale of the Unadjusted and Adjusted Audit Difference. · He had significant concern over the key controls in place. · He believed that the Board could be criticised for not challenging the EMT sufficiently. (h) The Director and head of the Audit and Risk Committee, Mr. Le Tocq , stated that - "he had concluded that there were issues with both the management and oversight of the business which were too deep-rooted to be resolved from a Non- Executive position". He therefore indicated that he would resign his directorship with immediate effect. This compounded the impression that these financial and governance matters required an urgent solution." 23. This led to the assertion that there was general consensus within the Board that the KPMG audit report raised serious issues over the performance and governance of the Co-op.

24. At paragraph 12, the Co-op pleaded that, at the same meeting, the concerns set out in paragraph 11 required robust questioning of those involved. In relation to Ms Carnegie, the Co-op's case was as follows - "(b) It is denied that Ms. Carnegie "shouted aggressively at the Plaintiff and sought to undermine him". It is denied that Ms Carnegie acted in breach of her duties as a director, whether as alleged or at all. Her demeanour and tone were firm but calm. Doing her job and properly discharging her duties as a non-executive director cannot be equating with "undermining" the Plaintiff." 25. In relation to the allegation that Paula Williams applied for the job of CEO, this was denied as follows in paragraph 16: "16. Paragraph 10 of the Amended Order of Justice is denied. It is denied that Ms. Williams applied for the job of CEO. She indicated that she would do what she could to help the management of the Defendant given the very difficult position in which the KPMG audit and the sickness leave of the Plaintiff had left the company. She set this clarification out in an e-mail to Mr. Shenton, dated 5th June 2019, following what appeared to her to be a misunderstanding by him of what she was offering to do. It is denied that Ms Williams had, or that Ms Carnegie and Ms Champion considered that Ms Williams had, any ambition to assume the Plaintiff's role as CEO of the Defendant. It is denied that there was any agreement, secret or otherwise, between Ms Carnegie, Ms Wiliams, and/or Ms Champion, concerning this alleged ambition." 26. The allegation of a secret agreement was also denied at paragraph 17.

27. In relation to the investigation that took place in relation to Mr MacLeod's complaint dated 24 May 2019, the Co-op relied on a report commissioned from Lewis Silkin. The conclusions to that report, which rejected the complaint, were summarised at paragraph 19 of the Amended Answer.

28. Mr MacLeod's allegations about how he was treated after he was signed off work were also disputed.

29. Insofar as Board members used private emails, the reason for this was said to be difficulty in accessing the Co-op's email system.

30. The alleged breaches of duty said to be owed were also disputed. What was admitted was a duty to take reasonable care to provide the Plaintiff with a safe place of work.

31. The Co-op further pleaded that any duty to consider whether to act only arose when there was a present, apparent and imminent risk of psychiatric injury to the Plaintiff, and as at 5 May 2019 Mr MacLeod was seen as a person " of normal fortitude and indeed more than able to look after himself and express dissatisfaction with any particular situation ". The Co-op's case was therefore that it was not foreseeable that Mr MacLeod would go off sick complaining of work related stress until he in fact did so.

32. The specific criticisms set out in paragraph 23 of the Amended Order of Justice were all denied.

33. The Co-op also contended, in the alternative, that any injury Mr MacLeod suffered was caused or contributed to by his own negligence.

34. Paragraph 38 of the Amended Answer noted the opinion of Dr O'Flynn (the Plaintiff's expert psychiatrist) that the major and proximate cause of Mr MacLeod's mental health problems was the termination of his employment, and pleaded that he was not therefore entitled to claim any damages at common law. This was one of the most significant issues the Court had to determine both as a matter of law and in relation to the application of the relevant legal principles to the evidence.

35. Mr MacLeod in his Reply denied the allegation of contributory negligence and repeated the assertions contained in his Amended Order of Justice. In particular, he emphasised that Mr Shenton, who was President of the Coop from 2016 until August 2020, at all material times was aware of certain matters and therefore the Co-op was on sufficient notice that Mr MacLeod was at risk of psychological injury. We address the detail of these matters in the section dealing with key events.

36. In relation to pleadings, it is right to record that the amendments to the Plaintiff's Order of Justice, alleging that Jennifer Carnegie, Paula Williams and Carol Champion were not acting in good faith, were approved by Commissioner Thompson sitting alone in September 2024.

37. These amendments were made following a decision of the Commissioner dated 13 May 2024, reported at MacLeod v The Channel Islands Cooperative Society Limited [2024] JRC 109 ("the May 2024 Judgment"). By the May 2024 Judgment, the Commissioner required the Co-op to provide certain further discovery. This discovery led to the production of WhatsApp messages between Ms Carnegie, Ms Williams and Ms Champion. What was said in a number of these WhatsApp messages is explained later but they underpinned and formed the basis of the averments to pleading bad faith.

38. In relation to bad faith in the May 2024 Judgment, the Commissioner stated as follows at paragraph 92: "92. This is subject to one point. Advocate O'Connell, on more than one occasion, made allegations that certain directors were acting in bad faith or were conspiring with each other to damage the Plaintiff. Those allegations are not made on the face of the pleadings. I indicated that if the Plaintiff wished to make such allegations then the Plaintiff would have to apply to amend his Order of Justice. It was not fair to make allegations against individuals of behaviour that in effect was dishonest without putting them on express notice of such allegation and allowing them time to respond to that in any witness statement that such a person might choose to give." 39. We have referred to this because what Mr MacLeod did not do is pursue any members of RemCo separately on the basis of an allegation of conspiracy; nor did he seek to join any individual members as co-defendants based on their alleged conduct, while alleging that the Co-op was vicariously liable for such actions. Rather he chose to limit his allegations to bad faith conduct which meant that the Co-op had failed to discharge the duties of care alleged to be owed to Mr MacLeod. Reliance on Wilkinson v Downton 40. In Mr MacLeod's Skeleton filed for the opening of trial, at paragraphs 29 to 34 under the heading

" Bullying / intentional conduct ", it was contended that RemCo members engaged in conduct or words which "(a) were targeted and directed at the Plaintiff; (b) lacked any justification or excuse; (c) were deliberate and involved an intent to cause at least severe emotional distress; and (d) the words / conduct did in fact cause Mr MacLeod a recognisable psychiatric injury ". Mr MacLeod's Skeleton then contended that these elements constituted the tort of intentional harm based on Wilkinson v Downton [1897] 2 QB 57 as clarified by the more recent decision of O [A Child] v Rhodes at [2015] UKSC 32 at paragraphs 73 to 74.

41. The tort was described in Wilkinson v Downton as follows: "The real question is as to the 100%, the greatest part of which is given as compensation for the female plaintiff's illness and suffering. It was argued for her that she is entitled to recover this as being damage caused by fraud, and therefore within the doctrine established by Pasley v. Freeman (1) and Langridge v. Levy. (2) I am not sure that this would not be an extension of that doctrine, the real ground of which appears to be that a person who makes a false statement intended to be acted on must make good the damage naturally resulting, from its being acted on. Here there is no injuria of that kind. I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff-that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant." 42. In Rhodes v OPO , Lady Hale and Lord Toulson gave the leading judgment and stated at paragraph 73 as follows: "73. In

Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort. It has three elements - a conduct element, a mental element and a consequence element. The issues in this case relate to the first and second elements. It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness. In Wainwright v Home Office Lord Hoffmann discussed and left open (with expressions of caution) the question whether intentional causation of severe distress might be actionable, but no one in this case has suggested that it is." 43. The reliance on this tort led to Commissioner Thompson sitting alone to determine whether Mr MacLeod could do so at this stage, which required an assessment of his pleaded case. Advocate O'Connell's submissions on Wilkinson v Downton 44. Advocate O'Connell contended that the material facts underlying this tort were clearly pleaded. He emphasised that there was an active course of undermining Mr MacLeod's ability to direct the Co-op by RemCo and Mr Lintell. This involved secretive meetings (paragraph 4 of the Amended Order of Justice), a bullying and smear campaign (paragraph 5), paragraph 8 which referred to the 5 May Board Meeting and allegations that Ms Carnegie shouted at Mr MacLeod, the application for Mr MacLeod's job and the unjustified audit of his expenses (paragraphs 10 and 11), as well as the failure to investigate his complaint.

45. Advocate O'Connell accepted that the Commissioner had previously explored with his client whether he was alleging conspiracy (see paragraph 92 of the May 2024 Judgment set out above) and that his client had chosen not to because it would have required the alleged conspirators to be made parties to the proceedings and Mr MacLeod was clear that he did not wish to do that.

46. Advocate O'Connell contended, however, that he did not need to join individuals for the purpose of alleging the Wilkinson v Downton tort because the Co-op was vicariously liable for acts of its officers and employees.

47. He argued that the threshold in Wilkinson v Downton was different from conspiracy. In relation to the complaint filed by Mr MacLeod, which was not acted upon, this was part of the tort because Mr MacLeod had made it clear in correspondence that the failure to proceed with his grievance was harming his health. The way in which the grievance was ultimately handled was also flawed and deliberately defective. While this particular allegation had not been pleaded, Advocate O'Connell contended it was a matter of evidence and was therefore for the Jurats to consider when the point was put to Paula Williams.

48. Advocate O'Connell further argued that the threshold was lower than for negligence. The thrust of the allegation was that the conduct of RemCo members was oppressive and inappropriate and this conduct was connected by Mr MacLeod to a harm to his psychological health.

49. This tort of causing intentional harm was different from the conspiracy to injure tort; the latter was an economic tort usually causing parties to break their contract.

50. Advocate O'Connell further argued that the failure to intervene by the Co-op was a breach of the tortious duty set out in the commencing words to paragraph 23 of the Amended Order of Justice. The failure to act was a breach of the common law duty of care.

51. Advocate O'Connell further contended that the failure to pursue the grievance and the launching of an expenses claim was an intentional act by Mr Shenton, who Advocate O'Connell contended was aware of the secret agreement as pleaded in the Amended Order of Justice. This was based on the Co-op failing its duty of care by failing to intervene and protect the Plaintiff from the injury that he suffered.

52. While Advocate O'Connell accepted the importance of pleadings (see e.g. Booth v The Viscount of the Royal Court of Jersey [2025] JCA 126 at paragraph 82), he contended that the Co-op clearly knew the case they had to meet.

53. The unpleaded allegations against Mr Shenton were put in this way in a separate skeleton argument filed in relation to whether Mr MacLeod could advance a case based on this tort: "If the President of the company, the President of the society is placed on notice that a Board member is behaving improperly by applying for the chief executive officer's job there is nothing to stop that happening, that is intentional. The present Board is aware that Ms Williams' behaviour is grossly unacceptable. Her behaviour is intended to harm Mr MacLeod and is intended to remove him from his post." 54. Advocate O'Connell therefore contended that a deliberate intention to cause harm could be imputed by the consequences of the harm suffered.

55. Advocate O'Connell also relied on a meeting on 23 May 2019 when Mr Shenton confronted Mr MacLeod with some serious news concerning: (i) Paula Williams had applied for his job; (ii) There was going to be an audit of his expenses; (iii) He was going to have a difficult appraisal; and (iv) Mr MacLeod was shown an email where Paula Williams mocked Mr MacLeod.

56. Advocate O'Connell contended that all the factual issues upon which Mr MacLeod relied to establish the tort were also matters already disputed in the Co-op's Amended Answer. Advocate Heywood's submissions 57. Advocate Heywood emphasised that nowhere was it pleaded in the Amended Order of Justice that the Co-op had an intention to do something and an intention that by doing so Mr MacLeod would suffer at least severe emotional distress; in other words, there had been intention to cause a particular result.

58. He emphasised paragraph 112 of the Rhodes decision which stated, "... there must be an intention on the part of the defendant to cause the claimant distress ". Mere recklessness was not therefore enough. It was not enough for the tort to be relied upon simply because certain members of the Board might have wanted to remove Mr MacLeod as chief executive. An employer generally had the right to remove the chief executive / managing director and that could be unpleasant. Such a scenario was not enough to plead the tort that Mr MacLeod wished to now rely on.

59. The reason why Mr MacLeod was seeking to rely on this tort was because of problems of foreseeability that otherwise existed in relation to his case. The problem was that no one at the Co-op foresaw that Mr MacLeod was going to suffer severe emotional distress until he was signed off on 28 May. This was, according to the Co-op, fatal to Mr MacLeod's case (see paragraph 34 above).

60. He also contended that the Co-op should not be in the position where it was going to have to piece together disparate phrases in order to try and understand the claim it had to meet. The case that Mr MacLeod had brought was one based on negligence and a failure to act in the context of a stress at work claim. That was the basis upon which the Co-op had gathered evidence and spoken to witnesses.

61. At a hearing on 12 June 2024, Advocate O'Connell for Mr MacLeod confirmed that he was not pleading conspiracy. The amendments permitted in the Amended Order of Justice were therefore let in on the basis that what was being alleged was bad faith only and neither conspiracy nor dishonesty was being alleged.

62. If there were any further amendments proposed by Mr MacLeod (which were not produced for the hearing), that would be a late application to amend which would lead to the trial dates being adjourned. The Co-op would resist any such application if amendments were produced.

63. The claim was also prescribed because the matters relied upon had occurred more than three years ago.

64. Allowing the tort to be pleaded also caused expert evidence problems because the experts had been instructed on the basis of negligence and not on whether the Co-op or specific directors had intended to cause Mr MacLeod a specific injury and had caused him that injury.

65. In reply, Advocate O'Connell repeated that the facts were clearly pleaded and there was enough to allow him to plead the tort based on those facts. Ruling on the Wilkinson v Downton tort 66. On the first day of the trial, Commissioner Thompson ruled that he was not going to allow Mr MacLeod's claim based on the tort of intentional harm as referred to in Wilkinson v Downton . He indicated that he was not able to give any detailed reasons on that day but that his detailed reasons would form part of the final judgment in this matter. This judgment contains those reasons.

67. Firstly, in relation to the applicable legal principles on the function of pleadings, these were summarised by Wolffe JA in Booth v Viscount of the Royal Court of Jersey [2025] JCA 126 (" Booth ") at paragraph 82( i ) where the Court stated as follows: "( i ) A party's pleadings set out the case which he brings before the Court for determination. The pleadings give fair notice to the other party of the case which the latter must meet. In particular, where a party proposes to advance an allegation of dishonesty or impropriety, it is a matter of fairness that this should be clearly specified, and properly articulated, in the pleadings, so that the party against whom the allegation is made knows the case which it must meet. Further, the pleadings of the parties crystallise the issues which the parties are bringing before the Court for determination. If a court permits a party to advance evidence and contentions based upon facts which have not been pleaded, the whole purpose of pleadings is undermined." 68. It is also appropriate to refer to sub-paragraphs (ii) to (iv) of paragraph 82 of Booth . The context of these remarks was that Mr Booth before the Royal Court had contended that his affidavits formed part of his pleadings. This led the Court of Appeal to state the following: "(ii) As I understand it, the Appellant does not dispute that his Order of Justice does not contain

any reference to collusion. However, he contends that his affidavits, which do refer to collusion, form part of his "pleadings". That argument proceeds on a misunderstanding of the respective functions of pleadings, on the one hand, and affidavits on the other. Pleadings, as we have observed, give notice of the case which the party seeks to advance. They define the issues upon which the Court is asked to adjudicate . Affidavits, on the other hand, contain evidence. Insofar as an affidavit contains evidence on matters which have not properly been put in issue by the pleadings, that evidence is irrelevant to the issues in the case. (iii) It is consistent with the over-riding objective for the Court to confine a party to the issues which have been properly put in issue in the pleadings . A decision confining a party to the case which has been pleaded does not, on its own, support an inference of predetermination, bias or apparent bias. Nor does it result in that party not receiving a fair trial, whether by reason of breach of the equality of arms principle or otherwise. Far from being irrational, such a decision, on the face of it, advances the over-riding objective of a fair, proportionate and timely trial by confining argument to the matters which have properly been put in issue . (iv) Whilst a trial court may properly give a litigant in person a measure of leeway, provided that

doing so is not unfair to other parties, the extent to which the trial court decides to do this is itself a case management decision, with which the Court of Appeal will be very slow to interfere. Whilst I can understand why the Appellant should feel aggrieved at the decision of the Royal Court not to allow him to develop the argument which he wished to put forward, I cannot say that the Royal Court was obliged to let him do so, or that it went plainly wrong in failing to allow him greater indulgence than it did." [emphasis added] 69. The Commissioner has referred to these sub-paragraphs because Advocate O'Connell, by alleging that the Co-op knew the case it had to meet, cut across the principle that a party must be given notice of the case which that party seeks to advance.

70. In this case, as Mr Heywood argued, what was required to plead the tort of intentional harm was an intention to cause the Plaintiff psychological harm. It was not enough therefore to rely on the tort simply because certain members of the Board might have wanted to remove Mr MacLeod as chief executive.

71. In the Commissioner's judgment, the pleaded allegation set out above, in particular the breaches alleged against the Co-op as set out at paragraph 23 of the Amended Answer (paragraph 13 above), ultimately plead that the Co-op failed in its responsibilities to Mr MacLeod. Sub-paragraphs i -iv, vi-viii and xii to xiv all relate to failures. The nearest allegation coming to intending to cause the Plaintiff harm is sub-paragraph 23(ix) but even that is pleaded in the alternative of causing or permitting.

72. In the Commissioner's judgment, the allegations did not plead that individuals intended to cause Mr MacLeod psychological harm. Rather, the thrust of Mr MacLeod's case is that a group of individuals acted in bad faith and the Co-op failed to prevent them from doing so. This case, in the Commissioner's judgment, was not capable of amounting to the tort of intentional harm.

73. For such a case to be advanced, the individuals who intended to harm the Plaintiff should have been identified, the material acts said to have amounted to such harm should have been pleaded, together with what harm it was said that the individuals intended to cause. Such a pleading would then have led to a consideration of whether the individuals named should be joined as defendants and whether they should have the same or different representation as the Co-op. By contrast, at present, the Co-op has prepared its case on the basis of paragraph 23 of the Amended Answer. The Co-op did not know that it had to meet the case of the Co-op being alleged to have committed the tort of intentional harm.

74. The Commissioner further agreed with Advocate Heywood that in effect this was Mr MacLeod trying to allege conspiracy by the back door, notwithstanding the fact that Mr MacLeod had refused to do so, although the opportunity had been afforded to him.

75. It is also right to set out that nothing new has emerged since the Commissioner ordered additional discovery which would justify a late application to amend.

76. The Commissioner noted that a new application to amend had not been brought and Advocate O'Connell did not seek to do so. In the Commissioner's judgment, he was right not to make such an application because there would have been serious issues to deal with about the need to adjourn the trial to consider separate representation and whether further witness statements would be required, as well as the need for further expert evidence. Advocate Heywood was therefore also right to contend that the medical experts had been instructed on the basis of the current allegations, not on the basis of individuals deliberately intending to cause Mr MacLeod psychological harm.

77. As a result of this decision, the Commissioner directed that certain parts of the Skeleton Arguments filed by Mr MacLeod for the opening of the trial and certain parts of his affidavit should be redacted not to refer to any allegations of the tort of intentional harm. The factual witnesses 78. We next set out our overview of the witnesses and the impression we gained while they were in the witness box. While these views are ultimately matters for the Jurats, the Commissioner agrees with the conclusions of the Jurats and therefore they represent the unanimous views and opinions of the Court. Mr MacLeod 79. As noted above, Mr MacLeod had been CEO of the Co-op since 2010 and a director since 2018. Mr MacLeod provided two lengthy written statements running to over one hundred and eighty pages. Parts of these witness statements, in particular the second witness statement, were based on materials that Mr MacLeod had not seen at the time of the events in issue and also contained his expressions of opinion after the event. The Jurats therefore approached parts of his statements and his evidence with some caution because there was some force to the Co-op's criticism that Mr MacLeod was at some points trying to " retrofit " evidence received after discovery in support of his case.

80. Mr MacLeod gave us the impression that he was a strong personality and we could well understand that while CEO he was the dominant figure. While no one likes to face cross-examination, Mr MacLeod clearly did not like being challenged. He was therefore cautious in his answers and at times was clearly reflecting on the impact a particular answer might have on his case. Occasionally being challenged tipped over into irritation. These observations do not mean that Mr MacLeod was not being truthful and in overall terms we accepted much of his evidence, albeit with a degree of caution as we have expressed. We should add that when Mr MacLeod was re-examined and was talking about the business of the Co-op, he was much more effusive than when he was being cross-examined. This revealed to us the passion he clearly held for the Co-op. By contrast, and understandably, he was much more reticent to talk about his own feelings. He also did not wish to be present when the medical experts were discussing their opinions regarding what had happened to him. This was entirely understandable. He was candid in accepting that he was stoic when acting as CEO and therefore kept going and that he did not himself appreciate in the events leading up to him being signed off work that he was going to suffer a psychological breakdown. He also fairly recognised that if he was not aware of this others were

unlikely to be so. We felt that he was reluctant to accept that the Board of the Co-op could challenge the executive directly rather than through him, or that the Board could hold him accountable. We wish to make it clear however that, notwithstanding these observations, overall, we found Mr MacLeod to be truthful. Where there was a conflict between the evidence of Mr MacLeod and Ms Carnegie, Ms Champion or Ms Williams, we had no hesitation in preferring the evidence of Mr MacLeod. Mr Allan Smith 81. Mr Smith was a former CEO of the Co-op. He provided a short statement confirming Mr MacLeod's abilities. While he had retired from the Co-op in 2008, he had held a consultant role, including mentoring Mr MacLeod and meeting with him every four to six weeks. Mr Smith was also a strong character. He emphasised with force and conviction that the values of the Co-op were different to those of an ordinary business, while he also accepted that the business of the Co-op still needed to be well run and run profitably. He was not involved in the events that led to this dispute and Mr MacLeod did not discuss them with him. In particular, Mr MacLeod did not discuss at any time in the events leading to him being signed off that he was under stress. Mr David Rees 82. Mr David Rees was the former finance director of the Co-op. His employment was terminated by the Co-op on 2 March 2020, shortly before Mr MacLeod was given his initial notice of termination later the same month.

83. Mr Rees was chief financial officer for six years up to the termination of his employment. Prior to that, he acted as secretary of the Co-op for fifteen years, as well as discharging the functions of money laundering compliance officer and money laundering reporting officer. Although he did not have professional qualifications as an accountant, he had obtained a chartered secretary qualification and had worked his way up through the business. He came across as being a safe pair of hands who knew his role and what it entailed and who understood the financial accounts of the Co-op.

84. While Mr Rees was reserved giving evidence, we found him to be a credible witness. In particular, we accepted the explanations he gave to us about Ms Carnegie at Board meetings generally and at the 5 May Board Meeting. We also accepted his explanation of why he was not concerned about the KPMG report. We address the events of the 5 May Board Meeting and the KPMG report later in this judgment. We also accept in relation to the Lewis Silkin report, which we also address later in this judgment, that Mr Rees was more cautious in what he said to Lewis Silkin because he was an employee at the time, compared to the evidence he gave to us about Ms Carnegie and the 5 May Board Meeting. The Jurats have concluded that this was understandable but this caution does not mean that Mr Rees was not telling the truth in the answers to the questions put to him. In the view of the Jurats, he was a truthful and credible witness and we accepted his evidence without hesitation. Mr Peter Roffey 85. Mr Peter Roffey also gave a witness statement. He was a director of the Co-op from 1992 until 2018 and for a period was President. Like Mr Smith, he gave a strong, supportive character reference of Mr MacLeod. In his witness statement, Mr Roffey fairly accepted that he had no insight to offer of the exact events leading to Mr MacLeod's departure as these were outside his knowledge. He did give evidence

that he met Mr MacLeod in February 2020 and said that he seemed to have recovered from a fairly serious breakdown. Mr Roffey also explained that Mr MacLeod at that time was still weighing up his options about whether he wished to return to work. While Mr Roffey's evidence was brief, he was a credible witness and we accepted his evidence insofar as relevant to the issues we had to determine. Mr James Plumley 86. Mr Plumley was a former senior executive of the Co-op who retired in January 2022. He joined the Co-op in 1998 and held various senior positions. His final position was chief development officer and he was part of the executive team. Like others, he gave evidence about the Co-op values and a character reference in support of Mr MacLeod. He did not witness at first hand the treatment that it is alleged that Mr MacLeod was subjected to. He also accepted that he had not witnessed any impact on Mr MacLeod prior to him being signed off at the end of May 2019. While we considered Mr Plumley to be a truthful witness, his evidence was therefore of limited assistance in relation to the issues we had to determine. Ms Kiley Henley 87. Ms Henley's professional background was in human resources and she has a Master's degree in this area. She began working for the Co-op in 2010 when she was appointed to the role of HR support manager. This was when she first met Mr MacLeod. Her role meant that she was the second most senior HR person in the Co-op at that time. She left the Co-op in 2013 to focus on raising a family. She was elected a director of the Co-op in May 2016, a role which she held until February 2019 when she resigned for personal reasons. She was also friends with Mr MacLeod but we concluded this did not affect the evidence she gave.

88. She gave evidence about the atmosphere at Board meetings, in particular in relation to Jennifer Carnegie, but also including Paula Williams and Carol Champion. She described their approach as negative and critical and, in particular, they used every opportunity to criticise Mr MacLeod. The most significant part of her evidence was that Ms Henley claimed she overhead a conversation between Ms Carnegie and Ms Champion discussing Mr MacLeod's expenses and that " we can get him on fraud ". In relation to this issue, while she explained in her evidence that she had been mistaken in her witness statement as to when she heard this conversation, we accepted this change of evidence and we were satisfied that the conversation took place. We address this in more detail later in this judgment. Ms Henley was clear under cross examination that the conversation took place and we concluded that her evidence was credible and that she was telling the truth. Ms Jennifer Carnegie 89. Ms Carnegie's current roles are that of senior executive and leadership consultant. She works as a chief operating officer, is chair of the Jersey Development Company and a Board member for the Channel Islands Ombudsman and Jersey Business Limited. She also is in partnership with General Sir Peter Wall, former head of the British Army to support the needs of businesses facing leadership challenges.

90. She was co-opted onto the Board of the Co-op as a non-executive director in March 2018. She retired as a director after serving the maximum six year term permitted for co-opted directors leaving in March 2024. Earlier in her career, she held various posts with a large American corporation for thirteen years. During her time on the Co-op Board, she sat on RemCo . She became chair of RemCo on 8 August 2018.

91. Like Mr MacLeod, she was a strong character, and also like Mr MacLeod, we could see how she could be intimidatory. That is where however the similarity ends. Where she could, when giving evidence, Ms Carnegie sought to deflect responsibility onto Mr MacLeod, the Board of the Co-op as a whole, Mr Shenton or other members of RemCo . She also sought to downplay her role in relation to various events or try to indicate they were not significant. We were not persuaded by this approach. We have concluded that Ms Carnegie was effectively the " ring leader " of the three members of RemCo against whom bad faith was alleged, namely Ms Carnegie, Ms Champion and Ms Williams. Yet she refused to accept any responsibility for her actions. She was also unable to point to any evidence to support the general statements of principle or assertions that she made to justify her conduct. She also tried to downplay the WhatsApp messages between members of RemCo by suggesting that the other members of the WhatsApp group were not her friends, which was inconsistent with her witness statement at paragraph 34. Unless it was corroborated by independent contemporaneous documents, we were therefore unable to accept any of her explanations for her conduct. Wherever there was a conflict between any witnesses called by Mr MacLeod, including Mr MacLeod himself, we preferred the evidence of those

witnesses. We set out our detailed findings on the factual evidential issues and the role Ms Carnegie played in relation to those issues later in this judgment. Ms Carol Champion 92. Ms Champion provided a witness statement and a supplemental witness statement. The latter dealt specifically with the evidence of Ms Henley. Ms Champion was a director of the Co-op from May 2011 to June 2021. After initially working in insurance, she founded her own business specialising in nutrition and has run her own practice since 1999.

93. Of the members of RemCo who gave evidence, Ms Champion was the least impressive. She ultimately was a follower of Ms Carnegie and was not able to give any evidence of substance in answer to the points put to her. At times, we found her answers difficult to follow and it was not always clear to us whether her answers were that she could not remember events or she was asserting that they did not happen. For the most part, she did not appear to grasp issues and at times was flippant in her responses. We accept that the latter may have been in part be due to nervousness. However, her responses when being cross-examined could descend into rudeness and showing a lack of respect. In particular, when being questioned about e-mail exchanges or WhatsApp messages, her response was repeatedly that she could not remember or had no idea. Like Ms Carnegie, we therefore preferred the evidence of Mr MacLeod and witnesses for Mr MacLeod over the evidence of Ms Champion. Also, like Ms Carnegie, unless supported by independent contemporaneous documents, we were not able to accept any explanations to the extent that Ms Champion was able to offer them. Ms Paula Williams 94. Ms Williams became a director of the Co-op in May 2016. She became President of the Co-op in August 2019 after the resignation of Mr Shenton. She resigned as President and as a director in March 2021. Her professional background was training and coaching services. In 2013, she obtained a Master's degree in business administration from Henley Business School, primarily focusing on strategic management of which she was rightly proud.

95. While Ms Williams was one of the three directors against whom allegations of bad faith were made, our view of her evidence is different to the conclusions we have reached in respect of Ms Carnegie and Ms Champion. We formed the view that at times Ms Williams wanted to assist the Court and to provide a true account of events. Certainly, parts of her evidence did ring true as we address later in this judgment. However, at other times she was defensive and relied on the stock line that she did not understand the context and so was unable to answer the specific question put to her. She too sought to deflect responsibility on to other members of RemCo . In particular, we were unable to accept her evidence in relation to whether or not she applied to replace Mr MacLeod as CEO or her responses to the criticisms put to her of the Lewis Silkin investigation. We address the details of these issues later in this judgment. Mr Chris Lintell 96. Mr Lintell was the chief governance officer and society secretary of the Co-op, a position he held from 2014 until he left the Co-op in December 2021. Prior to joining the Co-op, firstly, he had spent ten years as company secretary of Toshiba Information Systems (UK) Limited. The post he held immediately prior to joining the Co-op was director of corporate services at CPA Global Limited for over ten years. It is right to record that during the hearing, both Mr Lintell and the Commissioner recalled that they had met while Mr Lintell was at CPA Global. Disclosure of this was made in open Court. No one considered that this gave rise to any conflict of interest or grounds for the Commissioner to recuse himself.

97. While no allegations of bad faith were made against Mr Lintell, as set out above, he was part of the " modernisers ". His evidence was therefore very much aligned with that of Ms Carnegie, Ms Champion and Ms Williams. In relation to Mr Lintell, while he endeavoured to give answers that were honest, when under pressure, the answers he gave varied between being ponderous, pedantic or literal. Some of the explanations he gave to justify his conduct were also wholly unrealistic. At times, Mr Lintell seemed unable to appreciate the criticisms being put to him or to provide any meaningful responses to those criticisms. In particular, he did not see any difficulty with his involvement in the instruction of Lewis Silkin; he was also quite clear that he encouraged emails between directors to be sent using private email addresses to prevent Mr MacLeod having access to the same but he did not appear to have taken any attempts to ensure that copies of such emails were preserved for discovery. As the chief governing officer and company secretary, we found his approach to the preservation of documents to be astonishing. Overall, although at times he made certain statements which we accepted as true, for the most part, his evidence was unpersuasive and was not evidence we were able to accept where there was any conflict between Mr MacLeod or his witnesses, or where his evidence did

not correlate with generally acceptable standards. Ms Kellie-Jayne Dixon 98. Ms Dixon was the PA to Mr MacLeod. She began working for the Co-op in 2003 and became Mr MacLeod's personal assistant in 2015. In addition to explaining Mr MacLeod's work pattern, her main evidence concerned how she handled Mr MacLeod's sickness absence. She was an honest and straightforward witness and we accepted her evidence.

99. Ms Dixon also provided a supplemental statement relevant to the evidence of Ms Henley. The contents of this supplemental statement were not challenged. Ms Natalie Clare 100. Ms Clare is the current chief people officer of the Co-op, a role she has held since May 2022. She has worked in HR for over twenty-five years prior to joining the Co-op and has held various posts in Jersey. She was not employed by the Co-op at the time of the issues in these proceedings. Her role in these proceedings was therefore limited to setting out the contractual benefits to which Mr MacLeod was entitled as CEO. She also gave evidence of the interaction between human resources and Mr MacLeod in 2019 by reference to Mr MacLeod's personnel file. Again, she was a straightforward and truthful witness. To the extent that the evidence she gave was relevant, we accepted it. We should add that Advocate O'Connell sought to cross-examine Ms Clare, asking her to express her opinion on the events in dispute. He was not permitted to do so because Ms Clare was giving evidence as a witness of fact and not as an expert. Mr Ben Shenton 101. While Mr Shenton did not appear before us, we refer to him because his name appeared throughout the evidence and he was clearly a key protagonist and his evidence on a number of documents would have been of real assistance to the Court. However, neither party chose to call him.

102. In light of this, the Commissioner invited submissions as to whether the Court should summon Mr Shenton of its own motion to enable Mr Shenton to be cross-examined by both parties on the material issues. While the Court considered that it possessed the power to do so pursuant to Rule 6/20(7A) of the Royal Court Rules , Commissioner Thompson, sitting as a single judge, concluded that it would be wrong for the Court to exercise this power because this would involve the Court " descending into the arena ". In Sainsbury's Supermarkets Ltd v Mastercard Inc [2020] UKSC 24 , the Supreme Court at paragraph 242 stated the following: "In the adversarial system of litigation in this country, the task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth. [ ... ] As Lord Wilberforce stated in Air Canada v Secretary of State for Trade [1983] 2 AC 394, 438 - "In a contest purely between one litigant and another ... the task of the court is to do, and be seen to be doing, justice between the parties ... There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented,

that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter - yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done."" 103. While this observation was with regard to the adversarial system applicable in England and Wales, fundamentally trials in Jersey are also based on the same adversarial system, notwithstanding any differences in the applicable procedural rules in Jersey compared to England and Wales.

104. In Jones v National Coal Board [1957] 2 QB 55 at pages 63, Lord Denning stated: "... In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. ... If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict" - see Yuill v. Yuill. ... So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties - see In re Enoch & Zaretzky, Bock & Co. So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other; see Rex v. Cain Rex v. Bateman, and Harris v. Harris, by Birkett L. J. especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost - see Reg. v. Clewer. The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary

to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well, Lord Chancellor Bacon spoke right when he said that - "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal." .... " 105. In light of these warnings, Mr Shenton was not summoned to give evidence. The Court did not therefore have the benefit of hearing from Mr Shenton in relation to the various documents that he sent or received. However, the evidence in this case has required us to make observations on Mr Shenton's conduct as it appeared to us from the documents, notwithstanding that we did not hear from him. The Jurats were very conscious that they did not have any explanation for his conduct in reaching the conclusions they have reached and have taken this into account. We have set out these matters in this part of the judgment so that it is clear how we have approached the evidence of Mr Shenton. Expert witnesses The psychiatric evidence 106. The Plaintiff retained Dr O'Flynn, who is a consultant psychiatrist working in the NHS. The Co-op retained Professor Fahy who is also a consultant psychiatrist working in the NHS. He is also professor of forensic mental health at King's College, London.

107. In its closing submissions, the Co-op made criticisms of Dr O'Flynn as to why his evidence should not be relied upon. While there was some force to these criticisms, and Dr O'Flynn was not a natural communicator, Dr O'Flynn stuck to his guns in relation to what was at the heart of his evidence, notwithstanding mistakes he had made, and notwithstanding that he was sympathetic to Mr MacLeod. By contrast, the evidence of Professor Fahy was more polished.

108. In relation to the evidence of both, there were three main areas covered: (a) How far Mr MacLeod's injury was foreseeable prior to being signed off work on 28 May 2019? (b) How he was treated by the Co-op between being signed off and his dismissal; and (c) The effect of the dismissal on him.

109. In relation to issue (a), in our view, the experts were largely agreed. In particular, Professor Fahy on day 13 at page 141 of the transcript stated: "If there is a coordinated attack that is planned in order to undermine his reputation and professional integrity and to oust him, then yes, that could be viewed as a foreseeable cause of psychological harm." 110. While Professor Fahy later tried to row back from this statement, we were not persuaded by these attempts; rather, we agreed the above extract as an accurate assessment and consistent with the evidence of Dr O'Flynn.

111. In relation to issue (b), we preferred the evidence of Dr O'Flynn and were not persuaded by the submissions of Professor Fahy on this issue. We address this later in this judgment.

112. In relation to issue (c), the experts were agreed. Again, we analyse the effect of this later in this judgment. The employment experts 113. Mr MacLeod retained Mr Trevor Gilbert to consider the employment opportunities for Mr MacLeod had he not been dismissed from the Co-op.

114. Mr Gilbert's experience was in the field of recruitment. He ran his own business for fifty years and also acted as ad-hoc advisor to the John Major conservative government on disability issues. He has acted as an independent witness since 1989.

115. The Co-op retained Mr David MacNaught who advised on essentially the same issues as Mr Gilbert. Mr McNaught's background was as a human resources practitioner for forty-one years, initially in a multi-national corporation and for the last twenty-eight years as a self-employed consultant on employment earnings.

116. The fundamental question between the employment experts, who both gave evidence by video link, concerned what earnings Mr MacLeod might achieve on the assumption that he was no longer a CEO of the Co-op. This was related to issues of loss. We address our detailed findings in the loss section of this judgment.

117. In relation to the expert evidence we heard, we preferred the evidence of Mr Gilbert to that of Mr McNaught on Mr MacLeod's earning capacity. While both were experienced, Mr Gilbert was clear in his opinions and not shaken on cross-examination. By contrast, we were not persuaded that Mr McNaught's assumptions were justifiable and in our view he failed to take into account the limited opportunities available to Mr MacLeod in Jersey. Rather we felt it was a hypothetical desk top exercise based on options available in the UK.

118. Both employment experts also gave evidence on the issue of how long Mr MacLeod, but for the events leading to his dismissal, would have remained as CEO. This was based on Mr MacLeod's case that he would have remained in post until he was 67 i.e. the normal retirement age for Co-op employees. On this topic, we did not find the evidence of either expert persuasive and as we explain later, ultimately, the Jurats reached their own conclusion on this question. The applicable legal principles 119. We next set out the applicable legal principles.

120. These concern: (i) The approach that the Courts in Jersey should take in respect of claims for psychiatric injury said to have been caused by an employer. (ii) The applicability of the legal principle that an employee cannot claim damages arising from the fact or manner of that employee's dismissal. In this case, a key issue for the Royal Court was the extent of any exception to this general principle.

121. It is also right to set out in this part of the judgment, as Mr Heywood reminded us on behalf of the Co-op in his opening and closing submissions and at various points in the trial, that the Plaintiff's claim was not an employment claim. As noted above, that issue has been settled. Rather, as summarised in the pleaded allegations section of this judgment, in summary, the allegation is that the Co-op by its alleged acts or omissions caused or failed to act upon a foreseeable risk of psychiatric injury suffered by Mr MacLeod, and that he has suffered loss and damage as a consequence. The legal principles that we address relate to this issue. Claims for personal injury based on psychiatric ill health 122. We start by reference to the English Court of Appeal decision of Hatton v Sutherland [2002]

EWCA Civ (" Hatton ").

123. In each of the four appeals in Hatton , the defendant employers appealed against findings of liability for an employee's psychiatric illness caused by stress at work. While the facts of these appeals do not assist in relation to Mr MacLeod's case, the judgment in Hatton is significant because the judgment from paragraphs 3 to 43 sets out a number of important observations and guidance as to how the Courts in England and Wales should approach these types of claims.

124. Apart from one observation, the House of Lords, on a further appeal in one of the four cases titled Barber v Somerset County Council [2004] 1 WLR 1089 at paragraph 63, described the commentary of the English Court of Appeal in Hatton as follows: "The exposition and commentary in this part of the judgment is a valuable contribution to the development of the law (although your Lordships have heard no argument on the section dealing with apportionment and quantification of damage, and I think it better to express no view on those topics)." 125. At paragraph 65, in commenting on paragraph 29 of the English Court of Appeal's decision in Hatton , while the House of Lords described paragraph 29 as useful and practical guidance, the House of Lords also stated, "... it must be read as that, and not as having anything like statutory force ". We consider that this observation applies to the whole of the guidance in Hatton . The House of Lords then cited with approval, a statement of Swanwick J in Stokes v Guest [1968] 1 WLR 1776 AT 1883 as follows:- "The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled

to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent." 126. Finally, on the facts of Hatton , the House of Lords disagreed with the Court of Appeal on the application of those tests. Again, this does not matter for the purposes of this judgment, save to note how difficult these types of claims are. In particular neither case had to deal with the effect of a subsequent dismissal on an employee who by the time of the dismissal was suffering from psychiatric injury said to have been caused by an employer.

127. Returning to Hatton , we refer to the following paragraphs of the guidance: 128. At paragraph 4 Hatton cited an extract from the English Law Commission's consultation paper on Liability for Psychiatric Illness (1995) (Law Com no 137), "However, there is now a considerable degree of international agreement on the classification of mental disorders and their diagnostic criteria, the two most commonly used tools being the most recent American Diagnostic and Statistical Manual of Mental Disorder, published by the American Psychiatric Association (4th edn . 1994) (DSM-IV) and the World Health Organisation's ICD-10 Classification of Mental and Behavioural Disorders - Clinical Descriptions and Diagnostic Guidelines (1992). (2) While some of the major mental illnesses have a known or strongly suspected organic origin, this is not the case with many of the most common disorders. Their causes will often be complex and depend upon the interaction between the patient's personality and a number of factors in the patient's life. It is not easy to predict who will fall victim, how, why or when ." [emphasis added] 129. In exploring occupational stress, we also refer to paragraph 9: "[9] The third is a general booklet of guidance from the Health and Safety Executive, Stress at Work (1995). This is particularly helpful in distinguishing clearly between pressure, stress, and the physical or

psychiatric consequences (p 2) - "There is no such thing as a pressure free job. Every job brings its own set of tasks, responsibilities and day-to-day problems, and the pressures and demands these place on us are an unavoidable part of working life. We are, after all, paid to work and to work hard, and to accept the reasonable pressures which go with that. Some pressures can, in fact, be a good thing. It is often the tasks and challenges we face at work that provide the structure to our working days, keep us motivated and are the key to a sense of achievement and job satisfaction. But people's ability to deal with pressure is not limitless. Excessive workplace pressure and the stress to which it can lead can be harmful. They can damage your business's performance and undermine the health of your workforce."" 130. We further refer to paragraph 10: "[10] Two other important messages emerge from these documents, First, and perhaps contrary to popular belief, harmful levels of stress are most likely to occur in situations where people feel powerless or trapped. These are more likely to affect people on the shop floor or at the more junior levels than those who are in a position to shape what they do. Second, stress-in the sense of a perceived mismatch between the pressures of the job and the individual's ability to meet them is a psychological phenomenon but it can lead to either

physical or mental ill-health or both." 131. In paragraphs 11 and 13, Hatton explored differences between psychological harm and other work related harm as follows: "[11] Mr Hogarth, on behalf of the appellant defendant in Barber's case, has pointed to several differences between this and other kinds of work-related harm, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work. These are in addition to the general differences between physical and psychiatric disorders discussed earlier. (1) The most significant relates to who knows what. The employer is or should be aware of what is going on in his own factory, school or office . He is much less aware of what is going on in his employees' minds or in their lives outside work. There are many other people, such as family, friends and colleagues, who are likely to know far more about this than the employer. Indeed, the employee may very well wish to minimise or conceal the true state of affairs from his employer - no one wants to be thought unable to cope. (2) The employer is or should be largely in control of the workplace, equipment and physical conditions in which the work is done . He is much less in control of the way in which many of his employees, especially professionals or those who are expected to prioritise their own tasks, choose to do their work

and balance the demands of their work and life outside the workplace. (3) The employer can be expected to take responsibility for keeping the physical risks presented by the workplace to a minimum. But responsibility both for causing and for doing something about its psychological risks may be shared between many people, family, friends and the individual himself, as well as the employer. An individual who recognises that he is experiencing levels of stress which may be harmful to him has to make some decisions about how to respond to this. The employer's room for manoeuvre may in some cases be limited. At the extreme, his only option may be to dismiss the employee who cannot cope with the job. ..... [13] When imposing duties and setting standards, the law tries to strike a balance which is reasonable to both sides. Here there are weighty considerations on each side. It is in everyone's interests that management should be encouraged to recognise the existence and causes of occupational stress and take sensible steps to minimise it within their organisation. It is in the interest of the individual employees who may suffer harm if their employers do not. It is in the interest of the particular enterprise which may lose efficiency and workers if it does not. It is in the public interest that public services should not suffer or public money be wasted. Concern about this issue

arose during a period of great upheaval in the workforce, and in many large organisations, bringing changes in management ethos, instability and insecurity. The documents we have seen all aim to encourage management to take the issue of occupational stress seriously ." [emphasis added] 132. We were also conscious of the warning in paragraph 14 of setting the standard of care too high on employers or the threshold of liability too low. Returning to Hatton , the Court's observations continued at paragraph 15: "[15] Some things are no one's fault. No one can blame an employee who tries to soldier on despite his own desperate fears that he cannot cope, perhaps especially where those fears are groundless. No one can blame an employee for being reluctant to give clear warnings to his employer of the stress he is feeling. His very job, let alone his credibility or hopes of promotion, may be at risk. Few would blame an employee for continuing or returning to work despite the warnings of his doctor that he should give it up. There are many reasons why the job may be precious to him. On the other hand it may be difficult in those circumstances to blame the employer for failing to recognise the problem and what might be done to solve it." 133. Paragraph 17 reflected on offering help to employees and counsels as follows: "[17] However, we do know of schemes now being developed and

encouraged which recognise and respond to the peculiar problems presented both to employees and employers. The key is to offer help on a completely confidential basis. The employee can then be encouraged to recognise the signs and seek that help without fearing its effects upon his job or prospects; the employer need not make intrusive inquiries or overreact to such problems as he does detect; responsibility for accessing the service can be left with the people who are best equipped to know what the problems are, the employee, his family and friends; and if reasonable help is offered either directly or through referral to other services, then all that reasonably could be done has been done. Obviously, not all employers have the resources to put such systems in place, but an employer who does have a system along those lines is unlikely to be found in breach of his duty of care towards his employees." 134. At paragraph 21, the Court summarised claims for psychiatric injury as falling within four different categories. The relevant category for the purposes of this judgment is category 3 which states as follows: "(3) contractual claims by primary victims - where the harm is the reasonably foreseeable product of specific breaches of a contractual duty of care towards a victim whose identity is known in advance, for example, the solicitors' clients in Cook v S[1967] 1 All ER 299,

[1967] 1 WLR 457, McLoughlin v Grovers (a firm) [2001] EWCA Civ 1743. [2001] All ER (D) 335 (Nov), or the employees in the cases of Petch, Walker and Garrett, and in all the cases before us." 135. At paragraph 22, Hatton contained an important warning: "[22] There are, therefore, no special control mechanisms applying to claims for psychiatric (or physical) injury or illness arising from the stress of doing the work which the employee is required to do. But these claims do require particular care in determination, because they give rise to some difficult issues of foreseeability and causation and, we would add, identifying a relevant breach of duty. As Simon Brown LJ pithily put it in Garrett's case: "Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability,' (See [2001] All ER (D) 202 (Mar) at [63]; my emphasis.)"" 136. We should add that we were fully alive to the warnings of Mr Heywood of the differences between stress at work and an employer being held liable for a psychiatric injury which an employer ought to have foreseen - see paragraphs 32 and 33 of the Co-op's closing skeleton which included the quotation of Simon Brown L. J. set out in the preceding paragraph of this judgment.

137. In this case, issues of both foreseeability and causation arise. In relation to the latter, the questions for the Court were what caused Mr MacLeod's psychiatric injury, including the effect of his dismissal. In relation to the question of foreseeability, we have had regard to paragraph 23 of Hatton as follows: "[23] To say that the employer has a duty of care to his employee does not tell us what he has to do (or refrain from doing) in any particular case. The issue in most if not all of these cases is whether the employer should have taken positive steps to safeguard the employee from harm - his sins are those of omission rather than commission. Mr Robert Owen QC, for the appellant defendant in Bishop's case, saw this as a question of defining the duty; Mr Ralph Lewis QC, for the appellant defendant in Jones' case, saw it as a question of setting the standard of care in order to decide whether it had been broken. Whichever is the correct analysis, the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable . The question is not whether psychiatric injury is foreseeable in a person of 'ordinary fortitude'. The employer's duty is owed to each individual employee, not to some as yet unidentified outsider (see Paris v Stepney BC [1951] 1 All ER 42, [1951] AC 367 ). The employer knows who his employee is. It may be that he knows,

as in Paris' case, or ought to know, of a particular vulnerability; but he may not . Because of the very nature of psychiatric disorder, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury. Shylock could not say of a mental disorder, 'If you prick us, do we not bleed?' But it may be easier to foresee in a known individual than it is in the population at large . The principle is the same as in other cases where there is a contractual duty of care, such as solicitors' negligence (see Cook v S, McLoughlin v Grovers)." [emphasis added] 138. The Court summarised the test at paragraph 25 as follows: "[25] All of this points to there being a single test - whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components - (1) an injury to health; which (2) is attributable to stress at work. The answer to the foreseeability question will therefore depend upon the interrelationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him . As was said in McLoughlin v Grovers, expert evidence may be helpful although it can never be determinative of what a reasonable employer should have foreseen. A

number of factors are likely to be relevant." [emphasis added] 139. We also found paragraph 26 a helpful commentary on the applicable test:- "[26] These include the nature and extent of the work being done by the employee. Employers should be more alert to picking up signs from an employee who is being overworked in an intellectually or emotionally demanding job than from an employee whose workload is no more than normal for the job or whose job is not particularly demanding for him or her. It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable . Also relevant is whether there are signs that others doing the same work are under harmful levels of stress. There may be others who have already suffered injury to their health arising from their work. Or there may be an abnormal level of sickness and absence amongst others at the same grade or in the same department." [emphasis added] 140. At paragraph 27, Hatton drew a distinction between signs of stress and signs of impending harm. This led to the consideration of the responsibilities of an employer to an employee who had had a mental breakdown which was not foreseeable. This led to this observation at the conclusion of paragraph 27: "If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental or physical health, then the employer will have to think what can be done about it." 141. Paragraph 29 is pertinent and explores what a reasonable employer should make of information available to him about an employee.

142. The next section of the judgment starting at paragraph 32 under the heading ' Breach of Duty ' explored what it was reasonable to expect an employer to do. Having noted that the employer's duty was to take reasonable care, the Court of Appeal stated: "[32].... What is reasonable depends, as we all know, upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk (see the oft-quoted summary of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783)." 143. As set out at paragraph 125 above, the summary of Swanwick J was the one cited with approval by the House of Lords.

144. Paragraph 33 of Hatton contained the following warnings: "[33] It is essential, therefore, once the risk of harm to health from stresses in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty . There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that that breach of duty caused the harm). But in every case it is necessary to consider what the employer not only could but should have done . ....." [emphasis added] 145. The same paragraph continued as follows:- "But in all of these suggestions it will be necessary to consider how reasonable it is to expect the employer to do this, either in general or in particular - the size and scope of its operation will be relevant to this, as will its resources, whether in the public or private sector, and the other demands placed upon it. Among those other demands are the interests of other employees in the workplace. It may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others. As we have already said, an employer who tries to balance all these interests by offering confidential help to employees who fear that they may be suffering

harmful levels of stress is unlikely to be found in breach of duty - except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear ." [emphasis added] 146. Paragraph 34 is also interesting and is worth setting out in full: "[34] Moreover, the employer can only reasonably be expected to take steps which are likely to do some good . This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employer's own good. As Devlin LJ put it in Withers v Perry Chain Co Ltd [1961] 3 All ER 676 at 680, [1961]1 WLR 1314 at 1320 - "The relationship between employer and employee is not that of schoolmaster and pupil ... The employee is free to decide for herself what risks she will run ... if the common law were to be otherwise it would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him." Taken to its logical conclusion,

of course, this would justify employers in perpetuating the most unsafe practices (not alleged in that case) on the basis that the employee can always leave. But we are not here concerned with physical dangers - we have already rejected the concept of an unsafe occupation for this purpose. If there is no alternative solution, it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable." [emphasis added] 147. Hatton then continued by exploring the question of causation. Paragraph 35 commences with the following: "[35] Having shown a breach of duty, it is still necessary to show that the particular breach of duty found caused the harm." 148. The same paragraph also contained the following: " However, the employee does not have to show that the breach of duty was the whole cause of his ill-health: it is enough to show that it made a material contribution (see Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615, [1956] AC 613 )." 149. The next section deals with apportionment and quantification which does not arise in the present case.

150. The analysis in Hatton then led to a summary at paragraph 43 where the Court set out a number of practical propositions as follows: "(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (see [22], above). The ordinary principles of employer's liability apply (see [20], above). (2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (see [23], above); this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from d other factors) (see [25], above). (3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (see [23], above). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (see [29], above) . (4) The test is the same whatever the employment - there are no occupations which should be regarded as intrinsically dangerous to mental health (see [24], above). (5) Factors

likely to be relevant in answering the threshold question include - (a) The nature and extent of the work done by the employee (see [26], above). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? (b) Signs from the employee of impending harm to health (see [27]. [28], above). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others? (6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching inquiries of the employee or seek permission to make further inquiries of his medical advisers (see [29], above) . (7) To trigger a duty to take steps, the indications of

impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (see [31], above). (8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (see [32], above). (9) The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of a duties (see [33], above). (10) An employer can only reasonably be expected to take steps which are likely to do some good - the court is likely to need expert evidence on this (see [34], above). (11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (see [17], [33], above). (12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job (see [34], above) . (13) In all cases, therefore, it is

necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (see [33], above). (14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (see [35], above). (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (see [36], [39], above). (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event (see [42], above). We will now apply these principles to the facts of the four cases before us. For convenience we are including only a brief summary of the individual cases in the main body of this judgment. They are given more extensive treatment in the appendix." [emphasis added] 151. We address later in this judgment how we have applied this guidance.

152. Unsurprisingly, there are a number of cases subsequent to Hatton . These cases were explored by the English Court of Appeal in Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 (" Yapp "), where Lord Justice Underhill gave the main judgment. The case concerned the dismissal of a foreign office employee and was summarised at paragraphs 1 to 3 of the judgment as follows: "1. In January 2007, the Claimant in these proceedings, the Respondent before us, was appointed British High Commissioner in Belize. He took up his post in August that year. On 13 June 2008 he was withdrawn from that post on "operational" grounds with immediate effect and suspended pending investigation of allegations of misconduct. The Foreign and Commonwealth Office ("FCO")'s disciplinary procedures were implemented; some, though not all, of the allegations against him were found to have been established, and he received a written warning. His suspension was lifted but he had developed a depressive illness, and also had to undergo heart surgery, and he did not in fact receive any other appointment in the FCO until his retirement when he reached the age of 60 in January 2011.

2. On 16 May 2011, the Claimant commenced proceedings against the FCO complaining both of his withdrawal from the post of High Commissioner and of the way in which the disciplinary process was conducted and its outcome. He said that the resulting stress had caused his depressive illness, which both constituted damage in itself and led, on account of his inability to return to work, to pecuniary loss over and above the loss of his enhanced earnings and allowances as High Commissioner.

3. The issue of liability was tried by Cranston J over a number of days in February and March 2013. By a judgment handed down on 3 May 2013 he found that the withdrawal of the Claimant from his post was both a breach of contract and a breach of the duty of care which the FCO owed him at common law; but he dismissed the claims relating to the disciplinary process." 153. The judgment in Yapp at paragraph 84, in considering whether claims for damages in contract and in tort were too remote, stated the following: "It was accepted that the essential question in contract is whether the damage in question was of a kind which was "not unlikely" to result" and that in tort it is whether the damage was reasonably foreseeable; and that the former test requires a higher degree of likelihood of damage occurring than the latter." 154. At paragraph 85, the Court noted another decision of the Court of Appeal in Attia v British Gas Plc [1988] QB 304 where the Court recorded the following: "85. We were, however, referred by Ms McNeill to the decision of this Court in Attia v British Gas plc [1988] QB 304 , as a statement of the correct approach to the question of the foreseeability of psychiatric illness in claims brought in tort. In that case the plaintiff suffered a psychiatric illness as a result of seeing her house seriously damaged by a fire caused by the defendant's negligence. One of

the issues was whether such a reaction was reasonably foreseeable. As to that, Dillon LJ said, at p. 312 F-H - "Whether it was reasonably foreseeable to the reasonable man - whether a reasonable onlooker, or, in the context of the present case, a reasonable gas fitter employed by the defendants to work in the plaintiff's house - is to be decided, not on the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect in a person of normal disposition or customary phlegm, but by the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, treating himself as the reasonable man, and forming his own view from the primary facts as to whether the chain of cause and effect was reasonably foreseeable - see per Lord Bridge in McLoughlin v. O'Brian [1983] 1 AC 410 , 432C-D. The good sense of the judge is, it would seem, to be enlightened by progressive awareness of mental illness - per Lord Bridge at p. 443D." .... "So the question in any case such as this, applying the ordinary test of remoteness in tort, is whether the defendant should reasonably have contemplated psychiatric damage to the plaintiff as a real, even if unlikely, result of careless conduct on his part."" [emphasis added] 155. The judgment then referred to a number of cases, one of which concerned claims for damages for psychiatric illness, which were reviewed.

156. One of the cases referred to was the decision of Gogay v Hertfordshire County Council [2000] IRLR 703 (" Gogay " ). Mr MacLeod, in his opening Skeleton, relied on Gogay by analogy as being another example of a claim based on exceptional acts of unfairness as distinct from cases which arose from being part of the normal pressures of the job. The Defendant regarded Gogay as a decision based on its own unusual facts which did not add anything to the overall approach to be taken.

157. The facts of Gogay were summarised at paragraph 89 of Yapp as follows: "89. In Gogay v Hertfordshire County Council [2000] IRLR 703 the claimant was a care worker in a council children's home who was suspended and made the subject of a disciplinary investigation following an allegation that she had sexually abused one of the children in the home. There were no reasonable grounds for allegation or the suspension. She developed a depressive illness in consequence. In the County Court the council was held liable for breach of contract, on the basis that the claimant's unjustified suspension was a breach of the Malik term - no breach of the common law duty of care was alleged. At a subsequent remedy hearing she was awarded damages for personal injury, i.e. her psychiatric illness, and for the loss of earnings which she had suffered in consequence." 158. Paragraph 90 then contained the following extract in relation to quantum: "As regards damages, the council argued that the Judge's decision was contrary to the principle, originating in Addis v Gramophone Co. Ltd. [1909] AC 488 and more recently enunciated in Bliss v South East Thames Regional Health Authority [1985] IRLR 308, that an employee cannot recover damages for distress or injured feelings arising from a breach of contract on the part of the employer. Hale LJ held that cases of that kind must be distinguished from cases involving a recognised psychiatric illness and that psychiatric injury was not in principle different from physical injury - ..." 159. Advocate O'Connell relied on this distinction in support of Mr MacLeod's claim.

160. Lord Justice Underhill in Yapp recognised this possibility in his conclusion at paragraph 91 as follows: "91. Gogay is thus clear authority for the proposition that there is no bar in principle to an employee recovering damages for psychiatric injury caused by a breach of the Malik term. It is accordingly a complete answer to Mr Platt's submission (see para. 80 above) that such damages are irrecoverable in principle." 161. It is also important to note that the decision in Gogay was prior to the decisions of the House of Lords in Johnson v Unisys [2003] 1 AC 518 ("Johnson") and Eastwood v Magnox Electric [2005] 1 AC 503 (" Eastwood "). We discuss these cases in the second part of this judgment dealing with applicable legal principles. At this stage we simply note that in Eastwood , Lord Steyn noted at page 532 that the decision of the Court of Appeal in Gogay sat " uneasily with Johnson ".

162. Lord Justice Underhill in Yapp then considered Hatton and at paragraph 99 made the following points: "(1) As a matter of formal analysis, the issues which were before the Court were only concerned with liability. The Court was concerned with the foreseeability of psychiatric injury in the context of whether a duty arose to take steps to protect an employee from such injury; and remoteness of damage was not discussed at all. But, at the risk of spelling out the obvious, the test of foreseeability in that context must be the same when it comes to damages - if the risk of psychiatric injury is sufficiently foreseeable to require reasonable steps to be taken to mitigate it. It must also be sufficiently foreseeable to require compensation if it arises. Bingham LJ made this point in Attia (see at p. 319 D- E). (2) Ms McNeill is clearly right to say that the factual context in which the Court was considering foreseeability was that of employees who became ill as a result of what is referred to in proposition (3) as "the normal pressures of the job". It was not concerned as such with the foreseeability of an employee suffering a psychiatric illness as a result of a particular traumatic event in the workplace. However, as discussed below, the case-law has moved on in that respect. (3) The Court in Hatton throughout uses the language of tort. But it was certainly aware that the duty

of care in question arose in contract as well. At para. 21 it identified various different categories of cases giving rise to claims of psychiatric injury - the third category is described as "contractual claims by primary victims" and it is said to include the claims which it was considering. together with the other reported cases of claims by employees - Petch, Walker and Garrett (see at p. 624 B-C)." 163. Having reviewed cases post Hatton , Lord Justice Underhill at paragraph 119 of Yapp set out the following summary: "119. With regard to the issues of foreseeability and remoteness the following propositions can be established from that review of the cases: (1) In considering, in the context of the common law duty of care, whether it is reasonably foreseeable that the acts or omissions of the employer may cause an employee to suffer a psychiatric injury, such an injury will not usually be foreseeable unless there were indications, of which the employer was or should have been aware, of some problem or psychological vulnerability on the part of the employee - Hatton. (2) That approach is not limited to cases of the Hatton type but extends to cases where the employer has committed a one-off act of unfairness such as the imposition of a disciplinary sanction - Croft and Deadman (also Grieves). (3) However, in neither kind of case should that be regarded as an absolute rule -

Hatton contains no more than guidance, and each case must turn on its own facts - Hatton itself, but reinforced by Barber and Hartman . (4) In claims for breach of the common law duty of care it is immaterial that the duty arises in contract as well as tort - they are in substance treated as covered by tortious rules" - Walker, Hatton, In order to establish whether the duty is broken it will be necessary to establish, as above, whether psychiatric injury was reasonably foreseeable; and if that is established no issue as to remoteness can arise when such injury eventuates. (5) In claims for breach of the Malik duty, or of any other express contractual term, the contractual test of remoteness will be applicable - Deadman." [emphasis added] 164. At paragraph 123(2), in relation to paragraph 119(3), Lord Justice Underhill emphasised the following: " Each case depends on its own facts, and in principle the employer's conduct in a particular case might be so devastating that it was foreseeable that even a person of ordinary robustness might develop a depressive illness as a result - that was the point of Ms McNeill's reference to Bingham LJ's examples in Attia (see para. 85 above). The question is whether this is such a case. I have already summarised Ms McNeill's reasons for contending that it is ." [emphasis added] 165. We consider that in the present case the Jurats have to determine whether the conduct of the Co-op was such that it was foreseeable that even a person of ordinary robustness such as Mr MacLeod might develop a depressive illness.

166. In expressing this conclusion, we have noted the warning at paragraph 125 of Yapp that it will only be in exceptional cases that " an apparently robust employee with no history of any psychiatric ill health will develop a depressive illness as a result even of a very serious setback at work ". We have applied this approach in the conclusions that the Jurats have reached.

167. Paragraph 127 is pertinent and included the following statements: "127. Against that background I have come to the conclusion that there was nothing about the circumstances of the present case sufficiently egregious to render it foreseeable that the Claimant's withdrawal from his post would cause him a psychiatric injury. ..... This was not a case of some gross and arbitrary injustice of the kind alleged, for example, in Eastwood." 168. Davis LJ in agreeing with Underhill LJ also added this observation which is pertinent to the issues we have to decide:- " 156 ... I do not think one can or should exclude the possibility, on appropriately special facts, whereby psychiatric injury resulting from a breach of duty by an employer can be assessed as reasonably foreseeable, even if there was no awareness of a prior relevant susceptibility or vulnerability on the part of the employee . Indeed Melville can be taken as such a case (where, in fact, the risk of psychiatric injury had actually been foreseen by reason of the particular nature of the employment). It may be that the examples given by Bingham LJ in Attia also suggest other possibilities. Moreover, Hale LJ in Hatton was careful in formulating the third proposition to refer to what the position "usually" is. Be that as it may, I incline to think that such cases are indeed likely to be very unusual. At all events in the

present case I do not consider, whatever sympathy one may have for the Claimant, that the summary withdrawal of the Claimant from post was a sufficiently extreme action such as, on the facts, to justify a departure from the general approach indicated in Hatton and Croft." [emphasis added] 169. On the facts, the appeal in Yapp was allowed with the English Court of Appeal holding that the Judge should have held that the losses attributable to Mr Yapp's psychiatric injury were not reasonably foreseeable and could not accordingly found a claim for breach of the common law duty of care. The claims were also held to be too remote to be recoverable in the claim for breach of contract.

170. It is only therefore if the Jurats find as a matter of fact that Mr MacLeod's claim and the conduct he complained of reached the sort of threshold described by Lord Justice Underhill in paragraphs 123 and 127 and by Lord Justice Davis in paragraph 156 and the extracts we have cited, can his claim succeed.

171. While we were referred to other authorities, in our judgment they did not add anything to the guidance in Hatton and the subsequent analysis of Lord Justice Underhill in Yapp and accordingly these are the principles we have applied. When an employee can claim damages arising from the fact or manner of that employee's dismissal 172. We next turn to consider the question of how far an employee can claim damages arising from the fact or manner of that employee's dismissal.

173. As noted above, this was considered in Johnson by the House of Lords where the majority dismissed a claim by an employee for damages based on the manner in which the employee had been dismissed.

174. The headnote of the House of Lords' judgment states as follows: "Held, dismissing the appeal, that ( per Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Millett) under Part X of the Employment Rights Act 1996 Parliament had provided the employee with a limited remedy for the conduct of which he complained; that, although it was possible to conceive of an implied term which the common law could develop to allow an employee to recover damages for loss arising from the manner of his dismissal, it would be an improper exercise of the judicial function for the House to take such a step in the light of the evident intention of Parliament that such claims should be heard by specialist tribunals and the remedy restricted in application and extent; that ( per Lord Steyn), although the employee had a reasonable cause of action based on a breach of the implied obligation of trust and confidence, he had no realistic prospect of overcoming the obstacle of remoteness of damage; and that, accordingly, the employee's action had been correctly struck out." 175. Lord Nicholls stated at page 526: "Having heard full argument on the point, I am persuaded that a common law right embracing the manner in which an employee is dismissed cannot satisfactorily coexist with the statutory right not to be unfairly dismissed. A newly developed common law right of

this nature, covering the same ground as the statutory right, would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limits for making claims. It would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals, not the ordinary courts of law." 176. The main judgment of the majority was given by Lord Hoffmann. Having noted at paragraph 36 the development of the implied term of trust and confidence, which applies to Jersey law contracts of employment just as much as it applies to English law contracts, Lord Hoffmann stated the following at paragraph 37: "37 The problem lies in extending or adapting any of these implied terms to dismissal. There are two reasons why dismissal presents special problems. The first is that any terms which the courts imply into a contract must be consistent with the express terms. Implied terms may supplement the express terms of the contract but cannot contradict them. Only Parliament may actually override what the parties have agreed. The second reason is that judges, in developing the law, must have regard to the policies expressed by Parliament in legislation. Employment law requires a balancing of the interests of employers and employees,

with proper regard not only to the individual dignity and worth of the employees but also to the general economic interest. Subject to observance of fundamental human rights, the point at which this balance should be struck is a matter for democratic decision. The development of the common law by the judges plays a subsidiary role. Their traditional function is to adapt and modernise the common law. But such developments must be consistent with legislative policy as expressed in statutes. The courts Parliament but there should be no discord." 177. Lord Hoffmann then explored the power of an employer to give notice, leading to his conclusion at paragraph 42 as follows: "My Lords, in the face of this express provision that Unisys was entitled to terminate Mr Johnson's employment on four weeks' notice without any reason, I think it is very difficult to imply a term that the company should not do so except for some good cause and after giving him a reasonable opportunity to demonstrate that no such cause existed." 178. While Lord Hoffmann then noted it was possible to develop such a power at common law, at paragraph 47 he suggested it would not necessarily be wise to do so leading to the conclusion that whether or not to develop law that way was finely balanced.

179. However, he then explored at paragraphs 54 and 55 how unfair dismissal legislation had developed in the United Kingdom, noting that Mr Johnson had a remedy for the conduct of which he was complaining, namely the manner of his dismissal. In rejecting whether the Court should develop the common law to give a parallel remedy, not subject to the financial limits imposed by the employment legislation in England and Wales, Lord Hoffmann stated the following at paragraphs 57 to 59: "57 My Lords, I do not think that it is a proper exercise of the judicial function of the House to take such a step. Judge Ansell, to whose unreserved judgment I would pay respectful tribute, went in my opinion to the heart of the matter when he said: "there is not one hint in the authorities that the . . . tens of thousands of people that appear before the tribunals can have, as it were, a possible second bite in common law and I ask myself, if this is the situation, why on earth do we have this special statutory framework? What is the point of it if it can be circumvented in this way? . . . it would mean that effectively the statutory limit on compensation for unfair dismissal would disappear." 58 I can see no answer to these questions. For the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be to go contrary to the evident intention of Parliament

that there should be such a remedy but that it should be limited in application and extent. 59 The same reason is in my opinion fatal to the claim based upon a duty of care. It is of course true that a duty of care can exist independently of the contractual relationship. But the grounds upon which I think it would be wrong to impose an implied contractual duty would make it equally wrong to achieve the same result by the imposition of a duty of care." 180. Lord Millett in his judgment, agreeing with Lord Hoffmann, was also of the view that it would not be appropriate to develop a common law right not to be unfairly dismissed on the basis of the implied term of trust and confidence (paragraph 78). Instead, he noted that the law might have developed in a different way " by imposing a more general obligation upon an employer to treat his employee fairly even in the manner of dismissal " (paragraph 79). However, like Lord Hoffmann, he rejected such an approach because of the creation of the employment tribunal and the remedy of unfair dismissal. Lord Millett put it this way at paragraph 80: "In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the

policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry, And, even more importantly, the coexistence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost." 181. In McDonald v Parish of St Helier [2005] JRC 074 (" McDonald "), Sir Michael Birt rejected an argument by Mr McDonald that the law of Jersey should develop to provide a common law remedy for unfair dismissal.

182. Sir Michael Birt rejected this approach for the reasons set out at paragraph 40 because at the time McDonald was decided, the States of Jersey had passed the Employment (Jersey) Law 2003 . As at the date of the McDonald hearing and judgment, it had not yet come into force, although it did so on 1 July 2005. He therefore followed Johnson .

183. This conclusion led Sir Michael to make the following observation at paragraph 41: "41. Does it make any difference that the Jersey legislation is not yet in force so that, for example, we do not know exactly what limits there may be upon the compensation available pursuant to the statutory remedy? We do not think so. To use Lord Nicholls' expression, the States have occupied the field. They have passed legislation in the knowledge of what the established customary law provides. As with the English legislation, the States have chosen not to provide simply for a statutory implied term against unfair dismissal, leaving the courts to award damages on the usual contractual basis. They have, as in England, decided to remove jurisdiction in such cases to a specialist tribunal, to provide very short time limits, to provide a mechanism for limiting the amount of compensation and to provide that certain employees should be excluded from any remedy. If the Court were to develop the customary law as Mr Le Quesne suggests, there would, immediately upon the coming into force of the legislation, be the inconsistency and recipe for chaos envisaged in Johnson, Indeed, were we to find for the plaintiff and were the Parish to appeal, it seems probable that the Court of Appeal would have to deal with a position where the statute was in force and it was having to decide whether to develop the

customary law in a manner inconsistent with that legislation." 184. This Court is bound by that decision unless it considers it plainly wrong. However, the matter was fully argued and neither counsel in the present case sought to suggest otherwise. Instead, Advocate O'Connell for Mr MacLeod sought to contend that the rule in Johnson as applied in Jersey by McDonald , did not apply because the Co-op had already caused damage to Mr MacLeod (which he contended was foreseeable). The position of the Co-op through Advocate Heywood was that it was ultimately the dismissal that caused the harm that Mr MacLeod was now suffering from. The issue this Court faces is therefore to determine what caused Mr MacLeod's psychological harm, was it foreseeable, and if it was foreseeable, what was the extent of his injury when he was dismissed and how far his current injuries were caused by his dismissal or any pre-dismissal conduct?

185. The challenge of drawing such distinctions was explored in Eastwood . The Eastwood decision concerned two appeals brought to the Privy Council. The facts of both appeals are pertinent and are set out in the headnote as follows: "In the first case, the claimant employees sought damages for stress-related illness and inability to work alleged to have been caused by a campaign on the part of the defendant employer to demoralise the claimants before dismissing them, in breach of an implied term of their contracts of employment not to so conduct itself as to destroy or seriously damage their mutual trust and confidence and/or breach of duty of care. The judge, on a preliminary issue, gave judgment for the defendant on the ground that the claimants had no real prospect of succeeding on their claim. In the second case, the claimant, having obtained the statutory maximum compensation for unfair dismissal, sought damages for psychiatric injury caused by the defendant employers' suspension of him and failure during the next five months to inform him of allegations made against him or to carry out a proper investigation of those allegations, in breach of the relationship of trust and confidence and breach of duty to provide a safe system of work. The judge struck out the claim on the ground that the principle of entitlement to recover at common law for injury caused by the manner of

disciplinary proceedings had no application where dismissal in fact followed and that the claimant's industrial tribunal proceedings had covered the substance of the claim. Differently constituted Courts of Appeal dismissed an appeal by the claimants in the first case and allowed an appeal by the claimant in the second case." 186. The House of Lords allowed the appeal in the first case and dismissed it in the second. The headnote states: ".... although it would be desirable if the implied obligation on an employer at common law to act fairly towards his employee applied to a decision to dismiss him, such a development could not co-exist satisfactorily with the statutory code regarding unfair dismissal; that, however, where an employee had, prior to his unfair dismissal, whether actual or constructive, acquired a common law cause of action against his employer in respect of the employer's failure to act fairly towards him, and financial loss had flowed directly from that failure, he could, subject to the rule against double recovery, bring an action at law in respect of that loss and such action was not barred by the availability of a claim in the employment tribunal under the unfair dismissal legislation; and that in the claimants' cases the assumed facts constituted causes of action that had accrued before their dismissals and those causes of action should be permitted to

proceed to trial..." 187. The leading judgment was given by Lord Nicholls who reviewed Johnson . He firstly stated the following at paragraph 11: "11 ... The trust and confidence implied term means, in short, that an employer must treat his employees fairly. In his conduct of his business, and in his treatment of his employees, an employer must act responsibly and in good faith. In principle, this obligation should apply as much when an employer exercises his right to dismiss as it does to his exercise of other powers of his which affect a subsisting employment relationship. It makes little sense, for instance, that the implied obligation to act fairly should apply when an employer is considering whether to suspend an employee but not when the employer is proposing to take the more drastic step of dismissing him. Considerations of this nature suggest that the natural, continuing development of this aspect of the common law should be that the implied obligation to act fairly applies to dismissal decisions. This would mean that if an employee were treated today in the same shameful way as Mr Addis he would have a remedy at common law for breach of contract." 188. However, he repeated the conclusion reached in Johnson that development of the common law along the lines of employers having to treat employees fairly, including in relation to dismissal: "... cannot

co-exist satisfactorily with the statutory code regarding unfair dismissal. A common law obligation having the effect that an employer will not dismiss an employee in an unfair way would be much more than a major development of the common law of this country. Crucially, it would cover the same ground as the statutory right not to be dismissed unfairly, and it would do so in a manner inconsistent with the statutory provisions. In the statutory code Parliament has addressed the highly sensitive and controversial issue of what compensation should be paid to employees who are dismissed unfairly." 189. At paragraph 15, Lord Nicholls then noted that the decision in Johnson had given rise to " demarcation and other problems ". He described the problem in this way: "Dismissal is normally the culmination of a process. Events leading up to a dismissal decision take place during the subsistence of an employment relationship. If an implied term to act fairly, or a term to that effect, applies to events leading up to dismissal but not to dismissal itself unsatisfactory results become inevitable." 190. Starting at paragraph 27, he then explored where the line might be drawn between unfair dismissal and causes of action that had arisen prior to dismissal. At paragraph 27, he stated as follows: "27 Identifying the boundary of the "Johnson exclusion area", as it has been called,

is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee's remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal." 191. His analysis continued at paragraphs 28 and 29: "28 In the ordinary course, suspension apart, an employer's failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area. 29 Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employer's failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre-dismissal unfair treatment . In

such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over." [emphasis added] 192. In paragraph 31, he observed as follows: "31 Second, the existence of this boundary line means that in some cases a continuing course of conduct, typically a disciplinary process followed by dismissal, may have to be chopped artificially into separate pieces. In cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches of the trust and confidence term and loss flowing from the employee's acceptance of these breaches as a repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area. In some cases this legalistic distinction may give rise to difficult questions of causation in cases such as those now before the House, where financial loss is claimed as the consequence of psychiatric illness said to have been brought on by the employer's conduct before the employee was dismissed. Judges and tribunals,

faced perhaps with conflicting medical evidence, may have to decide whether the fact of dismissal was really the last straw which proved too much for the employee, or whether the onset of the illness occurred even before he was dismissed ." [emphasis added] 193. The present case in our view gives rise to exactly the sort of difficult questions of causation that the House of Lords recognised in Eastwood could arise. We have noted in particular the views of the House of Lords that judges (in this jurisdiction, Jurats) may have to decide whether the fact of dismissal was the last straw or if the onset of the illness occurred even before he was dismissed.

194. In the present case, while it is common ground that Mr MacLeod's illness occurred before he was dismissed, that is where the contentions of the parties diverge. The present case is not necessarily a last straw case. It also involves consideration of what caused Mr MacLeod's illness, and the extent of his illness at the time he was dismissed.

195. On the facts, the appeal of Mr Eastwood was allowed, with the House of Lords accepting that the assumed facts constituted a cause of action which had accrued before the dismissal and therefore should proceed to trial.

196. Lord Steyn also made the following observation on the difficulties of demarcation in paragraph 39 as follows: "On the other hand if before dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action survives his subsequent unfair dismissal - see the lucid analysis of Lady Smith in King v University Court of the University of St Andrews [2002] IRLR 252 . This dichotomy will often give rise to questions whether earlier events do or do not form part of the dismissal process, After all, such problems in relationships between an employer and an employee will often arise because of a continuing course of conduct. In practice this will inevitably lead to curious distinctions and artificial results. It will involve case by case decision-making rather than principled adjudication. The outcome of litigation will be very unpredictable. This policy aspect of the consequences of the reasoning of the majority in Johnson was not considered by the House in that case. But the present appeals illustrated the type of difficulties and uncertainties inherent in the legalism which prevailed in Johnson. This is relevant because the way in which a rule or principle operates in the real world is one of the surest tests of its soundness." 197. As noted above, these remarks led Lord Steyn to observe that the decision in Gogay did not sit easily with Johnson . He then reviewed Johnson and call for a re-examination of the applicable financial caps on unfair dismissal.

198. We add in that regard that in this jurisdiction the financial caps are different to those that apply in England and Wales. However, like in England and Wales, they come nowhere near meeting the sort of damages that Mr MacLeod seeks to recover.

199. The decision in Eastwood was also approved in McDonald by Sir Michael at paragraph 31 where he stated the following: "The House of Lords reiterated that, following Johnson, there was no common law remedy for unfair dismissal. However, Johnson did not prevent recovery for a cause of action acquired before dismissal. Although in the ordinary course, an employer's failure to act fairly in the steps leading to dismissal did not of itself cause the employee financial loss because the loss arose when the employee was dismissed and arose by reason of the dismissal, there might exceptionally be cases where financial loss flowed directly from the employer's failure to act fairly when taking steps leading to dismissal e.g. where an employee suffered financial loss from psychiatric or other illness caused by his pre-dismissal unfair treatment." 200. Again, this Court is bound by that decision and no party sought to contend otherwise. Rather the issue was where the demarcation line is to be drawn.

201. While we were referred to other authorities, the other authority we considered relevant is a decision of the Supreme Court in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 . In this case, the Supreme Court comprising seven Supreme Court Justices (as distinct from the normal five) maintained the approaches in Johnson and Eastwood (Baroness Hale dissenting). Lord Dyson, at paragraph 40, stated the following: "40 The unfair dismissal legislation precludes a claim for damages for breach of contract in relation to the manner of a dismissal, whether the claim is formulated as a claim for breach of an implied term or as a claim for breach of an express term which regulates disciplinary procedures leading to a dismissal. Parliament has made certain policy choices as to the circumstances in which and the conditions subject to which an employee may be compensated for unfair dismissal. A dismissal may be unfair because it is substantively unfair to dismiss the employee in the circumstances of the case and/or because the manner in which the dismissal was effected was unfair. The manner may be unfair because it was done in a humiliating manner or because the procedure adopted was unfair, inter alia, because the agreed disciplinary procedure which led to the dismissal was not followed. It may be unfair because defamatory findings were made which damage the

employee's reputation and which, following a dismissal, make it difficult for the employee to find further employment. Any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal subject to the various constraints to which I have referred. Parliament did not intend that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament for the exercise of this statutory jurisdiction." 202. Mr Edwards sought to argue that he could claim damages for loss of reputation consequent on findings of misconduct made by the disciplinary panel based on the fact that the panel was said not to be properly constituted and had acted in a manner which was procedurally unfair. Mr Edwards alleged that these breaches occurred independently of the subsequent dismissal.

203. The majority were not persuaded by this argument. Lord Dyson stated the following at paragraph 57: "57 In these circumstances, Mr Edwards's claim for damages for loss of reputation is not one of those exceptional cases to which Lord Nicholls referred in Eastwood's case [2005] I AC 503 where an employer's failure to act fairly in the steps leading to a dismissal causes the employee financial loss. This claim does not arise from anything that was said or done before the dismissal. It is not independent of the dismissal. It arises from what was said by the trust as part of the dismissal process. It follows that I cannot accept the distinction made by Lord Kerr and Lord Wilson JJSC between the findings or reasons for the dismissal and the dismissal itself. I agree with what Lord Mance JSC says about that." 204. Lord Mance, at paragraph 94, stated the following: "But, in the absence of express contrary agreement, the Johnson exclusion area must be taken to cover both loss arising from dismissal and financial loss arising from failures in the steps leading to such dismissal, unless the loss claimed can be regarded as occurring quite independently of the dismissal, as the psychiatric loss claimed by the claimants in the Eastwood cases could be ." [emphasis added] 205. He also stated the following at paragraphs 102 and 104 in rejecting a distinction between a claim based on

failing to follow the correct investigatory process (which could not give rise to damages for dismissal other than damages in lieu of notice), and a claim for damages in respect of financial loss caused by the reasons given for the dismissal: "102 I am unable to agree with this suggested distinction. The reasons given were part and parcel of the dismissal. The reasons would be very relevant to a claim for unfair dismissal, as Lord Dyson JSC explains in para 40. But they fall to be dealt with in that context, rather than by a claim for damages (at least in the absence of actionable defamation). The contrary approach advocated by Lord Kerr JSC would outflank both the rule in Addis v Gramophone Co Ltd [1909] AC 488 , set out by Lord Dyson JSC in para 20, and the Johnson exclusion as explained in Johnson y Unisys Ltd [2003] I AC 518 itself and in Eastwood y Magnox Electric plc [2005] I AC 503, as well in paras 90-93 above. Bearing in mind the modern prevalence of disciplinary procedures (required under section 3(1) of the Employment Rights Act 1996 to be noted in any employee's written statement of particulars of employment), it could also make commonplace what Lord Nicholls of Birkenhead identified in Eastwood, at para 29, as exceptional. .... 104 As Lord Nicholls made clear in Eastwood [2005] I AC 503, para 32, the applicability of the Johnson exclusion and so the recoverability

of loss may depend upon whether an employer dismisses the employee, as opposed (for example) to simply suspending him. The fact of dismissal can make all the difference. Here, whatever the correct disciplinary process may or should have been, it required the employer to explain the reasons if dismissal was the outcome. When applying the Johnson exclusion, the dismissal and the reasons accompanying it cannot be distinguished in the manner proposed. If there was a failure in the disciplinary process, it led to both, and, if the law is to be coherent, both must fall within the Johnson exclusion." 206. We have referred to these passages because they illustrate the difficulty in drawing the demarcation line contemplated by Eastwood . We address the applicability of these principles to where we have concluded the line should be drawn in the present case. Key events 207. We next set out a chronology of key events. These are taken mainly from the documents provided to us and in part from witness statements. We do so to set in context the findings we were asked to make by both parties and our conclusions on the specific evidence of the factual and expert witnesses. 2010 - 2017 208. In 2010, Mr MacLeod became chief executive.

209. In 2011, Ms Champion was elected to the Board of the Co-op.

210. In March 2014, Peter Bruges was dismissed summarily by Mr MacLeod without discussing it with the Board of the Co-op.

211. In 2015, Mr MacLeod produced a report entitled " Framing a Strategic Discussion " on the subject of succession planning. This included the following statements: "Average CEO Tenure across the world has reduced from 15 to 6 years in the last 16 years. ..... Executive Team · There have been two external appointments onto the Executive Team within the past 4 years. · Areas of Concern - Chief Commercial Officer role. This risk would be mitigated with a review of structure that could result in this role no longer existing. This will assist in creating alignment and delivering results in other areas of the business whilst the COO is available to mentor. · All Executives will remain on 3 months' notice. In my view, this is an unacceptable risk and should be addresses. The Society · It is some time since we had succession planning as a formal Board discussion topic. · Although the current CEO has no plans to leave, the revised structure gives us opportunity to play a longer game. · We should also factor in unplanned departure and consider a 'hit by the bus scenario so that the Board at least has the views of the current CEO if they are presented with this situation. · However, 3 of the current 6 Executive Team if they decide to leave/ retire at 60." 212. Also in 2015, the initial terms of reference of RemCo at paragraph 1.1 defined its purpose as being: "To monitor and review the

Society's arrangements with regard to resourcing and talent management, including - ( i ) recruitment, retention, succession planning; and (ii) remuneration, motivation, recognition and reward." 213. These obligations were expanded upon in Part 2: "2.1 Resourcing and Talent Management Policy The Committee shall monitor and review the Society's Resourcing and Talent Management Policy. This will ensure that the Policy facilitates the development and maintenance of a sustainable organisational structure capable of supporting the Society's Business Plans and Strategic Vision, in accordance with Co-operative Values. 2.2 Remuneration Policy The Committee shall monitor and review the Society's Remuneration Policy, including the policy relating to pension provision, to ensure that the Society's remuneration is sufficient to attract, motivate and retain directors, executive management and colleagues of the appropriate calibre, whilst not being excessive." (i) Clause 2.3( i ) stated the following: "The Society's Board as a whole shall be solely responsible for the appointment or termination of the Chief Executive Officer, the Chief Financial Officer and the Company Secretary, including their terms of service, remuneration, pension entitlement, benefits-in-kind, and any commitments made to them on retirement or termination." (ii) Clause 2.3(ii) stated the following: "The Board as a whole shall be solely responsible for establishing and monitoring the operation of an Expenses Policy and claims for the Chief Executive Officer and the Company Secretary." (iii) Clause 8 contained obligations to produce minutes of meetings.

214. Ms Williams joined the Board in May 2016.

215. On 1 August 2016, the Co-op carried out a benchmarking and job evaluation process for the Executive Management Team including Mr MacLeod.

216. Ms Carnegie joined the Board on 5 March 2018 as a co-opted non-executive director.

217. Mr MacLeod was appraised by Mr Shenton and Ms Champion on Sunday 15 April 2018 following a Board meeting ( CaseLines reference J671).

218. In preparation for her becoming chair of RemCo , Ms Carnegie on 19 July emailed Ms Donna Abel, the then-head of human resources, with a series of questions to understand the current position of RemCo . Ms Abel replied the following day with certain answers, with some information to follow later. We have referred to this because it was the only document in the bundle showing RemCo requesting information and the responses received.

219. On 8 August 2018, Ms Carnegie was appointed as chair of RemCo .

220. At a team meeting of RemCo held on 8 August 2018, the RemCo committee resolved (i) to broaden its terms of reference to include "organisational design" and "expenses policy". (ii) The same meeting explored the remit of RemCo in relation to talent management, leading to the following conclusion: "It was agreed that the Committee should propose a policy statement clarifying the talent management matters that should require the Board's (or the Committee's) prior approval, to ensure that they are consistent with the Resourcing and Talent Management Policy generally, such as the appointment of or removal of an SMT member, the creation of new senior roles, change of management structure or the payment of any bonuses to employees at any level within the Society." (iii) Remco identified five matters as requiring its attention: (a) Terms of reference and remit; (b) Remuneration, in particular performance related pay and the Co-op's long-term investment plan; (c) Cultural morale; (d) Succession; (e) Policy.

221. On 13 August 2018, a WhatsApp group ("the First WhatsApp Group") was created between Ms Carnegie, Ms Champion, Ms Williams and the fourth then-member of RemCo , Sue Ryde, ("Ms Ryde"). These messages were disclosed by Ms Williams following orders for additional discovery made by the Commissioner in 2024. Ms Carnegie and Ms Champion had not kept copies. There were extensive messages between the members of this group and we have cited the ones we regard as pertinent so that it can be seen what the members were saying contemporaneous to events that were taking place and other documents recording those events.

222. On 14 August, Ms Carnegie sent the following message: "[14/08/2018, 12:42:13] Jennifer Carneige - Great stuff. Thank you ladies. I met with Ben yesterday and took him through (in big handfuls) the conversation we had last week and stressed the need for action sooner rather than later. He agrees and would like us, over the next couple of weeks to write down any evidence we currently have/can get, before we take it to the Board and/or approach the parties concerned. I think this is probably most easily done by collating what you have on each individual rather than topic area . Is that something you can each do please? Should I ask Jennie to do the same following her work on the Remco? I am happy to have a chat with her about it ( without exposing all our thinking at the moment ) and just get her views/experiences of dealing with the 3 in question. I can do the same with Richard if you think that worthwhile too." [emphasis added] 223. On 23 August, Mr Shenton texted Mr MacLeod asking for a confidential chat ( CaseLines J728) stating that " Some old issues have come back ".

224. This text message led to a meeting on 27 August between Mr Shenton and Mr MacLeod at Mr Shenton's office rather than the Co-op premises. Mr MacLeod, in his witness statement at paragraph 43, described this as being a " pivotal meeting " when Mr Shenton " in his own way tried to warn me that there was a powerful faction on the Board that were dictating the agenda ".

225. On 2 September 2018, a Board meeting of the Co-op took place. Following this Board meeting, (i) Mr MacLeod emailed Mr Shenton stating " Clearly much to think about following this morning's Board. I'm obviously very keen to understand where the relationship between Board and executive is coming under pressure and I will work hard to propose some steps to help bring us back to 'one team' when we meet on Friday ". (ii) Ms Henley on the same date also emailed Mr Shenton stating " It was a very impassioned discussion and... I felt as though the negative feelings from some Board members could run away with them regardless of the topic ". She also described morale as low. (iii) Ms Jennie Vibert, another Board director, commented to Mr Shenton on the following day to register her disquiet of the " aggressive attitudes that are entering our Board meetings ".

226. In the First WhatsApp Group, the following messages were exchanged on 2 September: "[02/09/2018, 12:50:07] Jennifer Carneige - Good meeting today! Well done team [02/09/2018, 17:38:08] Carol Champion: Thanks - you were great! We certainly made them squirm- shame you couldn't see the body language! [02/09/2018, 17:51:50] Sue Ryde - I thought I'd done the God meeting! I hope some actions were agreed. The message must be clear that its action not words that's needed from the Exec. Was Ben ok by the end? Catch up soon. Sue [02/09/2018, 17:59:43] Paula Williams - It was good to finally be able to start tackling key issues. We need to keep on it and make sure things get sorted. Great to see Ben pushing for action. Paula [02/09/2018, 21:05:11] Jennifer Carneige - I thought Ben did really well today. He was asking for accountability. We don't have it yet but we will get there. He came well prepared I think. The Board came together really well I thought. There is definite alignment between us and a growing confidence I think." 227. Later the same day, Ms Champion sent a text as follows: "[02/09/2018, 21:36:22] Carol Champion - On another note Gary Vaudin from our Funeral Gsy business wishes he never sold to the Co-op. He is happy to share, warts and all, the problems he is experiencing with the triangle. I will arrange an appointment with him for Paula and I, if you want to come along too Sue (and Jennifer ) that would be fab." 228. On 16 October, Ms Carnegie emailed Mr MacLeod about an injury his son had suffered. Similar emails were sent by Sue Ryde and Ms Williams.

229. On 17 October 2018, Mr MacLeod circulated an email to the Board, copied to the Executive Management Team and other employees entitled " Background information for Board strategy review ". We refer to the following extract which set out what was being discussed and the approach being taken: "I attach as promised some background information in advance of our time together on Saturday.

1. Report on Strategic Progress - What has gone well, and not so well in 2018 2. BU Horizon Scans - The operating Context 3. Business Unit & Functional SOAPS (Strategies on a Page) 4. Current Prioritised Projects We have yet to complete the full prioritisation exercise - but will do so pre budget, but I did promise to share the assessment criteria we are applying. So, under the heading 'Strategic Fit', we have or are viewing each project through six lenses. Namely: a. > 8% Three year Rol b. Margin Contribution - Closing the gap to 2% c. Impact if not done - Risks or Costs d. Fit to Winning Ambition - Preferred, Trusted, Engaged e. Fit to Values - CSR, Community etc f. Brand - Unique & Differentiated Value." 230. By reference to the WhatsApp messages, there was an informal meeting between Ms Carnegie, Ms Champion and Ms Williams, following a lunch with Mr Shenton. There were no messages or any other documents recording what was discussed.

231. On 24 October, Mr MacLeod circulated a report entitled " CEO perspective on executive succession ".

232. On 22 November at 21.33, Ms Carnegie emailed the first WhatsApp group asking " Were you aware that Colin gets a Board fee to sit on the Board? I was very surprised by that ".

233. On 4 January 2019, there was an exchange of WhatsApp messages about the recruitment of a replacement chief human resources officer for the Co-op.

234. On 15 January 2019, a RemCo meeting took place in Guernsey. There were no minutes of this meeting.

235. On 21 and 23 January 2019, there were more WhatsApp messages from Ms Carnegie about the recruitment of the chief human resources officer with Ms Carnegie asking an external third party to look at all nine shortlisted candidates.

236. There were further messages in January 2019 on the same topic. This included the following observation from Ms Champion, sent on 31 March at 2019: "I also can tell [Mr MacLeod] has no idea what he's looking for and will make the job fit for someone [Mr MacLeod] wants it to fit- hence the lack of job specs etc. Just another car crash waiting to happen!" 237. Ms Henley resigned at the beginning of February as a director for personal reasons.

238. On 7 February, Ms Carnegie reported that she had had a conversation with the chairman of Southern Co-op leading her to state: "That business is more than double the size of ours in terms of revenue. More than 200 stores. The CEO has just had a pay rise to £274k." 239. This led her to make the comment: "[07/02/2019, 12:37:35] Jennifer Carneige - Given that our CEO is on significantly more than that, something feels a bit out of whack." 240. On 8 February, Ms Champion responded as follows: "[08/02/2019, 07:55:42] Carol Champion - Perfect - this could be the extra support we need to change things . Did you get more information on what they are doing? Have you received any reports paperwork from Colin for our REMCO day a week on Sunday?" [emphasis added] 241. On 17 February 2019, there was a further Board meeting of the Co-op.

242. After this meeting, Ms Ryde messaged the first WhatsApp group, stating the following: "We need to pin down the evidence and move forward .... not an easy task but very necessary as has been demonstrated today." 243. This led Ms Carnegie to reply on 21 February: "[21/02/2019, 16:34:40] Jennifer Carneige - Hi there. I've just had a chat with Richard LT and he is going to ask Gavin to prioritize the audit into Expenses. I have asked him to include remuneration, in particular PRP and car payments, as part of that." 244. Richard LT is Mr Le Tocq who was a director of the Co-op until 30 June 2019 and was the then chair of the Audit and Risk Committee.

245. Following the Board meeting on 17 February, Mr MacLeod took a week off work. His witness statement at paragraph 89 described this as unscheduled and that he was unwell.

246. On 22 March, Mr Gavin Udall, head of internal audit, emailed Mr Rees in relation to the executive expenses internal audit draft report and stated the following: "Hello David, Thank you for your kind help and now completed. Overall, I am very happy with the control and the strict adherence to Colleague Policies etc. Just need the hard copy credit card statements as you had already requested please, but this was misunderstood. Would you kindly be able to pen in some replies in due course and return the attached to me so that I can issue the final report?" 247. On 2 April, Ms Carnegie sent a message on the WhatsApp group: "[02/04/2019, 16:00:48] Jennifer Carneige - Yep. 1715. 2 items to go through.

1. Update on payroll & expenses audit.

2. She's paper and how everyone is getting on with their evidence gathering ." [emphasis added] 248. The context of this message was for a call between members of RemCo . There were no minutes of this call.

249. On 14 April 2019, a Board meeting took place where audit findings were presented by KPMG. Following the audit presentation, the minutes of the meeting contained the following observation: "BS then said that he had allowed the session with KPMG to run its course out of concern for SH who appeared to have suffered an emotional crisis. BS also said that as SH's observations were unstructured and inconsistent the Board should take guidance on the Financial Statements and the Highlights Report from the Audit & Risk Committee which was scheduled to meet on 30th April 2019 in preparation for the Board meeting scheduled to take place on 5th May 2019." 250. While the meeting was ongoing, messages were being exchanged on the First WhatsApp Group. Ms Carnegie, at 12.49, stated the following: "[14/04/2019, 12:41:55] Jennifer Carnegie - Frustrating not being in the room with you all today. Some really fundamental messages for us in the KPMG presentation that unfortunately have been obscured by some self-congratulatory story telling of the worst kind. I can't abide that kind of arrogance. The messages are muddled for me as he changed his tune throughout the presentation but it would be helpful to really understand what he is getting at about the management team not rising to the challenge. It goes to the heart of our concerns about the organization." 251. Later that evening, Ms Champion messaged the group asking for a quick conference call, " Just so we all agree on our direction of travel? ". A call took place on 15 April. There were no notes of this call.

252. On 16 April at 13.57, Ms Champion sent an email using private email addresses to Ms Ryde, Ms Carnegie and Ms Williams. She firstly reported that she had asked Mr MacLeod for an update on the HR function and then set out that there was an advert in that day's newspaper for human resources officer which Ms Ryde had spotted. The email concluded by Ms Champion saying that she would like RemCo to " send a formal letter of reprimand to " Mr MacLeod.

253. At 14.35, Ms Williams then messaged the WhatsApp group " Ladies, how much more do we need to say enough is enough and pull a no confidence vote? ". At that stage, the concern was that the advert was about the recruitment of the chief human resources officer. However, Ms Williams realised that the advert did not relate to the CHRO role and replied to Ms Champion as follows: "No, we should not act on this situation. The position being advertised is to replace a Guernsey HR Officer who has resigned to retire and spend time with her grandchildren. This is totally unrelated to the CHRO position and what we are waiting for in REMCO. I know that we are all frustrated at the lack of information coming from our 'Leadership' team, but we will be in danger of getting 'egg on our face' if we jump all over this." 254. Ms Carnegie replied " Teamwork! I was getting all revved up then " (email sent on 16 April 2019 at 1515).

255. On 23 April 2019, Ms Carnegie messaged the group to report that employees of the Co-op would receive profit related pay, apart from members of the senior management team.

256. On 25 April, the internal audit final report on expenses was published. The report contained the following (i) In relation to company credit card statements, the report highlighted that these were not being distributed for review and approval by card holders. The report therefore stated " This presents an internal control concern. Management responded that hard copy company credit card statements would in future be distributed for review and approval by the card holders and their reporting lines ". (ii) In the internal control summary, three items were ranked as red. Two related to credit cards and a third concerned a failure to reclaim GST on expenses.

257. On 30 April, a minute of the Audit and Risk Committee took place attended by Mr Le Tocq, Ms Ryde, Mr Shenton and Ms Jennie Vibert. Mr Rees and Mr Lintell also attended, as did representatives of KPMG. The lead partner was a Mr Quinn. He had stepped in and produced a fresh audit report which had been prepared since the meeting of 14 April. The following points were minuted :- (i) The report indicated that KPMG expected to issue an unqualified audit opinion. (ii) The Co-op was reporting a net current liability of £1.7 million. This led to the minutes noting the following: "AQ said that DR had provided him with a written assessment of the Society's status as a going concern, which he was willing to accept. AQ said however that he required the Board to approve the going concern assessment when considering the Society's Financial Statements on 5th May 2019." (iii) There were then discussions about a property in Guernsey and whether the rent payable exceeded the value of the property to the business. (iv) There were also discussions about the accounting treatment of certain other assets. (v) The minutes also noted that there were a number of unadjusted audit differences. Mr Rees explained that these issues had been highlighted quite late in the audit process.

258. At the meeting it was then concluded that, because of the speed at which the audit had to be recarried out, it would not be possible at that stage for the Audit and Risk Committee to recommend the financial statements, it was proposed that they would have to be reviewed by the Board. The minutes also recorded Mr Le Tocq stating the following: "RLT said he recognised the huge efforts that DR, his team, CL and Katey White, Membership & Community Manager had made in order to ensure that the Financial Statements were available to the Board for approval in time for the Annual Meeting of Members." 259. It is also right to note that the same meeting discussed that the finance department was under-resourced and needed to be strengthened. The 5 May Board meeting 260. The meeting began at 9 a.m. Present, according to the minutes, were Mr Shenton, Ms Carnegie, Mr Le Tocq, Ms Ryde, Mrs Jennie Vibert, Ms Williams and Mr MacLeod. In attendance were Mr Quinn and two others from KPMG, Mr Rees, Mr Cox, the chief operating officer, and Mr Lintell. The meeting noted that apologies had been received from Ms Champion. We interject to observe that Ms Champion in her oral evidence contended that she was listening in to the meeting from India where she was away with family. While we accept that Ms Champion listened into part of the meeting, it was not clear to us how much she was able to hear from her description of how she was listening in or how long she was present.

261. The first part of the meeting was an in-camera session with the directors (including Mr MacLeod) and KPMG. The other attendees were not present.

262. During this session, the auditors made a presentation to the directors. The session ended at 9.55 a.m.

263. Towards the end of the in-camera session, within the First WhatsApp Group, the following exchange of messages between Ms Carnegie and Ms Williams occurred: "[05/05/2019, 09:43:04] Jennifer Carneige - Any thoughts so far? [05/05/2019, 09:44:08] Paula Williams - Totally with you. They will try to pin it on David [05/05/2019, 09:47:36] Jennifer Carneige - Yep. Time to act on all our concerns with the running of the society is now I think [emphasis added] [05/05/2019, 09:48:04] Paula Williams - Agreed." 264. This was clearly a discussion about what was being said by the auditor.

265. The minutes then set out the key findings of the auditor at Section 2 listing certain matters outstanding for management.

266. At Section 2.3, Mr Quinn, the KPMG audit partner, stated " He expected to be able to provide an unqualified audit opinion ".

267. The minutes then at Section 2.4 contain the following under the heading " going concern ": "AQ explained that the Society had reported a Net Current Deficit of £1.7 million, which was £1.6 million greater than in the previous financial year. He said this meant that the Society was technically unable to meet its liabilities as they fell due. He explained however that he had received an assessment of the Society's status as a going concern, signed by CM, DR, MC and CL, (the "Assessment"), which stated that the Society had the reserves required to meet its Current Liabilities and to reduce or eradicate the Net Current Deficit. He said he was prepared to accept the Assessment as detailed in Item 4 of these Minutes." 268. The remainder of Section 2 dealt with other audit issues which are not relevant to this judgment.

269. At Section 2.9, there were observations about journals which led Ms Carnegie to ask three questions. Further questions were asked by Ms Carnegie about ATM reconciliations, the property valuation process and the size of the accounting team. This included the following statement: "JC said the situation within Finance represented a clear and present danger to the Society and asked DR if he needed external support to help resolve matters." [emphasis added] 270. The overall conclusions were summarised in the minutes as follows: "BS then asked AQ to summarise his overall concerns having all but completed the Audit. AQ said he - ( i ) believed that the level of diligence over financial reporting was not to the required standard, as evidenced by the volume and scale of the Unadjusted and Adjusted Audit Difference; (ii) had significant concern over the key controls in place; and (iii) believed that the Board could be criticised for not challenging the Executive Management Team sufficiently. He said that if he were able to audit the Society in the financial year ending in January 2020, he would expect to see evidence that material progress had been made in addressing these matters. AQ also said that progress towards the remediation of these problems should be on the agenda of every Board meeting, until they had been resolved. AQ then said that, whilst a materiality threshold of 1.5%

of turnover amounting to €2.7 million, and a triviality threshold of €108,000, were within normal parameters, the materiality threshold for future audits of the Society would have to be significantly lower, given the nature and volume of the Unadjusted and Adjusted Audit Differences identified in the Financial Year." 271. Around this time, Ms Carnegie, in another WhatsApp message, stated: "[05/05/2019, 11:12:49] Jennifer Carneige - Well that's clear then!!!" 272. A further in-camera session then took place involving the directors but not Mr MacLeod. This discussion took place between 11.26 and 12.10 according to the minutes.

273. This led Ms Carnegie to observe at 12.06 " I don't think Ben is up for really addressing this ".

274. Ms Williams gave evidence that during this session a vote of no confidence was passed by the Board in Mr MacLeod led by Ms Carnegie.

275. The next section of the minute of 5 May concerned management's assessment of the business as a going concern. Mr Rees set out why the Society was able to pay creditors as payments fell due. Sub-paragraph ( i ) stated as follows: "it had Current Liabilities of £30 million, of which £13.3 million was in the form of Members' Loans, and that although the balance of Members' Loans had fallen, the rate of reduction was not causing any concern and had been partly offset by the conversion into "B" Class Shares." 276. This is reflected in section 16 of the notes to the accounts ( CaseLines reference J1014) of the Co-op which recorded " members loans " as being £13,316,000 as against the previous year's entry of £14,849,000.

277. These " members loans " represented accrued "dividends". These were not ordinary dividends in the sense of a company making a distribution to a shareholder. Rather they reflected that anyone could become a member of the Co-op. When they did they received what is known as a share number. Each time a member shopped and used their share number, they received a credit against the shop known as a dividend. These were recorded in the accounts as loans as any member could call for payment of dividends that had accrued to that member at any time. This system has since been modified.

278. In response to the audit finding, Mr Shenton stated the following in the minutes at section 5: "Response to the Audit Finding's Report BS said the Audit Findings Report and AQ's comments about the Society's overall control environment were deeply unsatisfactory and profoundly disappointing. He said that the Board was required to approve the Society's Financial Statements and sign the proposed Letter of Representation provided by KPMG." 279. This led then to a suggestion from Mr Lintell that the Board would approve a Letter of Representation required from the Co-op for the annual report, subject to receiving a signed letter from Mr MacLeod, Mr Rees, Mr Cox and Mr Lintell providing the same representations that the Board had been asked to make to the auditor.

280. The signed Letter of Representation is found in the CaseLines bundle at J2633. It is not necessary for the purposes of this judgment to set out that audit letter in full. While we address this letter later in this judgment, there was nothing remarkable in it in the view of the Court. The executive management team provided the Letter of Representation requested on 8 May 2019.

281. In the next paragraph, Mr Shenton is recorded as stating that he did not want the Society to be " in such an unsatisfactory position again " and he therefore asked Mr MacLeod to prepare a report explaining how this state of affairs had arisen and outlining the remedial actions proposed to address all the problems outlined in the audit findings report.

282. After the second in camera session, the minutes also record that Mr Le Tocq resigned. The minutes noted the following in that regard: "RLT said that he was dissatisfied that such significant issues had been identified in the Audit Findings Report, particularly as a number of the matters highlighted related to recurrent themes that had not been adequately addressed in previous years. He said these included the continued lack of resource within the Finance and the lack of progress towards completion of the policies and procedures for Finance. He said he had concluded that there were issues with both the management and oversight of the business, which were too deep-rooted to be resolved from a Non-Executive position." 283. Ultimately, Mr Le Tocq did not resign immediately; rather, he remained as a director until the conclusion of the next Board meeting which took place on 30 June 2019.

284. Ms Carnegie is then recorded as stating the following: "JC said that the Board had lost confidence in the Executive Management Team and noted that AQ had said in one of the in camera sessions, that he did not believe the Board was fulfilling its oversight function adequately. She added that she was not confident that these management and oversight issues could be resolved in the financial year ending in January 2020." 285. The meeting also recorded the following statements made by Mr MacLeod and Ms Carnegie: "CM asked for clarity as to the Board's areas of concern and enquired how the Board would be able to engage with the Executive Management Team in a more executive style. JC said that the Board wanted to support the Executive Management Team, starting with the review proposed by BS." 286. Around this time Mr MacLeod alleges that Ms Carnegie stated, following on from Mr Le Tocq's resignation, that " he won't be the last to go ". Mr MacLeod's evidence was that these words were directed at him. Ms Carnegie's evidence was that she was saying that other directors might also resign, including herself.

287. The meeting closed at 13.05 hours.

288. At 13.19 in the first WhatsApp group, Ms Champion asked " What are you guys talking about? ". This confirms that she had only been able at best to listen to part of what had happened in the Board meeting. This led Ms Carnegie to state the following: "[05/05/2019, 13:20:32] Carol Champion - Something bad around Auditors Report? [05/05/2019, 13:41:02] Jennifer Carneige - Board has just told the exec that they have lost confidence in them. Richard has resigned from the Board because of it too [05/05/2019, 13:44:11] Jennifer Carneige - Auditor has significant concerns that the business is not being run properly and the continual lack of addressing areas of concern means that our members can legitimately question what the Board have been doing - so we are not in a good place. Board have signed off the accounts but only on condition that these issues are tackled robustly." 289. Ms Carnegie also stated the following at 14.19: "[05/05/2019, 14:19:21] Jennifer Carneige - Ben started the conversation saying we never want to be in this position again and I said we had lost confidence in them ." [emphasis added] 290. At 14.39, Ms Champion replied " So wish I'd been there to reiterate our lack of confidence in their abilities ". Events for the remainder of May 2019 291. On 6 May 2019, Mrs Vibert emailed Mr Shenton. This email included the following: "Yes, it was the worst ever Board

meeting. You're right, there is now a vocal mistrust of the Exec which saddens me because, as you know, I've known these people for many years and sat on the BECC to try and bring the trust back into the Board room especially as I do feel partly to blame because I'd forgotten your warning and raised the 'other report' that possibly triggered the appalling departure of PB. ..... I was with Chris and Jennifer after everyone left yesterday and the subject of new Directors was discussed. Chris said I would weep if I saw the names of the people who came forward but were put off by the pay and meetings on Sundays. Then they both started saying that "the model has broken', that the CICS now requires top calibre directors and that the CICS should become a company!! That was getting too radical for my battered understanding so I left with Jennifer saying she wanted a private word with Chris. No idea what that was about. I see those 2 as the outsiders with Chris believing he is superior, labouring his points and not able to take criticism, and Jennifer, the professional NED who has come in thinking the CICS was a cushy position, discovering there's much to do and becoming an aggressive disruptor. ..... However correct Jennifer may be in her assessments of the current KPMG situation, her detached, dispassionate attitude of a professional NED was not helpful and I was pleased to see

you interject at times and calm her down. No wonder David is feeling fed up. Mark spoke well and accepted the Board had a point and he could understand our concerns. Colin's response was less than supportive of his team and the processes he has put in place.... Jennifer displays the detachment of a professional NED and I was disappointed to witness her display of aggressive confrontation. Jennifer has not had to show loyalty to our CICS in front of the Members to be elected by them and, however much she may say she is co-operative, I see her as a disrupter and certainly lacking in people skills. I don't think her style is encouraging enough to inspire following her leadership. At the moment R & R is all female, would a male take so kindly to her style? Jennifer was given meetings with each of us before she started which has given her more of an advantage than any of us in starting off with confidence on the Board. .... My instinct, and I do hope I'm wrong, is that the 'baying for blood', the endless build-up of negative events and constant report-making demands from the Board is going to lead to the CICS leadership heading for the 'perfect storm' of implosion. Not a good vibe for new director(s). .... I'm a dinosaur, a disillusioned dinosaur in this Co-operative business but I want to believe that our Execs will 'produce the goods' but it will be by evolution at a speed they

can manage and run the business at the same time and not just fulfilling the demands of an aggressive Board who are feeling threatened by an auditor who is being held to task by litigation and determined to make a point to cover the embarrassment of a colleague melt down. Agreed, your position in (sic has) become more onerous and UNAPPRECIATED." 292. On 6 May, there was also a private exchange of emails between Sue Ryde, Ms Carnegie, Ms Williams and Ms Champion. The context of this was a strategy meeting fixed for Friday 10 May. This led Paula Williams to suggest the following: "As for the RemCo . I believe that it is time for Colin to show leadership and deliver on what we have been asking for over the past 6-9 months. Therefore, we need to step back and quiz him fully on his vision of strategy, his reasons for providing the structure as it is. He is being paid a great salary and I personally would like to see some deliverables. So, I don't think any of us should step in and help him out - I think we should ask lots of questions like 'why that person?', 'what do you see their role as being?' 'what difference will that make?', 'why is that the best person for the job?'. It is his opportunity to really show us what he is capable and we need to be mindful of not letting him off the hook or digging him out. If we do not agree with what he proposes, then it is just another piece of evidence that we can use to support our position , once we have received managements response." [emphasis added] 293. Sue Ryde replied saying " The timing is tricky as we need change now! ". Paula Williams responded the same day at 13.48 saying " As Jennifer said, let's keep the pressure on ".

294. On 7 May at 7.19, Mr MacLeod texted Mr Shenton saying he had reflected " at considerable length over the meeting on Sunday too. And haven't slept much as a consequence ." 295. He also explained he was in Guernsey on 7 May at a meeting with a trade union.

296. On 7 May, Mr Shenton replied to Mrs Vibert's email, referred to at paragraph 292 above, which concluded with the following, " Like you, I have concerns about hidden agendas ".

297. Also on 7 May, Mr MacLeod emailed Mr Shenton expressing concern about attending a meeting of RemCo on 10 May as follows: "But, following Sunday I am not warm to the idea of facing Paula, Jennifer and Sue until I know more about 1. What are the root causes of concerns over capability, transparency and trust.

2. The final shape of our assurance to Board on the control environment leading potentially to further structural development. On the other hand, a meeting may give me a better understanding of what is actually driving their aggression." 298. On 8 May at 15.50, Mr Shenton emailed Mr Lintell stating that he understood that RemCo had requested copies of Mr MacLeod's expenses or, at a minimum, an audit of them. He then noted that Ms Champion complained that this had not been supplied leading to Mr Shenton asking for the information to be supplied to RemCo as soon as possible.

299. Mr Lintell replied saying that he wanted to give Mr Shenton a call because " the brief was wider than that and Gavin ran into a few issues.... Then the recent debacle ".

300. On 9 May, Mr MacLeod emailed Mr Shenton. This appeared to be following a discussion they had had on 8 May. The email stated the following: "Thinking through something you said on Wednesday - the fight fire with fire' thing (not your exact words I know) I have concluded that there is another way ... I have drafted the email below, merely as an illustration of something you could send (or at a push I could). Happy to discuss or do further work (it needs a bit) on this if you think it is an avenue you'd like to explore ... I think I would need to find a way where I couldn't be accused of condoning the sort of behaviour we discussed [sic]." 301. It also enclosed a draft email to Ms Carnegie which stated the following in the first paragraph: "I have been reflecting on the Board meeting and have decided that, as President, I should point out that I do not believe that the sort of aggression displayed at our meeting on Sunday is setting the right tone. It is important that the Board acts in accordance with our values and principles as a co-operative. and it is vital that our Board should (sic not) be seen as condoning behaviour that is described by our own kindness policy as bullying." 302. The same draft also enclosed the Co-operative's kindness policy. The kindness policy was also exhibited and required every colleague to be " treated with dignity and respect " and that the policy was intended to achieve a number of statements, including " to reinforce awareness that bullying and harassment are not acceptable; ".

303. The meeting between Mr MacLeod and RemCo to discuss strategy took place on 10 May in Guernsey. Mr MacLeod presented a strategy and structure paper. The document provided to us ran to twenty-seven pages. The final page contained the next steps, the first of which was " Consider RemCo feedback ".

304. Following the strategy meeting, there was a dinner. This led Mr MacLeod to email Mr Shenton that evening at 10pm stating " Hi Ben. Session tonight was very good. RemCo fully on Board with direction of travel... Just thought I'd let you know so you can properly enjoy France ".

305. This led to further exchanges in the first WhatsApp group the next morning. Ms Carnegie firstly at 9.41am stated the following: "[11/05/2019, 09:41:45] Jennifer Carneige - Morning. Thanks for all your inputs last night. I was talking to Colin this morning and he said he was pleased with the result of the meeting and was surprised by how keen we were to progress to the new structure. I suggested it was because we don't believe the current structure is working or providing the focus we need on key parts of the business." 306. At 9.49, she stated: "[11/05/2019, 09:49:46] Jennifer Carneige - There are moves to discredit the KPMG audit results which we must watch out for. Even if they got a few things wrong it should not be used as an excuse to avoid addressing some fundamental issues. I sense Ben has no appetite for putting the exec under close scrutiny but I think now is the time to do exactly that." 307. The following exchange between Ms Williams and Ms Carnegie took place: "[11/05/2019, 09:54:48] Paula Williams - It does show how out of touch he is with the Board. Working in a more collaborative way is obviously new territory. [11/05/2019, 09:55:08] Jennifer Carneige - Yep. I feel like his new best friend!!! [11/05/2019, 09:55:32] Paula Williams - For today . [11/05/2019, 09:55:43] Jennifer Carneige - Saw a good quote today. " Trust comes in drips and leaves

in buckets! "" [emphasis added] 308. At 9.57 the same day, Ms Carnegie also emailed Paula Williams stating: "[11/05/2019, 09:57:45] Jennifer Carneige - Paula I'm really interested in the thinking you have been doing on the strategy for the business. This is definitely within the Board's domain." 309. Paula Williams replied at 10.02 stating " Will continue to progress it. Have the corporate governance and strategy piece together. Need to just massage the structure alignment (from bottom up). It is a two Hub scenario. Am happy to share ...".

310. The annual general meetings of the Co-op in Jersey and Guernsey then took place on 14 and 15 May at which the annual accounts were approved by members of the Co-op and the results of directors' elections announced. Ms Ryde was not re-elected as a director.

311. At the conclusion of the Guernsey meeting, it is alleged by Mr MacLeod that Ms Willams had a conversation with Mr Shenton and proposed that she replaced Mr MacLeod as CEO. Ms Williams accepted that she had spoken to Mr Shenton but she had simply offered to help with strategy " to help get the Society back on track " (see Ms Wiliams' witness statement at paragraph 97).

312. On Friday 17 May, there were further exchanges of WhatsApp messages in the First WhatsApp Group. The context was about arranging a meeting of RemCo on 21 May which was set up to be a WhatsApp call just between the members of RemCo . In response to a message from Paula Williams sent at 10.58, Sue Ryde asked ".... any response from Ben to your proposal? ".

313. Paula Williams replied at 11.01: "[17/05/2019, 11:01:01] Paula Williams - No, have asked Carol to chat to him about you picking up my slot too. So he has a chance to consider the full picture." 314. The reference to the full picture is because Ms Ryde had not been re-elected as a director of the Co-op at the annual meetings that had taken place. If Ms Williams became CEO there would be a vacancy for a director which Sue Ryde could fill.

315. Within the same chain of messages, Ms Carnegie at 11.23 asked " We need to consider the CEO getting a bonus at all, given what we would like to happen ". [emphasis added] 316. She then added at 11.23:50 " I sense Ben is looking for reasons to make it all go away ". At 11.24.26, Ms Carnegie asked for bullet points on Mr MacLeod's performance.

317. On 17 May, Mr Shenton emailed Mr MacLeod stating the following: "This will be the most important email that you will ever send and you need to ensure that you leave enough time for them NOT to come back to you. If they don't counter your assessment of the meeting within four days then it can be assumed to be accurate and true. At the performance reviews give me a copy of your email, in front of Jennifer." 318. On 18 May, Mr MacLeod emailed Mr Shenton with the draft of a note to RemCo . Attached to this was a three page document entitled " Organising thoughts " which included the following statement under the heading " Right environment ": "We need to create conditions that foster both SUPPORT and CHALLENGE." 319. The same document noted that Ms Williams had undermined the individual whose role she had applied for. This is the first reference to Mr MacLeod being aware of the suggestion that Ms Williams had applied for Mr MacLeod's job and that Mr MacLeod had been made aware of this by Mr Shenton.

320. Mr MacLeod also posed questions as to when Ms Carnegie's contract expired and whether Ms Champion and Ms Williams would step down. He also asked " Do we think this is recoverable? Can it be mediated? " 321. Mr MacLeod's thoughts were sent in a covering email to Mr Shenton where he stated: "I tried to download some thoughts on the attached. And tried to remain as objective as I can." 322. Also, on 18 May (a Saturday) at 13.17, Mr MacLeod emailed the members of RemCo which commenced with the following: "I wanted to write to thank you for the constructive way in which you all engaged last Friday and to note the next steps which I agreed to take away." 323. The email also included the following: "Happily, there was unanimous agreement on the objectives to be built into the review and the direction I had proposed, albeit Remco felt I could be bolder in moving directly to the structure that I had offered as 'Evolution 21'. I agreed but caveated that I had developed the evolved structure as indicative and suggested I needed to review and refine it in light of capability now, risk, cost and succession. Remco offered the view that elements of it could be treated as a 'shadow structure' with appropriate development supporting. With this in mind, I agreed to further evolve the thinking based around the 2021 framework. ..... Considering the work outcomes from the meeting, I can offer

5th, 6th or 12th June if the committee wish for another face to face session. I will ask Kellie to circulate these calendar options on Monday. ..... Ben has told me that he has had to "unblock" the dissemination of information too frequently and that information is being withheld because individuals wrongly believe I need to sanction information flows first. Whilst I'm not sure why this blockage occurs but it may simply be a lack of understanding of the process, and/or communication. A situation whereby all information to the Board has to pass through the CEO is clearly unsatisfactory on so many levels and I have enough on my plate without adding part of the Company Secretary role to my responsibilities." 324. No response was ever received to this email.

325. On 19 May, there was an exchange of emails between Board members (but not Mr MacLeod) about the previous week. This exchange concluded with a remark from Paula Williams - "By the way, I particularly like the 'as your CEO I would like to apologise'." 326. The email was also copied to Mr Lintell. Mr MacLeod complains that this email was both mocking him and sent to a non-Board member (Mr Lintell).

327. On 20 May, Ms Ryde and Ms Williams emailed Ms Carnegie about points for Mr MacLeod's appraisal. The email from Sue Ryde contained the observation " Colin looked uncomfortable on platform, in ill-fitting shirt / suit, no tie and Boris Johnson hair ". Ms Williams in her email of 20 May stated, " Also there is the small matter of 'no confidence' of the Board at the minute in the leadership team to deliver quality results ". These emails were sent using private email addresses.

328. On 21 May, Mr MacLeod emailed Mr Shenton at 18.56. This email followed an earlier conversation. The email contained the following: "The sheer spectacular nature of PW's application of the CEO role has stunned me. On every level." 329. He then attached a draft letter for Mr Shenton to send to Ms Williams which contained a suggestion that Mr Shenton should recommend Ms Williams immediate removal from office.

330. On 22 May at 20.19, Mr Shenton emailed Mr MacLeod asking him to draft a letter of complaint: "Colin, could you let me have a written letter of complaint signed by you, David and Mark (and Chris?) complaining about the increasingly aggressive behaviour at Board Meetings, the lack of trust, the lack of co-operative principles, and everything else you want to throw in. It should highlight whatever you want. Suggest that with the new Board we remove the hidden agendas and rely on the facts to drive the business forward." 331. The same message also stated that Mr Shenton was going to review the performance of RemCo and audit against their terms of reference, describing RemCo as " an absolute disaster - they failed to meet hardly any of their aims and achieved next to nothing. The reports will be included in the next Board pack ". Mr MacLeod replied at 7.52, " Will do! With pleasure (and a smile emoji). Didn't sleep a wink last night. I thought I was resilient but I suppose everyone has a point where stress starts to wear them down ....".

332. At 9.40, Mr MacLeod emailed Mr Shenton to state that Mr Rees and Mr Cox had agreed to co-create the complaint Mr Shenton had suggested.

333. At 9.55, Mr Shenton circulated an exchange of emails he had had with Ms Carnegie.

334. The exchange the previous evening (21 May) at 18.55 where, having requested information about Mr MacLeod's appraisal, Ms Carnegie then asked: "On a different subject, have you had a chance to work out the terms of reference for the KPMG deep dive into expenses and do we have timescales for that?" 335. Mr Shenton replied on 22 May, which included the fact that he had asked KPMG for a review of the expenses policy which defined the terms of reference as follows: "The terms of reference are - 1. Review of current expenses policy and adherence to policy.

2. Review of expenses paid for the past 3 years with particular reference to the expense claims of the Chief Executive Officer and Company Secretary (note - see below why Company Secretary is included).

3. Recommendations in respect of improvement and good practice going forward." 336. The email noted that monitoring expenses was a matter for the Board (see paragraph 213(b) above).

337. The email then contained the following: "Whilst writing I feel I should raise an issue. At the Jersey AGM Paula passed to me a paper and offered to stand down from the Society to offer her professional expertise to "turn the Society around" should the CEO be replaced. The paper was underwhelming with no detail on how anything would be achieved. I was told that the paper had been passed to three other Directors. I am very uncomfortable with this judgement as it removes a degree of independence. To suggest that certain actions are taken which will facilitate paid employment of an existing NED to turn matters around hardly smacks of independent behaviour, especially someone with no experience of running a large retail organisation. A decision based on the belief that you can do better, and paid employment may result, must be different from a dispassionate independent decision. I have not spoken to Paula about it, but it will certainly taint my view of her opinion when this matter is discussed. I've been giving the matter a lot of thought, with no conclusion as yet. It's not something I've encountered before." 338. This email confirmed in writing that Mr Shenton appears to have told Mr MacLeod about Ms Williams applying for his job, referred to in Mr MacLeod's email of 21 May to Mr Shenton (see paragraph 320 above).

339. On 22 and 23 May, Mr MacLeod, Mr Rees and Mr Cox produced a draft complaint letter. On 23 May, Mr Shenton messaged Mr MacLeod where he stated: "Make the complaint about JC as personal as possible, something that she would not want to get into the public domain or go to Board. Use the "you criticise but have failed to do even the basics at RemCo route. RemCo are supposed to discuss and agree the prp pool at budget level. You basically want a document that she won't want circulated. If she is still in post it will need to be discussed by the full Board. In terms of PW I will write a letter over the weekend asking for her resignation. Don't forget we already have the bullying accusation, the I can help you with the Donna thing, and other stuff." 340. The final version of the letter of complaint that Mr Shenton had asked for from Mr MacLeod was dated 24 May 2019 and came from Mr MacLeod alone. It read as follows: "Late last night I received correspondence from a valued member of the Senior Management Team expressing concern over "Board Conduct and general approach". The note expressed deep concern over a range of issues. As the leader of this Society, Chief Executive Officer and a Member of the Board it is with deep regret that I now feel compelled to formally register my concerns over the recent conduct of the Chair of RemCo , Mrs Jennifer Carnegie. These concerns are shared

by others within our Executive and wider leadership team. Having wrestled with this at considerable length and cannot escape the fact that you, in your role as Society President and I, as your Chief Executive Officer would fail if we did not stand up for our values and did not seek the universal application of our Kindness Policy. Comments made and actions taken recently by Mrs Carnegie have seriously affected morale, affected our health and wellbeing, and have made ongoing strategic management of the business exceptionally difficult. It is evident that this has started to spread beyond those Executives who attend the Board Meetings, with Senior Managers now questioning recent events that I, to preserve Board confidentiality, am unable to answer. We recognise and fully endorse the Board's responsibility to monitor performance, probe issues and seek clarification. However, over recent months the challenge presented by Mrs Carnegie has been increasingly aggressive in manner and some actions taken appear to have been designed to intimidate, confirm preconceptions or to work to an alternative hidden agenda, rather than to understand the issue in hand. The most recent Board meeting was wholly adversarial in nature, with Mrs Carnegie stating that the leadership of the Society was not trusted, there was no confidence in us and that there was a lack of transparency in our dealings with

the Board. When another Director indicated his intention to stand down, she said 'he won't be the last one to go'. This was stated in an atmosphere that did not afford us the opportunity to explain or to challenge any of the details of the issues raised. Her leading questions of the Auditor were unprofessional, as was her leap to judgement, without appearing interested in anyone else's opinion. Behaviour totally unbecoming of a Director. We find this attitude unfathomable given our record of managing the Society. We can see no reason for lack of trust in respect of our capability. Despite a very difficult market, by most measures the Society has outperformed its peers and delivered an excellent trading result in its core business. Liquidity has been maintained despite the nature of its share capital and innovative solutions to long- term problems, such as Charing Cross, have been identified and implemented successfully. Other deep-seated issues have been resolved, such as margin, which had previously defeated KPMG in an external review. Business is inherently risky and in a large and complex business there will always be challenges. Of course not all Management initiatives have borne fruit but at the key measure of comparability of business performance, EBITDA, the Society is at the leading edge of the market sector, while continuing to deliver a return to its Members greater

than any other similar organisation. There should always be a professional distance between non-executive directors and the Executive but the most effective Boards are capable of fostering an environment where Directors and Management work cohesively as a team, with humility, respect and candour. Where Management's actions are perceived through a negative prism, more attention is given to failures than to successes and the Society is being successful. We must of course learn from failures but it is equally important to learn from successes. A strong business unites when faced with inevitable challenges. Mrs Carnegie appears to seek to divide. We assure you that we have always approached our relationship with the Board in a collaborative spirit; however, recent events give the impression that Mrs Carnegie does not feel obliged to reciprocate. This has destroyed morale, created mistrust and left us bewildered as to why we have reached this situation where instead of collaboration in the best interests of the Society, there is a clear schism between Mrs Carnegie and Management. Culture is driven from the top down, which in a Society such as ours is epitomised by mutual respect, openness and co-operation. However Mrs Carnegie's approach to the Management has been increasingly aggressive in manner, such that it can only be classified as bullying; her actions are in clear

contravention of our Society's "Kindness Policy", which incorporates our Anti Bullying Policy and which requires, inter alia, that all Colleagues (including Directors) should - · Look for solutions to problems and try to resolve issues constructively; · Try to understand other points of view and to help others to understand theirs; · Promote the corporate values of the Society in all of their work activities; and · Challenge others in a respectful manner. In Malik v BCCI (1997) UKHL23 the House of Lords stated, 'the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'. This precedent has been applied on numerous occasions, without variation by the Jersey Employment Tribunal. It is difficult to envisage a more unequivocal situation where this would apply. It is a clear statement made without following any due process whatsoever. There was no attempt to: · Try to resolve issues constructively; · Try to understand Management's point of view; · Promote the Corporate Values of the Society, which are founded on openness, co-operation and respect; or · To challenge in a respectful manner. Furthermore, Mrs Carnegie is quick to criticise, and is insistent that process be followed, except apparently when it doesn't suit her. We fail to

see what she has achieved as Chair of RemCo . We would respectfully suggest that you, as President conduct a full review of the Committee's achievements under her leadership, set against their terms of reference. Those terms of reference include an obligation for the Committee, at appropriate intervals to evaluate its own performance against their terms of reference. · The Committee undertook to review PRP in excess of two years ago. Nothing has happened. · The Committee, somewhat ironically, expressed concern over culture. The Board asked for a review to be carried out led by RemCo . Nothing has happened. · There are other responsibilities in their Terms of Reference where I am unaware of how their obligations have been met. · I have made numerous offers to support the Committee on their work programme but have been excluded. We would draw your attention to the following items contained in the Letter of Appointment for Directors: 3.2 You shall exercise your powers in your role as a Director having due regard to: 3.2.1. The Governance Code 3.2.2 The Alliance Values and Principles 3.3 In your role as a Director, and without prejudice to the provisions of the Rules and the Schedule, you shall in discharging your responsibilities be required to - 3.3.5 Uphold high standards of integrity and probity and support the Chairman and the Executive in instilling the appropriate culture,

values and behaviours in the Boardroom and beyond. I know that my decision to act on this today will mean we cannot discuss my performance, of which I am proud. But this is a matter of such gravity that the welfare of our organisation, and the people within it must take precedence. The legal advice I have obtained is that there is an almost unassailable case for constructive unfair dismissal. However, this would be a public event that could cause significant difficulties for the Society and would probably be catastrophic locally for any Director found to have acted inappropriately. Directors can be subject to disciplinary procedures under the Rules and Management can seek to invoke the Grievance Procedure, which the Board has a duty to uphold, to force this issue. However, I believe it would be in the Society's best interests if Mrs Carnegie were to consider her position and act honourably. It is not in anybody's best interest for this matter to be aired in a public or semi-public forum. If we can deal with this in a calm and civilised manner, all parties can walk away with their reputations intact. I hope that this can be achieved, however, if we cannot reach a sensible outcome, I have been made aware of a number of other issues, not covered by this letter that would no doubt be raised in any more formal setting. I trust that this will not be necessary. In

co-operation,..." 341. This letter was the date of Mr MacLeod's appraisal which was due to take place with Ms Carnegie and Mr Shenton. However, the appraisal did not take place. Instead Mr Shenton met Ms Carnegie alone and presented Mr MacLeod's complaint. Initially she offered to resign but this was not accepted by Mr Shenton. According to Ms Carnegie, Mr Shenton also asked her not to mention the complaint to anyone at this stage.

342. In the First WhatsApp Group, Ms Carnegie reported on this exchange as follows: "[25/05/2019, 11:03:57] Jennifer Carneige - Morning ladies. Thanks very much for your inputs into Colin's appraisal. I met Ben at 3pm as planned and he said he's didn't want to do the appraisal until after we had the revised audit report back from KPMG. I never even saw Colin. [25/05/2019, 11:14:35] Paula Williams - Thanks Jennifer. What is your sense of where Ben is on the CM situation? [25/05/2019, 12:05:44] Jennifer Carneige - Hi Paula. I think he is keen to get the audit report and the deep dive into expenses done [25/05/2019, 12:23:19] Paula Williams - Thanks Jennifer, nice to have the reassurance that it is not just going to disappear. Have a lovely long weekend. [25/05/2019, 13:27:28] Sue Ryde - I agree. However seems a little strange to meet then cancel the appraisal. It feels as if Ben is using the deep dive audit as pivot i.e. only source of definitive evidence. If not strong then problem has gone away. I'm not pre judging audit outcome. My issue is that it's a wider problem, the expenses audit one part only. Any time scale on this? I bet the rest of the Exec will be interested as this delay will mean their PRP can't be paid?" 343. Ms Champion, at 20.03 on 25 May, asked " Jennifer, did you speak to Ben about our legal position re exit of CEO? ". At 20.05, Ms Carnegie replied " I've mentioned to him that I believe we could do with it so we can be aware of requirements. I will mention it to him again when we talk on Monday ".

344. On 25 May, Mr Shenton also emailed Ms Carnegie setting out his conditions for re-election. This criticised RemCo for not monitoring the annual budget for employment costs including the following: "So whilst RemCo failed in meeting a part of their Terms of Reference, of equal failure is the Executive because despite knowing what information was required by RemCo they failed to provide it. Board Papers must be presented in a manner that enables the Board and the Board Committees to undertake their roles. The Directors should not have to ask for information that should be automatically supplied." 345. On 26 May 2019 at 18.58, Mr MacLeod sent a further email to Mr Shenton. This followed a phone call that had taken place on 25 May. The email contained the following: "Sorry if I was a little shocked on the phone yesterday. From being told just over a week ago that JC said I "had to be fired this week" to being told by you on Friday to write a complaint so personal that she had no choice but to resign, I didn't expect to hear that you were now reconsidering ....

1. Some form of clear the air meeting with JC 2. That you now may not send PW the note asking for her resignation. This has left me in a virtually impossible position . On one hand, I have led the delivery of a 'terrific' performance with an increasingly impossible management structure in the most competitive market in our history, on the other, we are not trusted and JC has no confidence in the Executive, apparently based on a clean (albeit unusual) audit, she has called for my head and idly spectated on the quite unbelievable and utterly disillusioned nature of PW's application for my job. To add to this, I have now been getting confused messages from you and have had to field deep unrest in the team at work whilst protecting Board confidence. But, at the same time, I really don't envy your position. My brain has been whirring all night and all day and I am fairly sure my instincts yesterday were sound (but I'm not able to think as clearly as I would like at the moment) .... You asked what I thought about you not accepting JC's resignation. I said that in an ideal world you would want people like her that were capable of bringing energetic teamwork, great ideas and positive change. I think I said in response to your question about mending the team and keeping JC that, for that to be achieved, several things would need to happen - · JC would need to issue an unequivocal

apology to Exec and Board for her wholly unprofessional and uncooperative behaviour. · You would need to write her expressing your deep concern over her aggression and actions that had the potential to bring damage our brand and bring our Society into significant disrepute. · She would need to fully commit to working with management constructively in future. No hidden agendas. · We would need a clear the air session. Ideally independently chaired. With all parties invested in moving forward and rebuilding trust and an open sharing of everything that you have told me that has been said. · I would need formalised long term protection. I will take advice on this. This won't be easy . But like I said, I haven't been sleeping and am finding myself irritable, especially with my children, which is very unlike me. So you may want to caveat my thoughts against the very difficult context I have been trying to operate in. But I think my advice is that this could work. We will shortly solve structure and in doing so will emerge with more time to support better Board/Exec alignment. We will have a dedicated Board resource and will also address the 'problems" you have alluded to. We will have a different Board, supporting a shared ambition and a newly constituted RemCo invested in helping, not hurting. The transition will not be easy. But is doable if we work together. However, in your shoes

I wouldn't see an alternative on PW though. What she has done is so fundamentally inappropriate that I can't see a defendable choice for you here. I know you are under a lot of pressure too and you need to respond to JC tomorrow. So you have these caveated thoughts." [emphasis added] 346. On 27 May, the Second WhatsApp Group was created ("the Second WhatsApp Group"). The members were Ms Carnegie, Ms Williams and Ms Champion. This was because Ms Ryde was no longer a director and therefore a member of Remco. On 27 May at 11.04, Ms Carnegie stated in respect of the Second WhatsApp Group the following: "[27/05/2019, 11:04:15] Jennifer Carneige - Please use this group for Coop business though and we can use the other for a little while if we want to ask Sue's advice." (Sue is a reference to Ms Ryde) 347. On 27 May 2019 at 11.33, Mr Shenton emailed Mr Lintell attaching a copy of an email from Robert Kirkby of KPMG setting out the remit of a review by KPMG of the expenses of Mr MacLeod and Mr Lintell for the past three years. The email from Mr Shenton to Mr Lintell stated as follows: "Dear Chris, I attach a copy of the full email from Robert Kirkby for your records. Please note the assumptions made and assist with meeting these. I am sure that you can understand that as the audit specifically includes your own expenses, merely as a result of being specified in the RemCo TOR, I

took you out of the loop and you had no prior knowledge of the KPMG arrangement. I believe this to be a very rare occasion whereby the Board would need to operate independently of the Company Secretary and I hope that we have not caused you offence as a result. Thanks,.." 348. Mr Shenton then emailed Ms Carnegie at 11.35 stating: "I sent Chris this merely as there may be an assumption that he organised the audit and kept it secret from his executive colleagues." 349. Ms Carnegie replied the same day: "Thanks Ben - well done for getting it formally started. I think it might freak Chris out a little that he has been singled out in name, as well as the CEO, for close scrutiny. It makes sense though given that both positions effectively report to the Board. Are you going to formally state that Chris now reports to the Board to take him out of being a direct report of Colin? We might need Chris's help with this and he is currently compromised as he works for Colin." 350. This led to further messages in the WhatsApp group all sent on 27 May as follows: "[27/05/2019, 12:12:25] Jennifer Carneige - You guys know this I'm sure but the penny only just dropped for me today - Ben can make clear and swift decisions around financial data. He is comfortable in that space and has years of experience. He is much more unsure when it comes to behavioural stuff and approaches the evidence in

the same way he looks at financial data. He needs documented proof to be comfortable. [27/05/2019, 12:13:02] Jennifer Carneige - I'd he doesn't have documented proof he sees it as gossip and hearsay. [27/05/2019, 12:14:35] Jennifer Carneige - So the word of a director is ok but he won't be comfortable using that as evidence. The documented results of an audit though give him something to work with. [27/05/2019, 12:17:49] Paula Williams - Agreed. I think there is enough going on between the audit, expenses and the cultural audit. We are just nervous because we know how good they are at covering themselves. Jennifer you are the best person to guide us on how to support Ben at the moment. So we will keep our frustrations and concerns to ourselves at the moment. I am just worried about the staff we are losing, especially when you look at the monthly numbers. Maybe this stat over the past year is worth investigating a little further. [27/05/2019, 12:18:22] Paula Williams - By RemCo 27/05/2019, 12:22:39] Jennifer Carneige - Definitely Paula. We need another meeting/call soonest really as there is a lot going on. I have spent a fair bit of time talking to Ben over the last few days and I'm confident he is all over it. He is nervous though and a bit brow beaten by the whole thing so we need to give him what he needs to keep his confidence high. Anything that looks like gossip, bias, a

separate agenda, sour grapes he will discredit." 351. The messages continued with Ms Carnegie stating the following at 12.40: "[27/05/2019, 12:40:16] Jennifer Carneige - Chris is continually compromised and nervous on this stuff because he reports to Colin which our lives more convoluted and tricky getting information without putting Chris in a difficult position. I have tried to work with that but it is adding to the problem. We need to make straightforward requests that are really within a straightforward way. I have written to Ben asking for Chris to report to the Board and not Colin." 352. This explains the email sent by her to Mr Shenton referred to at paragraph 349 above.

353. On 28 May 2019, Mr MacLeod went to his GP for what was described in the notes as a stress related problem. He was initially signed off for four weeks for a stress related disorder. On 29 May, Mr MacLeod wrote to Mr Shenton informing him that he had been signed off with stress for twenty-eight days. The email also stated as follows: "Following the events of the last few days and my correspondence and discussions with you, I haven't managed to sleep. I went to see my Doctor yesterday for some support and was told that I need to take some time out to clear my head and recharge my batteries. He has signed me off work with stress for 28 days. Obviously, I am not naive enough to think that as CEO I can totally disconnect from the business although the Doctor said that due to work being the cause, I should seek to minimise contact wherever possible." 354. The same email also referred to a general internal message which Mr MacLeod had agreed with Ms Dixon his P. A. This message stated: Dear All, You may have noticed that I have seemed to have had a lot on my plate recently. That has been true. Under medical advice I have been told to take some time out to focus on myself and recharge. I will be back with renewed vigour as soon as I can be. In the meantime I have sat with Kellie this morning and asked that she support you all by - Calendaring a very short Exec Meeting without me

each week to ensure alignment and common approach. Kellie will field my inbox. She has my complete trust and is more familiar than anyone else of the various commitments and communications I have. She will field and distribute incoming emails based on her experience. I will see Kellie every week to field any queries that need context, or to point her in the right direction. Please route any queries via her so as to avoid the phone ringing constantly. We have some very capable individuals in our team and I have no doubt everyone will all step up. I have discussed further comms with Kellie and she will clear my calendar, advise my reports and liaise with Exec etc. I have advised Ben. I am grateful for your support." 355. Mr Shenton forwarded this email to the other Board members.

356. Within the Second WhatsApp Group on receipt of Mr Shenton's email about Mr MacLeod, the following statement was made by Ms Champion: "Totally non-PC comment coming up here ... but when the noose starts tightening you get more stressed and end up off work! Mmmmm !!!!!! Wonder how many nooses there are?" [emphasis added] 357. Paula Williams replied at 12.32, " Um thought the timing was interesting ". June - September 2019 358. On 1 June 2019, Ms Williams wrote to the Board members about Mr MacLeod being signed off. This included the following statements: "Sorry Ben, it was only yesterday (after a very busy week) that I've had the opportunity to follow up on yours and Colin's email. As you know I have been concerned about Colin and the ongoing stress he has been under for a while now. The past year has been challenging for him what with the · terrible work accident with Valdo; · need to then represent the Co-op in court regarding health and safety failings; · resignation of his CHRO (and long term friend) on the same morning he went to court; · traumatic accident with his son and subsequent investigation; · change of relationship with the union has resulted in months of ongoing, aggressive negotiations with them · ongoing poor performance of medical and the need to bring in external expertise to save this part of the business · lack of deliverables to RemCo over the past 9-10

months (e.g. CHRO Role Description, Co-Op Strategy, structure, board reporting) · KPMG audit raising serious questions, resulting in the resignation of our Head of our Audit and Risk Committee and a loss of board confidence · need for the management team to respond to the concerns raised in the KPMG report to give the board comfort around how the Society is being managed Given what has clearly been a stressful time for Colin, it is critical that we as a Board recognise our duty of care to him and do whatever we can to support Colin to make a full recovery. Therefore, I must express my concern about the fact that even though Colin has been prescribed an extended amount of time to be off work, Colin is not fully stepping back from his workload . As a Board it would be remiss if we did not make space for him to do so." 359. The email contained a suggestion that Mr Rees be appointed as interim CEO for the next week, that Ms Dixon report to him and that Mr Cox then step into the role of interim CEO until Mr MacLeod was fully back and recovered.

360. Ms Carnegie added her thoughts stating: "I agree with you that as a Board we would be failing in our duty, susceptible to criticism and potentially legal challenge, if anything untoward occurred whilst we have no active CEO. I think we must nominate a stand-in CEO formally for this period and I support your view that the CFO, followed by the COO on his return from holiday, would be the logical solution. I cannot imagine that any other £200M business, especially one as complex as ours, would allow itself to run on autopilot with so many issues bubbling and in need of attention. We have no guarantee that Colin will be fit to return to work within 28 days, which further endorses the need for a formal plan to run the Society in his absence." 361. Mr Shenton responded on 2 June disagreeing.

362. At the same time, Mr Shenton also wrote to Ms Williams alone, which email included the following statement: "Your offer to "turn the business around" should the Board decide to get rid of Colin was inappropriate on so many levels. Two of the key words in the title non-executive independent Director are non-executive and independent. By producing a report and assuming that you can step into a highly lucrative CEO role for even a short period of time creates all sorts of conflicts. If we vote on the departure of the CEO where will your independence be if there is a possibility of lucrative employment for you as a result of voting to get rid of him? After all you have been one of the most vocal critics of him as CEO. And what would Colin think if he found out? I now don't know if your criticisms were based on some hidden agenda, after all we never got to the bottom of why the sacked Guernsey pharmacist offered to help you "with the Donna thing". In addition there were accusations of bullying by all the executive, without evidence. You frequently come up with unproven allegations. You run businesses on facts, not the tittle-tattle of disgruntled employees with an axe to grind. You rarely challenge financials. Sometimes you ask questions where the answers are within the Board Pack. Now that I am suspicious of your own personal agenda it will affect our working relationship. Was

your most recent email another step on your quest to consult on running the Society? I just don't know. In any case it was not particularly helpful. It will be one of the first emails the new Directors will open and it paints a very negative picture of Colin. Your input into Colin's appraisal painted a picture of a man with absolutely no redeeming features - even the worst manager in the world would have some positive features. Furthermore you have constantly claimed about Colin not being there and being distracted yet as soon as he is signed off you ask for an emergency meeting as the Society will fall apart without him. Even your suggestions are flawed. You promote David to CEO - why? He is struggling to get all his CFO work done - what does this actually achieve? Did you promote him when Colin goes on three weeks holiday as he has done in the past? Of course not. We then demote the CFO after a few days and make the COO the new CEO. Again would we not be best to allow the COO just to get on with his job?" 363. The email continued and included the following: "You make allegations you cannot substantiate. But worst of all your somewhat ludicrous belief that you could turn the business around and that we would employ you in a role you have created without recognizing the extreme conflict of interest. I believe that you should seriously consider your position on the Board because

I have a moral duty to expose your agenda if you do not." 364. On 3 June, Mr MacLeod wrote to Mr Shenton which included the following: "Thanks for sharing the Paula email. Hopefully, she acts with conscience. Not just for my sake. For everyone's. ..... Whilst it's easy to be flippant about it, this stress is the strongest thing, it's almost like a rubber band had been holding everything together, then became too taut and under extreme pressure, snapped. My brain can't shake the sense of injustice and whirs constantly and I'm waking multiple times every night with sweats . The doctor said that I would likely need a long time to put everything back together so you may need to entertain the possibility of a prolonged absence. When my head gives me some space to concentrate on this prospect I'll offer some advice . In the meantime, I am keeping a distant but watching brief. It's necessary that I maintain my availability to intercept on anything critical. Despite the fact that I have no redeeming features ...." [emphasis added] .

365. On 2 June, Mr Shenton also wrote to Ms Carnegie. This contained the following: "You are correct that all Directors are liable, and this includes Colin. If you were a CEO and Director, the only executive Director on the Board, and the other Directors decided to limit the flow of information to you, and make decisions without telling you, how would you feel? Certainly, constructive dismissal. If a non-executive Director decided to change the reporting line of junior secretarial staff, your own pa, without any contact with you or the executive then how would you feel. How will the executive staff feel that Paula is now organising the Society. It is not up to Paula to change Kellie's reporting line, nor make a token gesture of making David "CEO for a week" so when he is demoted he and Chris know where they stand. I agree that the situation is urgent and I am monitoring everything closely. I'm very worried that any knee-jerk reaction, or further attempts by Paula to run the Society, will be disastrous. A copy of Paula's email has been sent to Colin as he is still a Director and still the CEO. She should not have excluded him from an email of this nature, nor should she have once again stepped over the line." 366. On 5 June, Mr Shenton emailed Ms Williams. He was firstly critical of the actions of RemCo as follows: "Last November you, as part of RemCo were tasked to urgently

undertake two tasks (Refer Remco minutes November]. One was to urgently get a consultant to look at the culture of the organisation. The second was to urgently get a consultant to look at PRP. Over six months later and nothing has been done. The executive are obviously aware of this inaction and it does not help matters when we are criticising them for failing to deliver. I'm stuck in the middle of all this. It would have been very useful at this time if both of these actions had been done." 367. He also stated: "I have had some communication with Colin and I fear he may never come back as my synopsis is that he has had a complete mental breakdown. Yes, our role is to hold him to account - but this must always be evidence based - and my loyalty is to the Society." 368. The external audit report from KPMG on expenses (see paragraph 335 above) was dated 19 June and contained the following findings: (i) The Co-op should consider automating the expense claim submission process from end to end; (ii) The employee should be encouraged to make use of mobile receipt scanning applications; (iii) The archive process should be reviewed and moved to an electronic document management system; and (iv) The Co-op should also consider reviewing its existing GDPR policies and procedures 369. On 22 June 2019, Mr MacLeod, through Messenger, messaged Dr Buture . Dr Buture was one of the doctors at

the medical practice then run by the Co-op. Mr MacLeod's message stated as follows: "Hi Marcelle, Sorry for contacting you on here. You may have seen/heard I've been signed off having snapped under a considerable amount of strain at work. My question is whether I should see you for a follow up or if you feel conflicted and would rather I went elsewhere? My current note expires next week and will need extending I think. I trust and value your judgement but would understand if you wanted me to go elsewhere. If you're happy to see me perhaps it would be better if you came to me? Best, C" 370. On 30 June 2019, a further Board meeting took place. In the Second WhatsApp Group on 27 June, there are a series of messages about the meeting which included the following exchange: "[27/06/2019, 15:34:25] Jennifer Carneige - Chris is just checking the rules re voting. Alex won't be at the meeting on Sunday and therefore has no vote [27/06/2019, 15:34:53] Paula Williams - How many do we need? [27/06/2019, 15:35:19] Jennifer Carneige - 4" 371. Later the same day at 16.01, Ms Carnegie sent the following message: "[27/06/2019, 16:01:06] Jennifer Carneige - When is Ben talking to Sue? Is he going to invite her to take Richard's spot on the Board?" This was a reference to Sue Ryde coming back on the Board of the Co-op following the resignation of Mr Le Tocq.

372. On 29 June, the Second WhatsApp Group through Ms Carnegie reported that Mr MacLeod had been signed off until September.

373. On 30 June, a Board meeting of the Co-op took place, where Mr Shenton, Ms Carnegie, Ms Champion, Mrs Clark, Mr Le Tocq, Mr Refault and Ms Williams were present. Mr MacLeod and another new director gave apologies.

374. Paragraph 1.2 of the minutes if the Board meeting required conflicts of interests to be declared. No conflicts were declared.

375. In part 2 of the minutes which contained observations from Mr Shenton, Mr Shenton then suggested that the non-executive directors met in-camera. The session lasted from 9.11 to 10.40. Mr Lintell joined the in-camera meeting at approximately 10.10.

376. It was during this in-camera session that the Board resolved to replace Mr MacLeod as CEO. There are no minutes of the in-camera session.

377. However, in part 3 of the minutes it was recorded that, during the in-camera session, the Board: "( i ) did not intend to appoint an Interim Chief Executive Officer as the length of CM's absence was currently uncertain and the EMT had managed the business effectively in CM's absence to date; and (ii) was encouraged by the EMT's positive response to this difficult situation and invited them to continue to manage the business collaboratively pending further news regarding CM's health and likely return to active duty." 378. The minute then continued as follows: "PW said she felt CM should be left to recover his health and should not be burdened with access to his Society e-mail account during his absence on medical grounds. MC counselled against that course of action, which he and DR felt may reflect badly on the Society. BS said that he would like legal advice on how the Society could best exercise its duty of care towards CM generally and invited CL to obtain such advice for his review." 379. Part 7 of the minutes set out management response to the KPMG audit findings. This included the following statement: "DR said that the inaccuracies within KPMG's Audit Finding's Report in relation to ATM reconciliations and other matters could have been resolved if KPMG had engaged in a proper dialogue with the EMT, rather than simply filing their report the evening before it was to be reviewed by the Board." 380. Mr Le Tocq also noted with surprise that since the 5 May Board meeting, KPMG had confirmed their willingness to continue serving as the Society's auditor.

381. Part 14 of the minutes confirmed the re-appointment of Ms Ryde, and paragraph 15 set out the composition of RemCo which was made up of Ms Carnegie, Ms Jill Clark, Ms Champion and Ms Ryde. The meeting concluded as 15.23.

382. Following the meeting, there were further WhatsApp messages with Ms Jill Clark being added to the second WhatsApp group. At 17.27, Ms Carnegie emailed the following: "[30/06/2019, 17:17:27] Jennifer Carneige - Ball already rolling with lawyers. Initial advice on Wed and then hopefully a F2F meeting in London before Remco next week." 383. This message was about removing Mr MacLeod based on the Board resolution to replace him, but Ms Carnegie in evidence could not recall any more detail about which lawyers were instructed.

384. On 5 July, Mr Shenton circulated an email to the Board setting out the ongoing arrangements, including that any item which required the CEO's approval should be brought to his attention. The email also set out responsibility for various issues, with Mr Lintell being allocated responsibility for litigation.

385. On 18 July 2019, Mr Shenton wrote to Mr MacLeod as follows: "The Society is concerned to ensure that in circumstances where you have been signed off until 2nd September 2019, your email access and remote access to the Society's computer systems generally should be suspended in order to allow you to fully focus on your recuperation. We will take steps to ensure that work related emails which are sent to you are passed on to other colleagues to deal with in your absence. If there is any personal information you have stored on the Society's systems that you require access to, then of course please do not hesitate to contact me." 386. We address the significance of this later in this judgment.

387. On 22 July, Mr Shenton met Mr MacLeod at Mr MacLeod's home. Mr MacLeod recorded the discussion. While the transcript is not easy to follow, during the discussion Mr Shenton explained that while he had signed the letter of 18 July, it did not come from Mr Shenton but came from the Board.

388. On 30 July 2019, Mr Lintell circulated an email to the Board directors, apart from Mr MacLeod. This used their home email addresses. The email firstly referred to a meeting that had taken place on 26 July and key actions agreed at that meeting. It also referred to subsequent discussions with Richard Sheldon of Appleby and Michael Burd of Lewis Silkin ("Mr Burd") who had both given legal advice to the Co-op.

389. The emails summarised the current position as inviting Mr MacLeod to discuss a compromise agreement at a meeting held by the President, supported by an external adviser.

390. The same email also set out certain actions agreed on 26 July, which included delegating to Mr Lintell the responsibility for obtaining legal advice.

391. The email concluded as follows: "May I please remind everyone to keep correspondence on this matter to a minimum, to be as discrete as possible, and to only use this address when communicating with me. All our correspondence (other than with Appleby) is potentially discoverable. This address is used for confidentiality." 392. On 31 July, Mr Lintell sent an email summarising the advice received from Mr Sheldon of Appleby as follows: "1. There is no absolute requirement for us to obtain an independent medical report before speaking to the subject, and Richard concludes that he would be content for us to proceed without an independent medical report; 2. The risk of proceeding without a medical report is rated as 'low', provided the meeting is handled tactfully (which would be the case in any event); 3. Obtaining such a report is likely to take 4 to 8 weeks, assuming the subject even agrees to undergo the necessary medical (which I regard as unlikely); and 4. The Society cannot stop the subject from returning to work after 2nd September 2019 and surprisingly we cannot compel the subject to undergo a medical check before returning to work. In conversation Richard reminded me that we have no contractual right to place the subject on 'garden leave' and that if we did so, without his consent he would be able to sue for constructive dismissal, and would win. So, if we wait much

longer these negotiations will have to be conducted with a CEO in office, which is neither attractive or realistic (so we would have to suspend him pending resolution of the complaint letter) , or we would have to dismiss him, setting off a claim for unfair dismissal, which would probably lead to mediation and then ... to the possibility of a Compromise Agreement to be settled in a much more adversarial context, following a public claim to the tribunal." 393. This led to the following comment: "I believe this interregnum presents risks for the business which cannot be adequately addressed at present and would like to suggest that on balance, prompt action is the lesser of the evils the Board has to choose between. Also, it should be remembered that someone bringing a negligence claim has to actually prove their case and both Richard Sheldon and Michael Burd are of the view that this would be a huge hurdle for the subject. They also believe that the legal basis for the threatened unfair/constructive dismissal claim is "laughable"." 394. Attached to the email was part of the advice from Mr Sheldon also dated 31 July which included the following: "In this regard dealing first of all with the associated pure legal risks, as you will have seen from my original advice it is difficult to successfully bring a claim for personal injury claim for stress at work, and the risk does not

really arise until you are on notice. My understanding is that prior to his current absence, nothing had occurred which made his present absence reasonably foreseeable. Whilst you are now on notice, in the first instance I would regard the legal risk from having a conversation with Colin as low, provided of course it is handled appropriately, and secondly, from a liability perspective, you are only then liable to the extent you exacerbate his condition, not for the original underlying issues - assuming of course you are not already liable for this. As such overall whilst there is a slightly increased risk from having this conversation without the benefit of a medical report, in the wider scheme of the other issues I do not regard this as significant. .... My advice on this is that whilst you could request this, and strongly urge Colin to undergo a medical to confirm his fitness to work, ultimately this is not something you could insist upon. As such if Colin decided he wished to return, he could on 3 September 2019 (after his current sick note has expired) simply return to his office as the CEO without giving you any advance notice of his intention to do so. Obviously one downside of obtaining a medical prior to the conversation is that it will lead to delay, and you then get closer to prospect of Colin of returning to work before the conversation has taken place which is

something I believe you would wish to avoid. .... My observation from dealing with similar situations down the years is that the stress in cases of this nature is very real, but in the vast majority of cases that where an exit conversation is to take place this is done without a medical report. In part this reflects the fact that where the stress is caused by a specific issue or incident (which would appear to be the case here) that very often unless or until that underlying issue or incident is addressed the individual cannot begin to move on to an eventual recovery. Indeed from dealing with employees who have been suffering from mental health issues, one of the criticisms I have often seen levelled at employers, is that they do not always seek to deal with those issues, which then causes the employee to become isolated and that of Itself serves to further exacerbate their condition and elongates their period of absence. As such from a "human" perspective, setting aside for one moment the underlying strategy of an exit, arranging a meeting with an employee who is off on long term sick with stress as a result of a specific issue, to discuss that issue is what I would actually regard as best practice and how an employer should approach such an employee ." [emphasis added] 395. Mr Heywood during the trial sought to object to this material being referred to as it was covered by legal privilege. This objection was dismissed by the Commissioner as being far too late given that these documents had been produced during discovery and no objection had been made at the time of discovery or inspection or at any directions hearing subsequent to discovery when the point could have been raised.

396. On 31 July, Mr Shenton circulated an email to Ms Jill Clark about Mr MacLeod which contained the following: "Looking back with the benefit of hindsight Colin has been struggling for a while. At the meeting to sign off the accounts he just sat there - staring at the desk - and Mark had to pick up the meeting. Rather insensitively afterwards I told him off for not standing up for his staff. David, Mark, and Kellie have all visited him and I have asked them for feedback individually. Yes he can talk about non work related stuff - and visitors have to make conversation and talk about something - but speech is slow and considered. When work is mentioned he starts to physically shake . One person said to me that they saw him on the beach and he looked ok and have based their mental health assessment on that - a woeful understanding of depression and breakdown. I was happy for Colin's health to be assessed prior to the next step - as part of the plan agreed Friday. but we now seem to be fast tracking with no empathy or sympathy . I wish to understand why we are now taking advice from another lawyer, and why the change in advice from the Appleby Lawyer, why the deviation from the plan you agreed, and why the ultra-urgent haste." [emphasis added] 397. The same day, Mr Shenton sent an email to the new Board members which posed the following question: "You are aware of the bullying

allegations made against the Board by three members of the executive - an allegation made two hours before the CEO was signed off for stress, and the response is to sack the CEO without investigation and without a medical? Do you support this type of handling of a bullying allegation? Is this your idea of a co-operative society? I believe that the CEO should be removed for medical reasons, the rest of the Board believe it is a performance issue. Did you get the timeline you were promised? Are you satisfied with the comprehensive PR fall-out strategy that covers all possible situations? Are you satisfied that as a Director you have done all you can to mitigate the risk? Do you fully understand and anticipate the reactions of the executive team?" 398. This is the first documentary reference to the complaint made by Mr MacLeod against Ms Carnegie having been shared with other Board members (see paragraph 341 above).

399. The same message stated the following: "The credit card investigation, whilst showing a lack of process, showed no signs of fraud. There is no strongly negative appraisal on Colin's file. Step back and ensure that you are not being carried by the tide due to the strong determination of others to get rid of Colin, Mark, and David. .... With strong characters on the Board it is very easy to get carried along." 400. Ms Clark then sent a message in the Second WhatsApp Group on 1 August: "[01/08/2019, 14:09:30] Jill Clark - Morning RemCo . Sorry to trouble you with this, but I think you need to be aware that Ben has sent an email to the new directors questioning the decision to progress CM's exit on performance grounds. He has also asked us not to forward it. He is hugely defending CM's performance. I have stood firm and backed the Board majority. I have also expressed disappointment that he was not at Friday's meeting when the action plan was agreed. You need to be aware that he is not acting as a joined up Board. Jill." 401. This led Ms Carnegie and Ms Williams to reply as follows: "[01/08/2019, 15:41:18] Jennifer Carneige - Well done for standing your ground by the way and thanks for letting us know. [01/08/2019, 15:51:40] Paula Williams - Thanks for the heads up Jill. This is clearly why no progress is being made. I was concerned about this and it in no way represents how

our President should be acting! Sigh!!" 402. Also, on 1 August, Ms Carnegie emailed the Board. Although the timing of the email is dated 12.42, she was in New York. The email stated: "Greetings from New York. I regret that some intense work with a client has prevented me from commenting on this email trail until now but I had a 30 minute call with Chris on Tuesday when I reinforced my belief that our delay in this matter is putting our plan at risk. .... I see no reason for further delay. I am of the firm belief that the Chairman should lead the process as he agreed to when he was re-elected. If that situation has changed we should revisit that decision but I am assuming for the time being that Ben is prepared to fulfil his obligation as Chairman in this dire and extremely regrettable situation." 403. This led Mr Shenton to reply the same day as follows: "I am prepared to undertake the actions on the basis that - · We follow the legal advice given (risk assessment). · We follow the procedures agreed in the meeting I was absence from (time line/rationale). If you wish me to go ahead without these professional parameters being followed I shall be interested in your argument. Is there anything else you would like to change from Friday's meeting? Or any other legal advice you wish to ignore?" 404. Ms Champion also sent an email on 4 August which contained the statement " We decided as a Board to go ahead with this how many weeks ago? ". She also emphasised the need to get on with it as risk assessments, medicals and more delay would just inflame the situation even more.

405. Mr Shenton emailed Mr MacLeod on 1 August stating that " Still heavily outnumbered in my chess game but my position is getting better as my chess opponent has become over confident. He still has most of the pieces but he's leaving gaps ".

406. Mr MacLeod replied that evening at 23.34. He described allegations of " bullying and spite of autocratic proportions ", as well as he had developed total numbness in his lower left arm and his left eye pulsed incessantly, leading to the observation that he was not getting better which was not helped by the letter advising him that he had been cut from all contact with the Society, which Mr MacLeod described as " painful, demeaning and misguided ".

407. Mr Shenton replied stating that Mr MacLeod had his full support and that he did not agree with the letter of 18 July He further indicated that he was taking a proposition to the Board to sack Mr Lintell. The same message stated, " I feel really guilty that I did not notice that you were struggling and I am sure I contributed to your illness ".

408. On 4 August, Ms Carnegie sent an email to Mr Shenton which stated as follows: "It is important that you are aware that my Board colleagues and I have the impression that your heart is not in executing the agreed plan to remove the subject as quickly as possible and this is undermining the cohesion of the Board. Our email trails show that we all feel that time is of the essence and weeks have slipped by since we received legal advice in late June and agreed to press ahead." 409. The subject is clearly a reference to Mr MacLeod. The next substantive paragraph stated as follows: "If you are genuinely following through on executing this plan in a timely manner you have my fullest support. If not then the Board needs to be aware - we are looking to you as Chairman to take ownership and lead the process, which none of the other Board members has the authority to do." 410. On 5 August 2019, Mr Shenton created a document headed " Letter of complaint against a sitting director " where he decided to deal with Mr MacLeod's complaint.

411. The document noted that some of the findings of the audit which was reported to the Board on 5 May were incorrect. In relation to Ms Carnegie he stated as follows: ".... I shall need to work through the complaint to reach an opinion on this. However, I would not talk to my dog in the manner Mrs Carnegie spoke to the executive and, contrary to her observation, I do trust them. You cannot have a working relationship if there is mis-trust." 412. He did however conclude that " he would not be the last to go " was a reference to Ms Carnegie resigning.

413. This led to the conclusion by Mr Shenton that " Ms Carnegie did indeed overstep the mark, acting in a bullying fashion - somewhat supported by others - is guilty of bullying in this instance ".

414. On 7 August, Ms Carnegie circulated the medical certificates received by the Co-op about Mr MacLeod being signed off.

415. On 9 August, Mr MacLeod wrote to Mr Shenton, which included the following statements: "In an effort to focus on my recovery I have been taking cognitive therapy advice and I require you're help please. I have told that an important element is to seek to address any areas of uncertainty swirling in my mind, as far as this is possible, specifically those that led to the events that have damaged me. .... The Society has a duty of care to me. As they do all my colleagues. I find the exclusion from Society systems bewildering. contrary to any logic and, after 29 years' service, insulting. I am your Chief Executive Officer. But I acknowledge this decision." 416. On 12 August 2019, Mr Shenton met with Mr Lintell. His file note included the following: "Meeting with CL - File Note 12" August 2019 The meeting was primarily planned to discuss the appraisal of CL. Unfortunately, during the appraisal process a number of major deficiencies in performance and attitude came to light. The meeting opened with BS asking CL why he had not felt it necessary to organise the investigation of a complaint against the Board by the CEO in accordance with SATA procedures. CL said he was unaware that there were any procedures for a complaint of this nature. He requested that I stop taking notes. BS advised CL that the complaint was in fact the second one received, and that JV had previously

complained. CL said, in a very condescending manner, that JV was hardly a credible witness. BS was annoyed by this lack of respect and CL in turn got quite agitated - beginning to talk at length about what he had achieved at Toshiba and Standard Chartered - which is totally irrelevant. We then spoke about the conflicts of interest of JC and his failure to manage these. For this he gave no defence." 417. On 13 August at 14.03, Mr Shenton wrote to the Board indicating that he wanted to investigate Mr MacLeod's complaint against Ms Carnegie and attached his views. This appears to be the document dated 5 August referred to at paragraph 410 above. Mr Shenton also wanted to remove Mr Lintell.

418. In an email sent also on 13 August at 22.08, Mr Shenton also included the following statement: "The time-line of events looks terrible as there was no decision to exit the CEO before the complaint was made, Yes the appraisal was going to be bad but that's as far as it goes - no agreement to exit. It looks like we got a complaint and the subject of the complaint led the charge to exit the complainant. Chris and the Board should have handled the conflicts better." 419. On 14 August, Mr Shenton sent a further email to the Board which included the following statements: "I have given some dates to meet for next week. There was no decision to compromise Colin out of the business until AFTER the complaint and this is a problem because the complaint has not been dealt with. Jennifer took a full role in the decision when she was conflicted. David potentially has a victimisation case against the Society for her role on RemCo , as does Colin. David could potentially take his case to the Employment Tribunal whilst remaining employed - the full facts -including the bullying claims -would potentially be reported in the local media. According to advice received today if you cut his bonus to zero he will win. .... Quite frankly if this is a Board that turns a blind-eye to incompetence, bullying, complaints, etc then it is not worthy of this society. The beauty of a co-operative is that

it's very easy to remove the entire Board in a wave of publicity through a SMM. Nicola today said that HR should have been reaching out to Colin whilst he was off sick - but Chris advised against it. This will count against the Society in terms of duty of care. .... It may be inconvenient but look at the timeline below and reflect. The Board is in a precarious position and one wrong step could destroy the reputations of all Board Members. Colin is going anyway so all you are doing is putting your own reputations and careers at risk. .... It was today agreed that the investigation into the complaint against Jennifer would be undertaken by a more senior individual who has a full understanding of the pressures and liabilities of a Director rather than a HR professional who may not fully appreciate the role. This investigation will supersede my own investigation which was only undertaken because of a lack of GOVERNANCE and no desire from the Board to investigate itself (whilst ironically organising a cultural review)." 420. Attached to this email was a timeline which made reference to Ms Williams offering to replace Mr MacLeod as follows: "15/05/2019 Approached at Jersey AGM by PW who offers to step-down from Board and "turn the Co-op around" on a lucrative consultancy contract if we "get rid of Colin." Evidently has support of others." 421. The 30 June entry stated: "30/06/2019

Board Meeting. Decision taken to remove CEO through a compromise. No interest from Directors concerning complaint. Subsequently JC was asked to step back from process due to conflict. This was not done - JC would later be heavily involved." 422. On 19 August, Mr Shenton emailed Mr Refault , copied to other Board members, which included the following statement: "Colin has not been in the office since the 24" May. This is almost 3 months. We have a duty of care and should have been contacting him a minimum of every two weeks to check his recovery progress and offer the services provided through insurance. HR were told by CL not to have any contact (we are rectifying this). The lawyers, when told of CL's instruction, were astonished as we have broken just about every health and safety protocol in the book. Yes they did say to cut off his email to stop work related data flows but this did not overtake our health and safety obligations. Let's just hope this does not go to a tribunal because our chances of winning are, in my opinion, zero. Fortunately, the number of compromise moves that end up with the tribunal is extremely low. However Colin's background is HR (where he was head) so he will know every single rule we have broken and every single trick in the book." 423. On 19 August 2019, Mr Shenton wrote to Mr MacLeod suggesting a meeting.

424. However, Mr MacLeod's evidence was that Mr Shenton also warned him that same day not to attend and told him orally that this meeting was an ambush.

425. On 20 August, Dr Buture wrote a letter to Dr Miguel Garcia, a consultant psychiatrist, seeking the following advice: "Dear Colleague, Please be so kind to offer this very charming 49 year old man an urgent appointment for your review, assessment and advice. After 29 years of dedicated service to his employer, he recently had a disappointing encounter with some members of the Executive Board of the Company, where he is the CEO. This has caused him so much distress, that he has not been able to return to work for the past 2 months. He constantly feels tense and on edge and suffers with transient insomnia. Cues and reminders of work cause his mind to race ('flight of ideas') and avoidant type of behaviours, which are totally out of character for him. It almost seems that he is experiencing symptoms suggestive of Post traumatic stress disorders and I would therefore be keen for you to explore this further and offer your advice on management." 426. On the same day, Mr MacLeod emailed Mr Shenton twice saying that he was working on his recovery and having two strands of therapy. He also stated that his doctor believed he had post-traumatic stress disorder ("PTSD") directly related to work.

427. On 21 August, Mr Shenton emailed Ms Carnegie about Mr MacLeod's complaint as follows: "He has now indicated that he wishes the compliant to be pursued formally in his absence and indeed asserts that our failure to deal with this matter is exacerbating his medical condition. He has been signed off until November and has asserted that his medical condition is directly related to the working environment and the matters outlined in his complaint and that our failure to deal with this is exacerbating his illness. Again, I had hoped to be able to engage with him in person to discuss his wishes but this route for now appears to be closed to us. In terms of dealing with Colin the next step will be to seek to obtain a formal medical opinion which will hopefully give the Society greater clarity on his prognosis and enable the Board to start making decisions for the future. .... I have worked with our legal representative and our HR consultant on this matter and they have identified a suitable third party to investigate who is not known to Colin or you or indeed me or conflicted in terms of any dealings with the business. Once I have spoken to the Board, the investigating officer will take over the handling of the complaint and determine its scope. He will be in touch with you directly to take both of our statements as well as any others named as witnesses where he feels it

appropriate. He will then present his findings to the rest of the Board, Colin and you." 428. Also, on 22 August, Mr MacLeod wrote to Mr Shenton stating as follows: "I have become aware of some issues and fear that, by totally excluding me from the business of The Society, against medical advice, the Board have denied me the ability to carry out my legal obligations as a Director, even in a severely limited capacity." 429. On 22 August, Mr Shenton wrote to Mr Lintell suspending him for reasons set out in an attachment to that letter.

430. On 23 August 2019, a meeting took place at the Grand Hotel involving all the directors apart from Mr MacLeod. Ms Williams attended by phone. The minutes of this meeting are extensive but ultimately led to the resignation of Mr Shenton as President. This was led by Ms Carnegie. Mr Shenton was then replaced by Ms Williams as President.

431. In relation to the minutes of this meeting, it is not necessary to set out the full range of the discussions that took place leading to Mr Shenton's removal. The following extracts are pertinent.

432. First, in relation to Paula Williams, the minutes stated: "So, she did say she could help out for a couple of months purely through the transition. She felt she had been probably a bit naive by suggesting this but they never even spoke about things like this so it was just an offer as the skills were there to help the Board out and this was always the only intention of what it was supposed to be." 433. The minutes also stated when Ms Jill Clark asked to see a document relating to this discussion: "PW advised that yes she was not adverse to everybody seeing that document. JC advised that it was an email and just wanted everybody to be aware. CC advised that she asked Paula to do the report as this would make it easier for her to understand what Paula was suggesting. SR advised that the impact of this was that Paula received a very shocking email in return from Ben asking her to stand down. Paula will provide the document for Board members to see, she gave a description of contents that are in the report." 434. However, no such document was ever produced in discovery.

435. Following the meeting, in the Second WhatsApp Group, Ms Carnegie messaged as follows: "[23/08/2019, 16:41:50] Jennifer Carneige - Well done today! Talked to Appleby's about all the stuff and they have given a clear way through which I will write to you about." 436. That evening, Mr Shenton sent a draft email to Mr MacLeod about Mr Shenton stepping down both as President and director.

437. On 27 August, Mr Shenton texted Mr MacLeod which included the following "....after this I look back at the way JC was braying you in that Board meeting in a completely different light. Basil, Debbie's dog should not have been treated like that - and neither should you and your executive colleagues have had to face the screaming JC ". A further text was sent by Mr Shenton the same day where he stated " I did get it wrong at times - I admit that. I over-estimated the strength of evidence over opinion and group think - group think won. I also failed to see the pressure you were under. I also tried to sort out a solution by playing both sides ".

438. On 27 August, Mr Shenton sent an email stating that he decided to resign as President and director of the Board which was copied to all Co-op accounts.

439. This led to an exchange of emails between the remaining Board members. Ms Jill Clark's email sent on 27 August at 16.35, contained the following: "I agree with your points - · Would be keen to hear Tony's report on Chris, even if this does not have Chris' view. · I agree that an independent investigation of CM's complaint is needed, however who chose Lee Ingram? Sorry to be cynical but in light of the 'disagreement with the Board' I think we need reassurance that this will be an unbiased investigation and I would like to know what briefings have been held so far. · An update to the EMT straight after Sunday's meeting and role changes would be good. This will give them the reassurance that we need to have business as usual and this should be a cause for distraction. Could we draft something to approve on Sunday? Perhaps MC can draft this as it should really come from him after approval from us." 440. Ms Carnegie replied to this email later the same day. Her reply included the following: "I am grateful for recognition that I cannot advise the Board to halt an investigation into me personally. I would like to raise this with the Board formally at the forthcoming meeting, and would respectfully request that action is suspended until then." 441. On 27th August, Mr Shenton wrote to Mr MacLeod informing him of his resignation. Also, on 27 August, Ms Carnegie, through Mr Rees,

sent a communication on the behalf of the Board to Mr Shenton which included the following: "Whilst in private we are prepared to support your personal narrative because we feel a soft landing is in all of our interests, if there is any mention of your pejorative view of your Board colleagues (I have stood down due to a difference of opinion with Board colleagues over some core policies and standards) in the media, including your personal column, rest assured the Board will not hesitate to set the record straight. We all hope sincerely that will never be necessary." 442. This exchange was also forwarded by Mr Shenton to Mr MacLeod, where Mr Shenton described Ms Carnegie as " a first rate bully ". September 2019 to December 2019 443. On 2 September, Ms Williams emailed the remaining Board members which included the following statements: "1. The people involved in the investigation that the below email is to be sent to (without JC's instructions) will be:.... .... With CM - I have asked for Carol, Sue (and will ask Jill) to join me in spear heading this situation to a conclusion. I will be contacting a Marc Burd from Lewis Silkin to help us build a strategy for success (as I believe we need some help in this) so that we can move this situation along." 444. We observe in view of the length of this judgment that Mr Burd from Lewis Silken is the same Mr Burd who had already given advice to the Co-op on the dismissal of Mr MacLeod as recorded in Mr Lintell's email of 30 July (see paragraph 388 above).

445. On 3 September, the Co-op made an announcement that Ms Williams had been elected as the new President. The email also contained a notice explained that Mr Cox had been appointed acting chief executive while Mr MacLeod " is away from the business on sick leave ". This announcement was sent without any input from Mr MacLeod.

446. On 13 September 2019, Ms Williams wrote to Mr MacLeod stating that the Society would now proceed to investigate the matters that he had raised in his letter of complaint dated 24 May 2019. The letter contained the following paragraphs: "Given the seniority of your position, and the fact that you are complaining about a fellow Board member, it is important that the investigation into your complaint is handled by a suitable third party. I have therefore engaged Richard Miskella, a partner in Lewis Silkin LLP based in London, (the "Consultant") to conduct the investigation. The Consultant has had no dealings with the Society prior to his engagement and is sufficiently experienced to conduct an investigation involving some of the most senior people within the Society . I confirm that although you are bound by a continuing duty of confidence in relation to the Society's affairs, both as a Director and as a member of the Executive, you are of course able to disclose any such matters to the Consultant, as necessary for the purposes of the investigation. The Consultant will contact you shortly, although his contact details are set out below to assist you should you wish to contact him following receipt of this letter. However I must stress that it is for you decide whether you feel well enough, or otherwise wish to play an active part in the process, or whether you wish to engage

in the process. Naturally, the Consultant or I will let you know the outcome of the investigation. In the meantime, please continue to focus on your recovery and let me or Ivone Milton in HR know if you need help accessing any of the support or assistance available to you under the Society's various schemes and policies. Although you have access to all Board papers as a member of the Board, you should feel no pressure to do any work while you are unwell. Please be assured that, in your absence, the rest of the Executive and Senior Management Team are working with the Board to ensure that the Society's affairs are being advanced." [emphasis added] 447. This email was sent following a Board meeting on 1 September 2019. The minutes of that meeting have not been produced.

448. An earlier draft of this letter had been prepared by Mr Burd and sent to Ms Williams on 11 September. The sentence outlined above did not appear and instead contained the following: "The person appointed to carry this out is Richard Miskella, a partner in Lewis Silkin LLP based in London. Lewis Silkin LLP have had no dealings with the Society prior to this matter." 449. This earlier draft was different because it stated that Lewis Silkin had had no dealings with the Co-op prior to being instructed to carry out an independent investigation. However, that was not true because Mr Burd had been spoken to by Mr Lintell at the end of July 2019 as set out above. The final version was therefore changed so that Mr MacLeod was not aware that Lewis Silkin, through Mr Burd, had already given legal advice about his dismissal.

450. In addition to drafting the letter for Ms Williams to send in relation to dealing with Mr MacLeod's complaint; Mr Burd, according to the evidence of Mr Lintell, was present at the first meeting when Mr Lintell was introduced to Mr Miskella and his team and instructions were given. Mr MacLeod was also unaware of this.

451. Ms Williams sent Mr Miskella a letter of instruction on 26 September 2019. In relation to this letter (i) The Co-op made it clear that Lewis Silkin were not being asked to decide the outcome of Mr MacLeod's complaint. Rather, the report would be used to inform that outcome. (ii) Section 4 of this letter suggested that Mr Miskella would initially want to speak with a number of individuals. Not included in that list was Ms Williams herself. (iii) Part 5 of the letter determined what documents Mr Miskella was sent.

452. Also on 25 September, there was an exchange of correspondence between Ms Williams and Mr Lintell about the role he should play in the investigation. Ms Williams asked Mr Lintell whether he should be included in the investigation or would he be conflicted.

453. Mr Lintell replied that he was not conflicted as follows: "On balance I suggest that I am not conflicted by virtue of my role. I was at the meeting in question, witnessed the discussion and minuted the proceedings and have the same first-hand knowledge of the events as anyone else present." But he then added the following: "So, I'm not sure what I can add in particular." 454. This comment led to this paragraph: "May I suggest that I'm not listed, for now and that the same approach is applied to Ben because he said little or nothing in relation to Jennifer's questions and observations at the meeting; also he may be a 'hostile witness' as it were, given recent events. It's a difficult call because one would automatically include the Chair of the meeting in such a case but I think my suggested approach is right." 455. Ultimately, Ms Williams and Mr Lintell were interviewed after everyone else shortly before Mr Miskella had reached his conclusions.

456. On 26 September, Mr MacLeod sent an email from his personal address to Ivone Milton. This followed on from an email dated 2 September 2019 where he was asking for the employee guidebook and details of the PHI policy. What emerged at trial was that the earlier email had not been responded to because emails from Mr MacLeod's home email had been blocked.

457. Ms Milton explained this in her email to Mr MacLeod of 27 September. She also sent Mr MacLeod the information requested.

458. Ms Milton went to see Mr MacLeod at his house on 4 October. Her notes included the following: "CM said that he was feeling angry and disappointed about how the Society were treating him and that he did not feel the Board cared about his wellbeing. CM added that he has given his life to the Society and that the Society was his world and that he struggles with the concept that in his hour of need there is no support. CM said that he did not want to go into the ins and out as it would be unfair on IM. IM encouraged CM to reach out to the new President PW and that we had been advised by Kelly early on that CM did not want contact. IM added that it may help to talk through with the PW how he is feeling and what is causing the feelings he is describing to hopefully offer him some clarity." 459. The note concluded by Ms Milton recording: "IM encouraged CM to reach out to PW once again and CM added that he has never said he would not talk to anyone." 460. On 4 October, Ms Williams sent an email addressed " Hi ladies ". This email was certainly sent to Ms Carnegie and Sue Ryde who was copied into the reply. It is not clear whether it was sent to Ms Champion.

461. Ms Williams stated: "I just wanted to give you both a heads up that CM is making noises about coming back to work. Chris thinks we need to get ready with an agreement as we may need to deal with this within the next two weeks. I have asked him to contact Mike Burd regarding advice and getting ready." 462. Ms Carnegie replied the same morning and stated as follows: "I spoke with Chris about this yesterday and absolutely agree that we need to have a plan to deal with this so asking the lawyers to support is a good call. It would be good to get the initiative back on the CM situation anyway." 463. The Lewis Silkin investigation was carried out by Mr Miskella who interviewed each of the people and produced notes of their interviews.

464. On 31 October, Ms Williams wrote to Mr MacLeod enclosing a return to work letter requesting an update and offering a coffee and to make herself available.

465. Mr MacLeod replied on 1 November and stated as follows: "I regret that I am as yet unable to return to work. Whilst I continue to feel better, I am not where I need to be." 466. On 11 November 2019, a document was prepared called ' Re the allegations made by Mr Shenton against Mr Lintell ' and the report prepared by HR Now. All the allegations were dismissed. One of the allegations was that there was inadequate governance of personal business expenses. This led Ms Champion to state as follows: "The failings highlighted were that of the Finance department - those responsible for actually paying the expenses and those who had the ability to enforce / control the expense policy." 467. On 14 November 2019, Ivone Milton again met with Mr MacLeod. Her note of this meeting included the following statement: "CM commented that he was making progress but that recent letter received by Society's appointed investigation into his Grievance has impacted him adding that he was shocked with some of the content he has had to read referring to it as "horrible things that have been written". CM went on to add that his therapist advised CM not to continue with this process and it was having a negative impact on his recovery." 468. Mr MacLeod also asked if the Co-op would cover additional treatment that his therapist had recommended and he was referred to the AXA PI scheme.

469. On 28 November 2019, Mr Lintell sent an email to Alex Fearn, another director who was then head of audit and risk, in relation to expenses. Mr Lintell included the following statement: "( i ) I reported my concerns about the breakdown of this process to David Rees on successive occasions, which led to A&R and R &R commissioning the IA report (ii) In view of certain factors you'll be aware of I suggested that the Committees should commission a more "forensic' investigation and report (iii) Although KPMG were commissioned to do a further IA report on expenses their terms of reference were not at all what was expected." 470. On 28 November 2019, Lewis Silkin produced their report. In its executive summary, Mr Miskella expressed the following conclusions: "I believe that the catalyst for the Complaint was two comments by JC. These were given particular emphasis by CM in his written representations, and were also referred to by DR as the most significant to him. The first was also significant to BS: 1. The Board did not trust the EMT; and 2. After RLT resigned from the Board, JC said 'he won't be the last to go.' I believe that JC was expressing the view of a number of directors when she said the Board was not trusted. This trust issue formed over a long period, and its origins predate the commencement of JC's directorship. I also believe that the comment about others leaving

the Board was misunderstood by CM and DR, and that JC was saying she might feel obliged to resign if things did not improve. BS and MC share this view, and only CM and DR thought it related to the EMT. Having carefully considered the views of all interviewees, I have not upheld any of CM's allegations, for reasons which I explain in section 5. However, in brief, I believe the evidence of MC and DR. They drafted an earlier version of a letter to the Board with CM, which expressed concern about the lack of trust between the Board (not JC in particular) and EMT, and proposed mediation to resolve the issue. Both DR and MC clearly found the Board Meeting very difficult, but - 1. MC felt that all of the issues raised in the Board Meeting were fair; and 2. DR was principally concerned by the two comments noted above, which I am satisfied did not amount to bullying or a breach of JC's duties as a director of the Society. DR also expressed that he was particularly disappointed that the Executive "weren't given the opportunity to respond to any of the questions that [JC] had directed towards the auditor and his responses" which would have allowed the Board "to make a balanced judgment based on the responses that they receive." However I believe that, at their highest, these concerns do not amount to a breach of any duty owed by JC to the Society." 471. On 19 December, Ms Williams wrote

to Mr MacLeod informing him of the outcome of the review by Lewis Silkin of his complaint. Her letter stated the following: "Richard concluded his investigation at the end of November, and I had the opportunity to review his report earlier this month. It is very comprehensive and clear. Rather than seek to summarise his conclusions, and the basis for them, I enclose a copy of his report (without its appendices, which I do not propose to provide). Based on the factual findings in the investigation report I find that the complaints set out in your 24 May letter are not made out, and therefore I do not uphold them." January 2020 - Mr MacLeod's dismissal 472. On 7 January 2020, Mr MacLeod wrote to Ms Williams stating that he had been prescribed a treatment and asking for his email to be reconnected from the beginning of February. He also suggested a meeting " to review Society performance in the context of the strategic environment, to explore and address all of the circumstances that have been diagnosed as having led to my illness, and to discuss my return ".

473. Ms Williams replied by letter the same day which included the following paragraphs: "In light of the duration of your absence, the apparent seriousness of your medical issues over that extended period and our health and safety responsibilities to you, we will need to establish your fitness to return to work before you may do so. For this reason I do not feel that it would be consistent with our health and safety obligations and general duty of care to re-connect your Society e-mail account at this stage. In view of all these circumstances, I have arranged, subject to your consent, for an independent occupational health practitioner to carry out a psychiatric assessment in order to form a clearer picture of your psychological difficulties and to report on your fitness to return to work. This is as much to protect you as it is for the Society. .... I would be happy to meet you for a coffee but do not think that it would be appropriate for me to brief you on the current status of the business in view of your medical condition. I must re-iterate that you are to remain away from work until I have received independent medical verification of your ability to return to work safely." 474. On 20 February, Mr MacLeod met with Peter Roffey who, in a follow-up email, stated the following: "To be honest your best course of action really does depend on how fully recovered you are. You

struck me as completely the old Colin last night but from some of your comments that recovery has been speedy, recent, and from a quite a difficult place. So while I don't doubt the fullness of your recovery I don't know how fragile it might be. I'm not sure if you do either but you are probably a better judge than me." 475. On 3 March 2020, Mr Lintell sent Mr MacLeod a letter from Ms Williams dated 2 February which stated as follows: "As you will be aware, the Society has a PHI policy under which it may make an application for employees who are absent from work on long term sickness absence to receive a specified percentage of their basic salary following an absence of 6 months or more. The start date of your absence from working duties was 28" May 2019. We are therefore writing to ask you whether you wish the Society to make an application for PHI on your behalf." 476. The letter then asked for a reply by 12 March.

477. Mr MacLeod replied asking that he could have until 18 March to respond. He also informed Ms Williams that his sick note had just been extended to 27 April.

478. On 17 March, Mr MacLeod emailed Ms Williams and stated as follows: "My medical advice is not only that I am to make a complete recovery, but also that I am on the verge of returning to work. Therefore, I think an application for PHI would be completely inappropriate. But thank you for checking." 479. On 18 March, Mr MacLeod emailed Dr Miguel Garcia, consultant psychiatrist, who was treating Mr MacLeod and asked the following: "As I think I mentioned, I have been asked to undertake an 'independent' Occupational Health Assessment in advance of my return to work. I have been advised that it would be very helpful to have a report from you indicating your belief that I will be fully ready to return to work at the end of my EMDR treatment. It would help if it illustrated the gradual improvement in my condition since I first saw you. It will also need to illustrate your unique knowledge of the circumstances that led to my illness and the fact that in your opinion I have made a full recovery. Obviously, you should feel free to include whatever you think relevant." 480. Also on 18 March, Ms Williams invited Mr MacLeod to a virtual meeting on 25 March to discuss Mr MacLeod's plans. It is important to remember that by this time the Covid outbreak had occurred and the UK was about to enter lockdown.

481. Mr MacLeod replied, indicating he was happy to meet Ms Williams but he could not confirm the date or time because of Covid.

482. On 23 March, Mr MacLeod offered alternative email dates. No meeting ever took place.

483. On 27 March 2020, Mr MacLeod received a letter of termination, the first paragraph of which stated as follows: "This letter is to notify you that with effect from 31" March 2020, we have decided to terminate your employment with The Channel Islands' Co-operative Society Limited (the "Company"). Your contract of employment permits the Company to place you on garden leave (please see clause 13). In accordance with clause 13 the Company has decided to place you on garden leave for the full period of your notice. You will be paid your salary and benefits in the normal way until your notice period (which is 9 (nine) months') expires on 31 December 2020. Therefore, your last day of employment with the Company will be 31 December 2020. For the avoidance of doubt you are not required to attend nor are you permitted to attend the Company's offices during this time unless we request you to do so." 484. By 8 April 2020, Mr MacLeod stated that he intended to appeal and asked about the process. Mr Lintell replied on Ms Williams' behalf stating that the Co-op would not be running an appeal process.

485. On 25 June 2020, the Co-op wrote to Mr MacLeod terminating his contract with immediate effect and making a payment in lieu of notice.

486. Mr MacLeod brought proceedings before the Tribunal which led to a settlement agreement dated 8 March 2021. Clause 4 of that agreement is material to the present dispute and provides as follows: "(4) Subject to the terms of this Agreement, the Payments referred to at clauses 2[a], (b) and 3 (above) are made in full and final settlement of all and any claims falling within the jurisdiction of the Tribunal, whether past, present, future or contingent that the Claimant has, or may have brought against the Respondent and/or any Associated Company of the Respondent and/or any of their respective officers, partners, shareholders or employees, in the Tribunal Proceedings." Other relevant medical records 487. This part of the judgment sets out relevant extracts contained in medical records to the extent that we have not already referred to these.

488. When he was signed off on 28 May 2019 by Dr Ellis, the medical notes included the following: "Problem stress related problem. History "stress at work, not coping, not sleeping - less than 3 hours per night, feels toxic environment in Boardroom. Ordered various things under the history including "feels toxic environment in Boardroom" and "feels he needs to take time out, thinking of taking 3 months or more"." 489. Mr MacLeod was also described as looking tired, unshaven and tremulous.

490. On 28 June 2019, Mr MacLeod was signed off by Dr Buture until 2 September. She noted " Ongoing insomnia and flight of ideas. Also PTSD-like features ". She also referred Mr MacLeod to Dr Garcia. The letter was ultimately sent on 20 August (see paragraph 425 above).

491. Dr Garcia saw Mr MacLeod on 3 September. The notes stated that Mr MacLeod was tired looking but cooperative and his insight and judgment were intact. However, his notes also stated that Mr MacLeod was suffering from an " adjustment reaction ". The notes then stated, " Underlying unresolved trauma ".

492. Dr Garcia saw Mr MacLeod again on 24 September, which notes included the following " Talks at length of options, reconfronting work and future. Appears motivating to return to work " and " IMP some improvement. Risk of depression if takes too long to resolve work issue and if continues to drink alcohol ". Cognitive Behavioural Therapy ("CBT") strategies were then discussed to manage Mr MacLeod's thoughts.

493. Dr Garcia then saw Mr MacLeod on 24 October. He had been contacted by the lawyer of the Co-op wanting to investigate his complaint and had also met his own lawyer. Mr MacLeod was described as " mildly unkempt, tired, talks at length of work related struggles. Mood up and down. Anxious. Not suicidal. No psychotic judgment intact ". The meeting concluded " Length of symptoms suggest worth trialling anti-depressant / anxiety medication " and a drug was tried.

494. On 5 November, Dr Buture signed Mr MacLeod off for a further eight weeks. Her notes recorded " Stress continues " and " ? Low mood / ? clinical depression ".

495. On 11 November 2019, Mr MacLeod again saw Dr Garcia who noted that Mr MacLeod was feeling better and looking brighter. The same notes also recorded that Mr MacLeod's lawyer had advised him to leave his job and to negotiate a settlement. The impression of Dr Garcia was " Noticeable improvement, more positive and motivated. However ongoing uncertainty and stresses have negative impact on his recovery ".

496. On 2 December 2019, Dr Garcia noted that Mr MacLeod at times was feeling tired and experiencing night sweats " likely related to ongoing stresses ". Dr Garcia therefore discussed EMDR to address his past and current traumas.

497. On 8 January 2020, Mr MacLeod saw Dr Buture . The history noted as follows: "Still under care of Miguel Garcia and a counsellor - due to commence EMDR course this month for 2-3/12 to return to work in 8 weeks - functionality good." 498. A medical certificate was issued until 16 March.

499. On 20 January 2020, Mr MacLeod again saw Dr Garcia. He reported having a good Christmas and that he was enjoying the EMDR sessions. The notes also stated that Mr MacLeod had got back in touch with the Co-op to let them know that he was ready to go back and planned to return as soon as possible. The plan was to agree a trial of EMDR to target unresolved trauma. The impression of Dr Garcia was recorded as follows: "Unclear whether improvement is related or not to trial of medication. Further delay in getting closure re work likely to undermine recovery." 500. An EMDR session took place on 27 January 2020 with Dr Garcia. Dr Garcia's notes of this stated as follows: "EMDR session spent in identifying memory to target run-up to Board meeting - feeling angry and believing not good enough. Took longer than usual as there was some resistance and avoidance likely to limit success of EMDR. Discussed need to let mind free flowing and to engage meaningfully." 501. On 18 February 2020, while Mr MacLeod was recorded as stating that he felt positive, Dr Garcia's impression was " underlying trauma and its negative effect in his self-belief still evident ".

502. On 25 February 2020, Dr Garcia noted " More engaging but still longer to move through sets. Themes coming up around his initial response to work trauma by taking victim role - not uncommon ".

503. This was the last occasion when Mr MacLeod saw Dr Garcia. Appointments were made for 3 March and 8 April 2020 but were cancelled.

504. On 5 March 2020, Dr Buture again saw Mr MacLeod and extended the medical certificate until 27 April. The history noted that Mr MacLeod was continuing counselling with Dr Garcia and a private counsellor.

505. The private counsellor was Dr Guahara Dominguez, a consultant psychotherapist and a consultant CBT therapist. In a letter dated 24 March 2020, she set out that she had been seeing Mr MacLeod since 11 December 2019. Her letter of 24 March 2020 stated as follows: "Our intervention was specifically tailor made to support him through these issues and he has made significant progress. He has gained a number of strategies and tools and he has worked hard in installing a different way of appraising information and experiences. This has led to the necessary cognitive restructuring and healthy integration of the job-related experience that had become a struggle when Mr MacLeod was initially assessed. In my professional opinion, Mr MacLeod has achieved full recovery and I believe he is capable and ready to go back to performing according to his high standards, that he has often spoken about during the sessions. I am aware that he is returning to a highly demanding role as a CEO of a large business in April 2020 and at present I don't have any concerns about him presenting with any difficulty that could become an obstacle for a normal and healthy return to work." 506. On 9 June 2020, Dr Garcia wrote a letter to a Mr Wakeham where he diagnosed Mr MacLeod's condition as follows: "Colin presented with mixture of marked depressive symptoms which included low mood, decreased energy, lack

of enjoyment, broken sleep and poor concentration together with PTSD symptoms flash backs, nightmares and hyperarousal. His presentation was triggered by trauma experienced at his work where he described having been bullied." 507. He then stated: "Colin engaged meaningfully with his treatment with included medication (escitalopram 10mg) and combination of therapy (CBT and EMDR) after which he made a remarkable improvement after 6 months." 508. On 4 November 2020, Dr Buture again referred Mr MacLeod. Her letter stated: "On review today, he appears clinically very low in mood and has ongoing stressors rendering him unable to get closure regarding his initial concerns . He had an independent assessment recently which confirmed clinical depression and in the light of this, it was recommended that he be referred to the local mental health service for intensive therapy." [emphasis added] 509. He then received treatment from the adult mental health team until he was discharged in January 2021.

510. However, Mr MacLeod's injury was ongoing and in March 2023 he received a long-term incapacity allowance for depression, anxiety and PTSD. This was renewed in 2024 and remained in place while we heard evidence. Discussion and analysis 511. Having set out the relevant factual events and medical evidence, we now turn to consider the allegations made by Mr MacLeod. The context of these allegations is that it was not in dispute that on 28 May 2019, Mr MacLeod suffered a psychiatric injury. Professor Fahy diagnosed this injury as an adjustment disorder with anxiety and depression. In his supplemental report, Professor Fahy explained this as being a mild but clinically significant emotional reaction to an identified stressful experience or a depressive disorder of mild severity. Initially, Dr O'Flynn advanced a different diagnosis but accepted that he had fallen into error in doing so. Dr O'Flynn addressed this in his third supplementary psychiatric report dated 24 April 2025 where, at paragraph 17, he set out that he agreed with Professor Fahy that the most appropriate diagnosis was one of a prolonged adjustment disorder. He provided a detailed description of what is meant by an adjustment disorder at Appendix 1 to this report.

512. In light of it being common ground that Mr MacLeod suffered a psychiatric injury on 28th May 2019, the issues we have to decide are as follows: (i) Did the Co-op cause this injury to Mr MacLeod? (ii) Did the Co-op act in breach of a duty of care owed to Mr MacLeod if it did cause such injury? (iii) If the Co-op caused Mr MacLeod's psychiatric injury, was it reasonably foreseeable that he would suffer that injury as a result of the actions of the Co-op?

513. We have taken these three questions together in our analysis of the events leading up to Mr MacLeod's psychiatric injury, together with our conclusions.

514. We then considered Mr MacLeod's injuries and the effect of various events that took place upon him between Mr MacLeod being signed off on 28 May 2019 and prior to his notification of his dismissal in March 2020.

515. Thirdly, we considered the state of Mr MacLeod's mental health at date of his dismissal on Mr MacLeod and the effect of the dismissal on his mental health. This required us to then decide whether the decision in Johnson prevents or restricts the claim for damages that Mr MacLeod asserts he is entitled to (see paragraphs 34, 120 and the discussion at paragraphs 172 to 206 above.

516. Finally, and subject to our conclusions on the previous questions, we have set out our conclusions on the losses claimed by Mr MacLeod. Events leading up to Mr MacLeod suffering a psychiatric injury on 28 May 2019 517. In Mr MacLeod's closing Skeleton, he set out a number of criticisms relevant to this part of our decisions using the following headings: "Evidence gathering The aborted first KPMG audit Egg on face & vote of no confidence The audit & risk committee meeting (30/4/19) Board meeting 5th May 2019 & KPMG audit Building to maximum fallout 10/5/19 meeting with RemCo Intent of maximum fallout revealed 'Singling out'- expense audit The Williams proposal Signalling a robust appraisal Ms Williams mocks CEO Delivery of maximum fallout strategy to Mr MacLeod The betrayal" 518. To put his submissions in context, Mr MacLeod and Advocate O'Connell on his behalf throughout the trial, emphasised the difference between the Co-op and its values and the conduct of an ordinary business. In relation to this overall submission, we consider that while the values of the Co-op did highlight the importance of openness, transparency and kindness, we consider that Mr MacLeod overstated the difference between the Co-op and other businesses. In our judgment, the values of the Co-op represents best practice of how businesses ought to be run. Those values do not mean that senior executives cannot be held accountable. In addition, the duty of care owed to employees, whether they are employees of the Co-op or another business, is the same. The question at the centre of this dispute is whether the Co-op discharged that duty of care.

519. What we do consider important to set out are the Board and executive responsibilities. These were set out in a document that was reissued on 3 September 2017. The introduction to them stated as follows: "These guidelines aim to describe the responsibilities that will support effective co-operation and collaboration. Underpinning all these is the need for candour. A mutual confidence can only flourish with an avoidance of secrecy and a full exchange of what is on everyone's minds." 520. In relation to the responsibility of the President, he was described as effectively advising the CEO in the following manner: · "The President serves as a critical mentor and advisor to the CEO. · Beyond an ability to advise on the content of strategic decisions, the President provides thoughtful, actionable guidance on how to effectively translate strategy into action. · The President maintains an open door policy for the CEO. · The President is clear on the Board's expectations of the CEO." 521. The President was also described as having to act where necessary " when the standards of governance and fiduciary responsibility require intervention ". He was also required to maintain " a strict no surprises policy with the CEO ".

522. In relation to directors, they were described as being there to advise the CEO as follows: "Effectively Advise the CEO · Directors advise on the substance of strategic decisions. · Directors provide thoughtful, actionable guidance on how to effectively translate strategy into action · Directors maintain an open door policy for the CEO to seek guidance." 523. They were entitled to ask tough questions " on the logic of strategic decisions and the dynamics of Society performance ".

524. However, they were also required to " bring a spirit of energetic teamwork to all interactions with the CEO ".

525. Both Board members and the executive management team were also required to, amongst other things, establish precise expectations, demonstrate humility, self-awareness and a low ego approach, and demonstrate honesty, trust, respect and transparency. The latter included all parties being " fully transparent regarding their opinions, plans and underlying motivations ".

526. Part of Mr MacLeod's case was that from June 2017 he was being set up to fail.

527. While we accept that there were more challenges to Mr MacLeod's performance as CEO compared with the Board dynamics when he became CEO in 2010, Mr MacLeod has not persuaded us that these challenges in 2017 or 2018 amount to anything more than a Board exercising its right to hold a CEO to account. We were not satisfied that at this stage members of the Board were doing anything that was not in accordance with the duties they owed as directors or the specific responsibilities vested in them.

528. We accept that the level of questioning increased firstly with Ms Williams joining the Board and significantly once Ms Carnegie joined the Board in March 2018. In reaching this conclusion, we recognise that the atmosphere was getting more difficult (see paragraph 225 above) and that members of RemCo were deliberately being more assertive (see paragraph 226 above). This however has to be contrasted with the exchange of emails in October 2018 (see paragraph 228 above).

529. However, we are satisfied that matters changed at least by February 2019. We refer to the WhatsApp of Ms Champion at paragraph 240. We expand upon this later.

530. Where we agree with Mr MacLeod is that members of RemCo started gathering evidence from the moment Ms Carnegie took over RemCo in September 2018 and, in particular, when she broadened its responsibilities in November 2018. We consider that part of these actions was looking to hold the executive management team to account which RemCo was entitled to do.

531. What was more troubling was that RemCo was acting in secret. This manifested itself not just through the first WhatsApp group of which Mr MacLeod was unaware until discovery in 2024, but also because Mr MacLeod was not being invited to RemCo and there were no minutes of the RemCo meetings being produced. While Mr MacLeod was not aware of the secret WhatsApp messages until specific discovery was ordered in 2024, they are relevant to show the true motivation of members of Remco at the time. This is why we have interspersed these messages in the events section to record the contemporaneous thinking of Remco members in order to assess whether Ms Carnegie, Ms Williams and Ms Champion were acting in bad faith as alleged.

532. In relation to this issue, we accept that individual board members are entitled to have private conversations with each other which they do not have to share with all directors. They could do this for a number of reasons, including to test any concerns they might have and whether these should be shared more widely. One director might also seek guidance from another director on how to approach a particular issue or about the history of an organisation. This is not, however, what the members of RemCo were doing, at least from February 2019 onwards. We have concluded that they were clearly looking for information to remove Mr MacLeod. The WhatsApp messages are therefore highly pertinent because they reveal the thinking of the members of RemCo .

533. Mr MacLeod suggested that his meeting with Mr Shenton on 27 August 2018 (paragraph 224 above) supported his case that he was being targeted from 2018. In relation to this assertion, we are conscious we did not hear from Mr Shenton to explain what he meant and therefore the only witness to this conversation was Mr MacLeod. While with hindsight we can see why Mr MacLeod suggested that this was part of the campaign in bad faith against him, we consider that at this stage what was occurring were new( ish ) Board members taking a stronger line to hold the executive to account.

534. We consider that this particularly started with the arrival of Ms Carnegie. The length of the cross-examination of both Mr MacLeod and Ms Carnegie allowed us to conclude that both were strong characters with very different backgrounds. Mr MacLeod had spent his entire life in the Co-op. Ms Carnegie's background was initially working for an American company and then working in strategy and leadership. We have concluded that quite quickly these two personalities clashed and what started out as a desire of the part of the non-executive directors of the Co-op, led by Ms Carnegie, to hold Mr MacLeod to account developed into a power struggle.

535. We consider that by February 2019, members of RemCo were therefore looking for material not just to hold Mr MacLeod to account, but to remove him. This was why there was an internal audit of expenses. Although Ms Carnegie initially sought to contend that the internal report was produced at the request of the Audit and Risk Committee, it was clear from the WhatsApp message set out at paragraph 243 that she drove this audit of expenses. When questioned about this audit she sought to downplay the significance of this and contended that it was only a small part of the responsibilities of RemCo and they had many other concerns.

536. We did not accept this evidence on her part. Notwithstanding her protestations (supported by Ms Champion and Ms Williams) that information was being withheld from RemCo , the only document drawn to our attention was an email to the then-head of HR set out at paragraph 218 above, which received responses. There were no other documents which contained any other requests from RemCo for information or any complaints to Mr MacLeod or indeed Mr Shenton that material being asked for by members of RemCo was not being produced.

537. Nor in the trial bundle were there any minutes of any of the meetings of RemCo , whether formal meetings or informal meetings, recording what had been discussed and what steps were being taken. This was notwithstanding the fact that formal meetings at least should have been minuted according to the Co-op's own rules.

538. Nor were there any working papers produced to us showing what other work was being carried out by RemCo .

539. On 7 February 2019 (paragraphs 238 and 239 above), there is a reference to a conversation between Ms Carnegie and the Chairman of the Southern Co-op about their CEO's salary. Yet there were no other working papers showing any review or benchmarking of Mr MacLeod's salary (or that of other EMT members). There was no benchmarking by Remco against salaries of other Co-ops or larger supermarkets by reference to areas of a similar size to the Channel Islands.

540. Other than looking for information about Mr MacLeod and his expenses policy, we were not able to form an overall picture of what other work RemCo were doing beyond targeting Mr MacLeod save that, in relation to the recruitment of a replacement chief human resources officer, there were some communications in early January where RemCo appeared to be reviewing the process. However, these communications indicated that RemCo were going further and wanted to be involved in the process itself. While we accept this was a grey area, standing back and looking at the overall picture in the round of what RemCo were doing, as time passed in the first half of 2019, they were clearly targeting Mr MacLeod more and more. It appears to us that this was to the exclusion of their other responsibilities because there is no contemporaneous documentation showing how those responsibilities were being met.

541. We were further satisfied that it was at this time that Ms Henley overheard a conversation between Ms Carnegie and Ms Champion in Co-op House where she stated, " We can get him on fraud ". Although Ms Henley initially thought that this conversation had taken place at a Board meeting, she accepted, given various travel records that were produced, that this could not have been so and she was mistaken in that regard. She was definite however that the conversation took place. As she resigned from the Board in February 2019, this conversation in our judgment must have been about the internal audit expenses. Ms Carnegie and Ms Champion filed supplemental witness statements where both stated that they had no recollection of the conversation. They did not deny expressly that it took place. Both the oral evidence of Ms Carnegie and Ms Champion on this issue was also equally unconvincing. The conversation also fits in with the wider picture of the members of RemCo looking to target Mr MacLeod and remove him as CEO.

542. This hardening of RemCo's position manifested itself in the WhatsApp messages and emails referred to at paragraphs 252 to 254. In April 2019, Ms Champion and Ms Williams thought they had enough to bring a no confidence vote. In our view, this was clearly directed at Mr MacLeod. While he did not know of this, these exchanges were revealing in that they clearly show the mindset of RemCo members. None of Ms Champion, Ms Williams or Ms Carnegie could give any convincing explanations about this exchange.

543. Ms Carnegie tried to transfer responsibility for this exchange of messages to Ms Williams. She also tried to re-cast the relationship between her, Ms Champion and Ms Williams as one that was simply a professional one. Our review of the WhatsApp messages in both the first WhatsApp group and the second WhatsApp group make it clear this was not the case. There were jokes and friendly banter that contradicted Ms Carnegie's assertions. Her explanation about what she meant about being " all revved up " was also unconvincing. We have concluded that she clearly thought that she had an opportunity to seek MacLeod's removal and was excited at the prospect.

544. Likewise, Ms Champion's evidence on this exchange of emails and WhatsApp messages was equally unconvincing. Her evidence was also inconsistent with the tenor of the WhatsApp messages and the approach she (and the other members of RemCo ) took in seeking to remove Mr MacLeod following the Board meeting of 5 May which we address later.

545. Ms Williams was also unconvincing on this point and tried to blame Ms Champion. She also emphasised a high level of frustration about the lack of answers from Mr MacLeod and the executive management team but, as we have noted above, there was no contemporaneous documentation from RemCo to support this evidence. The lack of action by RemCo is supported by Mr Shenton's complaint to Ms Williams set out in his email of 5 June cited at paragraph 366 where he described that RemCo were tasked to undertake two actions urgently, neither of which had been done six months later. On 22 May, Mr Shenton described the performance of RemCo to Mr MacLeod as " an absolute disaster ". The only piece of evidence which supports information not being supplied to RemCo is Mr Shenton's email of 25 May (see paragraph 344). However, this extract still referred to RemCo failing to meet part of its responsibilities. It also immediately followed Mr Shenton having performed a volte face in relation to Ms Carnegie in asking Mr MacLeod to file a complaint against her but then not accepting her resignation when she offered to resign. We also did not hear any evidence from Mr Shenton. We have therefore concluded that this one document alone is not sufficient to alter the overall conclusion we have reached and to support the assertions by Ms Carnegie, Ms Champion and Ms Williams about the other work that RemCo was carrying out. The KMPG audit and 5th May board meeting 546. We next deal with the KPMG audit and the 5 May Board meeting.

547. The first version of the KPMG audit was presented to the Board on 14 April 2019. This audit had to be aborted and KPMG start again because the then audit partner, as the minutes of 14 April put it, had suffered an " emotional crisis ". This led to a different KPMG partner (Mr Quinn) carrying out a fresh audit over a very short period.

548. However, what is significant about this first report are the exchanges on the First WhatsApp Group set out at paragraphs 250 and 251 above. Ms Carnegie also saw the first report as an opportunity to pursue Mr MacLeod.

549. When the second KPMG audit report was considered at the 5 May Board meeting, the members of RemCo sought to use this audit report in order to continue their attack on Mr MacLeod consistent with the exchanges about the first audit report at the 14 April Board meeting. As with so much of their evidence, the attempts of Ms Carnegie, Ms Champion and Ms Williams to explain away these messages were wholly unconvincing.

550. This desire to remove Mr MacLeod was why during the 5 May Board meeting itself, when Ms Carnegie and Ms Williams were exchanging WhatsApp messages (see paragraph 263), Ms Carnegie at 9.47 stated " time to act on all our concerns with the running of the society is now I think "; in other words, Ms Carnegie used the audit findings in order to attack Mr MacLeod. We return to this shortly.

551. However, before we do so, it is appropriate to set out our view of the audit of KPMG.

552. The audit report was firstly presented to the Audit and Risk Committee on 30 April (see paragraph 257 above) by Mr Quinn from KPMG. As we have noted that opinion was unqualified.

553. The Audit and Risk Committee also explored the fact that the Co-op was reporting net current liabilities of £1.7 million. However, as the 5 May Board minutes note (see paragraph 267), Mr Quinn was satisfied with the executive management team's assessment of the Co-op's status as a going concern. We have recorded Mr Rees's explanation of this at paragraphs 275 to 277.

554. Mr Rees also gave the same explanation to us during his evidence and we accepted his explanation unreservedly. When looking at the accounts which we considered, we were entirely satisfied that in the round the Co-op was a very successful business under the stewardship of Mr MacLeod. Although there were particular issues where the Co-op faced challenges in certain parts of its business, these were no more than challenges that any large business might face and do not affect our overall assessment of the findings of the KPMG audit.

555. In particular, there was absolutely no issue that the Co-op could not pay its debts as they fell due. It almost goes without saying that the Co-op is a business with significant inflows of cash. It also had substantial property holdings against which it could borrow if it needed to do so. We further accepted Mr MacLeod's explanation given in re-examination about the Co-op not carrying too much stock or not having too high levels of cash if the Co-op's business was going to be run profitably and efficiently.

556. We accept that KPMG did raise issues about the finance function of the Co-op which needed strengthening, both in terms of resources and procedures. We have also concluded from all the materials that we have read that KPMG were somewhat frustrated with the lack of improvements to procedures and the need for more resources in finance which was why further criticisms were expressed to the 5 May Board meeting including against the non-executive directors for failing to address concerns that KPMG had raised previously.

557. We also regard it as significant that the auditors were prepared to continue which was confirmed at the 30 June Board meeting.

558. We have further reviewed the Letter of Representation which the Board members initially would not sign. In our view, there is nothing remarkable about this Letter of Representation which, to the Court, appeared to be standard. Certainly, there is nothing in it which we regarded as being out of the ordinary or which caused us to conclude that there were any significant issues with the Co-op. The fact that the Board required the executive management team to countersign a document confirming the matters set out in the Letter of Representation does not alter this conclusion.

559. We have set out these conclusions because they contrast with the evidence, in particular of Ms Carnegie, who stated that the auditors were gravely concerned about the Co-op and that much of the conversation in the first in-camera session was about the Co-op being " unable to trade ". She reached this conclusion by reference to the net current liabilities being £1.7 million and said that the Co-op was unable to pay its liabilities as they fell due.

560. In our view, Ms Carnegie's evidence is not supported by either the accounts themselves, Mr Rees's explanation of them or the Letter of Representation. When Ms Carnegie was questioned about this by Advocate O'Connell and by clarificatory questions from the Court, it was clear she did not understand the explanation given by Mr Rees.

561. What in our opinion did occur was that the auditor's comments were used by Ms Carnegie to start asking a series of questions. In our view, she did so in a forceful manner. While at other times she would swear when asking questions, we were not persuaded that she used inappropriate language in this particular meeting. What we are satisfied of however is that Ms Carnegie deliberately sought to ask difficult questions based on the auditor's report as part of the then strategy of RemCo to seek to remove Mr MacLeod. This is why she sent the message during the meeting itself about it being time to act.

562. In relation to these questions, we were also satisfied that Ms Carnegie was not interested in the answers. She simply wanted to pose questions to put maximum pressure on Mr MacLeod. That is why so many questions appear on a whole range of different topics. Ms Carnegie herself made it plain that she was very good at asking questions. What we did not see was her evaluating answers to questions or taking steps to address the issues she contended that the questions gave rise to.

563. As to the impact of this questioning on Mr MacLeod, the minutes record Mr MacLeod making brief observations at pages 11 and 12. On page 17 following the second in-camera session, he asked for clarity about the Board's areas of concern. Otherwise, Mr MacLeod is recorded as saying very little. Ms Carnegie was unable to explain why she contended that Mr MacLeod was doing most of the talking in the meeting and yet in her note to the Lewis Silkin complaint she described him as being very, very quiet.

564. Ms Champion, in her witness statement, sought to suggest that Ms Carnegie was forcible but she did not shout. Yet in cross-examination, she accepted that she was only listening in to the meeting on a call from India, whilst also spending time with her family who were with her for the duration of the meeting. She also could not explain how she had to ask after the meeting what had happened (see paragraph 288 above). We simply cannot accept her evidence on the effect of the 5 May Board meeting on Mr MacLeod. Her evidence to the Lewis Silkin investigation also contradicted her assertions in oral evidence that she was present.

565. We have also treated the evidence of Ms Williams with a degree of circumspection that the comment by Ms Carnegie was not directed at Mr MacLeod. As with much of the evidence, we prefer the evidence of Mr MacLeod and Mr Rees on this topic. Mr Rees was clear that Ms Carnegie was " extremely pointed towards Mr MacLeod in particular " and that the observation that " he will not be the only one to go " was obviously directed at Mr MacLeod.

566. There was some time taken up in submission about whether Ms Carnegie was shouting. We are not convinced that this part of the assertion is made out on the evidence. However, it does not affect our conclusions. It was clear to us that Ms Carnegie at the 5 May Board meeting was being extremely forceful and was demonstrating anger. Anger can manifest itself in a number of ways and does not require shouting. As we have already stated, Ms Carnegie was clearly a forceful personality. We have no doubt that she used the full force of that personality at the 5 May Board meeting and targeted Mr MacLeod.

567. Mr MacLeod's own reaction by text to Mr Shenton immediately following the 5 May Board meeting at paragraph 294 is also consistent with our conclusions. Mr MacLeod came across to us as not being a man who would overly explore his feelings. He accepted he was stoic and throughout this time kept going. For him therefore to admit that he had been reflecting on the meeting and had not slept much as a consequence, in our view was significant. It was Mr MacLeod sharing with his President how he felt, which is consistent with the case he now advances.

568. We are supported in this conclusion, not only by the WhatsApp messages that took place during the 5 May Board meeting and immediately following it (paragraph 288 above), but also by the email sent by Ms Vibert (paragraph 291 above).

569. The evidence of Ms Williams in relation to the 5 May Board meeting was also highly revealing. During her evidence, she explained that during the second in-camera session, a vote of no confidence was passed against Mr MacLeod. In relation to this, we accepted this part of her evidence both because it rang true and it explains the message sent by Ms Carnegie who quoted at paragraph 273 that " I don't think Ben is up for really addressing this ". This makes sense in the context of a vote of no confidence having been passed. It is also consistent with the deliberate targeting of questions by Ms Carnegie. While Ms Champion and Ms Carnegie did not mention this, and so were not expressly asked about it as they had already given evidence, this does not affect the conclusions we have reached as both denied that Mr MacLeod was targeted, a position we have rejected.

570. It is right to add that the vote of no confidence may have been directed at the executive management team as well as Mr MacLeod but, in our view, this does not matter because the main target was clearly Mr MacLeod.

571. We therefore accept that, following the second in-camera session in the 5 May Board meeting, when Ms Carnegie said, " He won't be the last to go ", this was not referring to her resigning as she suggested. In our view, as we have noted above, it was a remark directed at Mr MacLeod. We have reached this conclusion, while noting that Mr Shenton expressed a different view in August 2019 (see paragraph 412 above). However, we have not heard from him and so could not assess why he made this statement. We have therefore reached our conclusion on this point by reference to the witnesses who appeared before us.

572. Consistent with this conclusion is the exchange of emails that took place on 6 May (paragraphs 292 and 293), including the observation from Ms Williams, " Let's keep the pressure on ".

573. The context of the exchange of WhatsApp messages on 17 May at paragraphs 313 to 316, amongst various other messages, is also consistent with our conclusion that the 5 May Board meeting was used to deliberately target Mr MacLeod in reliance on the audit, which was not justified for the reasons we have given, to seek to force Mr MacLeod out.

574. This pattern continued with the meeting of the Strategy Committee with Remco that took place in Guernsey on Friday 10 May.

575. In relation to this meeting, Mr MacLeod had reservations about going (see paragraph 297 above). While the meeting appeared to go well, and was therefore put forward as evidence by the Co-op that Mr MacLeod was functioning normally, we have concluded that the behaviour of the members of RemCo was a pretence for the following reasons: (i) The exchange of WhatsApp messages referred to at paragraphs 305 to 307, in particular, Ms Carnegie's evidence that " I feel like he's my new best friend ", with Ms Williams replying, " For today ". Like much of their evidence, they were unable to provide explanations that were convincing as to what they meant by these remarks. In our view, they clearly establish that they had simply decided to change tack for that particular meeting but ultimately their strategy of removing Mr MacLeod had not altered. (ii) This is also demonstrated by Mr MacLeod's email of 18 May to RemCo following the meeting set out at paragraph 323 above. As paragraph 324 notes, no response was ever received to this email. Yet if RemCo were genuine about the strategy, we would have expected to have seen a reply to this message and further communications and meetings. None of that occurred which is consistent with the ongoing aim of members of RemCo to remove Mr MacLeod.

576. We wish to add at this stage that while we refer to the bad faith allegations against Ms Carnegie, Ms Williams and Ms Champion, and that no allegations are made against any other members of RemCo , in particular Ms Ryde and later Ms Clark, we consider that the desire to remove Mr MacLeod was held by all members of RemCo . Accordingly, while we limit our findings on bad faith to those against whom the allegations were made, they were not the only members of RemCo who, in our judgment, wished to remove Mr MacLeod.

577. The other evidence in support of our conclusion that the members of RemCo had no intention of developing the strategy presented to them by Mr MacLeod, and instead were set on continuing to seek his removal, relates to the minutes of the meeting on 10th May 2019. While these minutes purport to be of the meeting held by RemCo ( CaseLines J2575), they were only produced in February 2020, i.e. shortly before Mr MacLeod's dismissal. The final part of the minutes at page 7, where RemCo discussed the advantages and disadvantages of the options presented by Mr MacLeod and the committee's requirements and what Mr MacLeod agreed to provide on page 8, were never communicated to Mr MacLeod. We consider these were an after-the-event justification designed to water down the strategy that Mr MacLeod had presented and which had gone down well according to his contemporaneous text to Mr Shenton. Paula Williams applying to become CEO 578. We next deal with the allegation that Ms Williams applied to replace Mr MacLeod as CEO. In our view, the first reference to this is Ms Carnegie's email sent on 11 May 2019 at 9.57 (see paragraph 308 above). Ms Williams' explanation was that she simply spoke to Mr Shenton at the conclusion of a meeting in Guernsey on 15 May where she offered to help with strategy.

579. This evidence is inconsistent with the following: (i) Sue Ryde's email sent at 10.58 on 17 May (paragraph 312 above) and Ms Williams' reply sent at 11.01 (paragraph 313 above). (ii) As we have noted at paragraph 314, the reference to Ms Ryde (who had not been re-elected to the Board) picking up Ms Williams' slot was a reference to her coming back on the Board. This could only occur if there was a vacancy at this stage by Ms Williams in replacing Mr MacLeod. (iii) By 18 May, Mr Shenton had clearly told Mr MacLeod that Ms Williams wanted to replace him. This led to Mr MacLeod's email of 18 May. While we have not heard from Mr Shenton, it is also a contemporaneous record consistent with Mr MacLeod's case. (iv) Mr MacLeod's email of 21 May is also consistent with a conversation having taken place with Ms Williams. (v) There was direct correspondence between Ms Williams and Mr Shenton on 2 June (paragraph 362 and 363 above. This email was also shared with Mr MacLeod (see paragraph 364).

580. All these documents and events, when taken together, which either occurred at the time that Ms Williams spoke to Mr Shenton (which she admits) or shortly after, in our view support Mr MacLeod's assertion that Ms Williams did apply to replace him. While we have not heard evidence from Mr Shenton on this question (and it would have been very useful to hear from him), the fact that we have not heard from him does not affect our conclusion on this part of the case.

581. To the extent that Ms Williams suggested she was simply offering to help out on a temporary basis, we accept that she was not looking to replace Mr MacLeod permanently; this does not affect our conclusion however that she did look to replace him in some capacity. We reject her evidence that her conversation was about strategy only. In our conclusion, her " strategy " was for her to replace Mr MacLeod and for him to be removed.

582. In relation to the impact on Mr MacLeod of this, this was one of a number of steps which occurred during this time following on from the 5 May Board meeting which made it clear to him that RemCo were continuing to pursue his removal. It was therefore not surprising to us that in his exchanges with Mr Shenton in May 2019 about Ms Williams applying for his role as CEO, that Mr MacLeod wanted Ms Williams to resign. That is an entirely understandable position. We cannot envisage, where a non-executive director sought to replace a CEO, which application did not succeed, that any CEO would not then demand the resignation of such a director. We also consider that most directors in such a situation would resign. Regrettably, this did not happen in this case. We have not heard evidence from Mr Shenton as to why he did not seek Ms Williams' removal as Mr MacLeod requested but, in our view, he should have done by reference to her seeking to replace Mr MacLeod.

583. The fact of Ms Williams having applied to replace Mr MacLeod on a temporary basis was also referred to in the meeting that took place on 23 August 2019 (see paragraph 340 above). Although, at paragraph 433, Ms Williams referred to a document existing which set out the proposal she had made to Mr Shenton, no such document was ever produced. Ms Williams, in cross-examination, was unable to explain why this document had not been preserved even though Mr Lintell on 31 July had warned the directors as to it being potentially discoverable. Ms Williams should have preserved this document and could not offer any credible explanation as to why she had not done so.

584. Finally, we refer to an email of 23 August 2019 which only emerged during trial from Ms Williams to Alex Fearn and Ms Carnegie. In the context of discussing whether Mr Cox should become interim CEO, she stated the following: "MC was CM's pick, but even he had reservations regarding how staff would accept this, so did caveat it with only for the interim. MC is a CM 'mini me' and would it does concern me that he could continue to give CM access and influence within the Society. It was because of these concerns that I approached BS about stepping into the gap (will send all this through when I get back) ." [emphasis added] 585. This email (although it was omitted from discovery accidentally) clearly confirms that Ms Williams did apply to replace Mr MacLeod on a temporary basis. The external expenses audit 586. We next deal with the audit of Mr MacLeod's expenses that was requested. As we have noted at paragraph 256 above, the internal audit did not reveal anything about Mr MacLeod acting improperly in relation to expenses. Rather, the report simply highlighted certain internal control concerns.

587. Notwithstanding this, an external audit of Mr MacLeod's expenses was sought. The first reference to this is an exchange of emails between Mr Shenton and Mr Lintell (paragraph 298 to 299 above) where Mr Shenton recorded that RemCo had requested copies of Mr MacLeod's expenses or, at a minimum, an audit of them.

588. The issue was pursued in an exchange of emails between Mr Shenton and Ms Carnegie which set out that Mr Shenton had ordered a review of the expenses policy (set out at paragraph 335 above).

589. Paragraph 2 of this review sought a review of expenses claimed by the chief executive (Mr MacLeod) and the company secretary.

590. The same email made it clear that Mr Lintell was included because the Board as a whole by reference to its terms of reference was responsible for establishing and monitoring the operation's expenses policy for the chief executive officer and company secretary.

591. It was clear to us that this expenses audit was targeted at Mr MacLeod. This was why Mr Shenton wrote to Mr Lintell on 27 May (paragraph 347 above). Ms Carnegie was made aware that this was the case (see paragraph 349 above).

592. Mr Lintell on the impact of an expenses audit was totally unconvincing in his evidence. He suggested that an expenses review of all the senior executive management and executive team should have taken place for the last three years. He did not see at all the impact that such an approach would have had.

593. In our view, a review of a senior figure's expenses by an external auditor or similar body is a very serious step to take. It would not normally occur without some indication of wrongdoing. It would at its lowest imply a search for conduct that was either dishonest or in breach of an employee's obligations. We have therefore concluded that it was very much part of the tactics to target Mr MacLeod.

594. We add at this stage that like the internal report, the external report that was ultimately produced came to nothing. However, this does not affect the conclusions we have reached because in the period leading up to his breakdown on 28 May, this was another factor where Mr MacLeod was being targeted.

595. In that regard, the evidence of Ms Carnegie, Ms Champion and Ms Williams on this topic was wholly unconvincing. Ms Carnegie initially tried to blame Mr Shenton but when referred to her email at paragraph 349, she then tried to rely on RemCo wanting a wide-ranging expenses audit. However, there is little evidence to support this. She was both the chair of Remco and the ringleader in seeking to remove Mr MacLeod at all material times.

596. Ms Champion's evidence contradicted that of Ms Carnegie because she contended that in order to assess an organisation's approach to expenses, it was necessary to start at the top. When challenged that this was simply about Mr MacLeod, she suggested that Ms Carnegie would have to be asked about this. She was also unable to point to any emails or communications indicating that Mr MacLeod had been asked for any further expenses' information by RemCo prior to RemCo asking for the external audit (or indeed the internal audit).

597. Mr Lintell ultimately accepted in cross-examination that the expenses audit was " laser focused on Mr MacLeod and that singling him out would have been a concern to him ".

598. Finally, on this section in relation to expenses, we note that the report which did not give rise to any difficulties was never sent to Mr MacLeod. Rather, the question of the report was left hanging in the air as far as he was concerned. Mr MacLeod's appraisal 599. We next deal with Mr MacLeod's appraisal. On 17 May, Ms Carnegie asked for information about Mr MacLeod's performance. She clearly wanted to conduct a tough appraisal against Mr MacLeod. While there is nothing wrong in principle with chief executives being appraised robustly and past performance being reviewed, in particular where mistakes have been made, this appraisal seemed to be pre-determined and part of the plan to force Mr MacLeod out.

600. This can be seen from a number of documents, e.g. Ms Carnegie's message on 17 May (paragraph 316) emphasising what they would like to happen. Ms Williams, in an email of 20 May (set out at paragraph 327 above) suggested there was no confidence in the leadership team to deliver quality results. This was sent using a private email address and does not sit with the year end results being the most successful ever. The exchange of private emails on 6 May and Ms Ryde's reply the same day further reveal that what was wanted was change and that the aim of RemCo was to keep the pressure on. The exchange of WhatsApp messages following the RemCo meeting to which we have already referred are indicative of the same attitude. Ms Williams, as noted at paragraph 325, also appeared to take pleasure in Mr MacLeod having to apologise for a particular event. Ms Williams, in her evidence, contended that this was about Mr MacLeod taking responsibility which had finally occurred. She also argued that this line was taken out of context but did ultimately concede it was not her proudest moment. Mr MacLeod's complaint against Ms Carnegie 601. We next turn to the complaint filed by Mr MacLeod. It is important to put this complaint in context following the 5 May Board meeting. Firstly, Mr MacLeod's initial reaction was conciliatory. He clearly had a conversation with Mr Shenton who suggested that Mr MacLeod fight " fire with fire " (see paragraph 300 above). Mr MacLeod did not adopt that approach.

602. Mr MacLeod's approach remained conciliatory including the email he sent to RemCo on 18 May.

603. Mr MacLeod then, once he had heard about Ms Williams applying for his role, prepared a draft letter for Mr Shenton to send to Ms Williams which contained a suggestion that Mr Shenton should recommend Ms Williams' immediate removal from office (see paragraphs 328 and 329 above). As we have found above, this was an entirely understandable reaction.

604. It was in this context that Mr Shenton asked Mr MacLeod to draft a letter of complaint from the executive management team. Mr MacLeod was also told that Mr Shenton was going to review the performance of RemCo (see paragraph 331). Ultimately, the letter of complaint came from Mr MacLeod alone because he felt it better to protect his colleagues.

605. What had been planned by Mr Shenton was that instead of Mr MacLeod having an appraisal, Mr Shenton would simply meet with Ms Carnegie and present her with the complaint. While this happened, the stance adopted by Mr Shenton up to this point in time altered. Although Ms Carnegie stated that she offered to resign, Mr Shenton did not accept this resignation. Ms Carnegie also stated that Mr Shenton asked her not to mention the complaint to anyone at this stage. Ms Carnegie did not mention this complaint but did continue to discuss with WhatsApp members the removal of Mr MacLeod as CEO (see paragraph 343).

606. The fact that Ms Carnegie initially offered her resignation in response to Mr MacLeod's complaint was recorded in Mr MacLeod's email to Mr Shenton of 26 May, in which he stated that the call from Mr Shenton of 25 May had clearly come as a shock to him. He thought that, at the request of Mr Shenton, his complaint was going to lead to Ms Carnegie's resignation. Even though she offered that resignation, Mr Shenton did not accept it.

607. Mr MacLeod also believed that Ms Williams was going to be asked to resign. This followed on from the 5 May Board meeting where he had been clearly threatened and felt there was justification for her resignation for the reasons we have already set out.

608. We agree with Mr MacLeod that this left him in a " virtually impossible position ". Even then, he still tried to make it work. He did however make it clear that he felt that Ms Williams had to go. The maximum fall out strategy and Mr Shenton's volte face 609. What the above led to was described by Advocate O'Connell in his closing skeleton as the maximum fallout strategy. This was a reference to an email exchange between Ms Champion and Mr Shenton on 17 August in the context of Mr MacLeod's exit. Ms Champion stated " You advised CM that he was going to have a robust appraisal with a number of performance concerns from the Board, and that a KPMG review in his and CL's expenses was starting the next day (CM requested that you cancelled this at least twice). You told me that you advised CM of items like this to get maximum fallout to see what response you got ".

610. Mr MacLeod described this as the maximum fallout strategy which also extended to Ms Williams applying for his job as CEO and being mocked by Ms Williams as we have referred to above. For the reasons we have given, we are satisfied both of these events happened.

611. Advocate Heywood in response to the sequence of events we have set out and in reliance on the evidence of Professor Fahy, contended that what caused Mr MacLeod's breakdown was the failure of Mr MacLeod's " coup against Ms Carnegie and the decision by Mr Shenton to seek a compromise between the warring parties ". Advocate Heywood's closing submission described this as political manoeuvring or political machinations.

612. While we accept that there was a conversation between Mr MacLeod and Mr Shenton on 25 May, leading to Mr MacLeod's email of 26 May (paragraph 345), we do not accept that Mr MacLeod was engaged in political machinations. His initial reaction to the 5 May Board meeting was not to fight fire with fire as Mr Shenton suggested but to seek a more conciliatory approach. He filed the complaint at Mr Shenton's request. He also made the complaint himself to protect his colleagues. His desire for Ms Williams to resign was completely understandable when she had applied for his job as we had found.

613. This has to be contrasted with the actions of Ms Carnegie, Ms Williams and Ms Champion. In our judgment, they were looking for opportunities to remove Mr MacLeod from early 2019. They had no justification to do so in what was a successful business. While Mr MacLeod may have had his faults, and was clearly a strong personality, that is very far from having a justification to remove him. In our judgment, with Ms Carnegie as ringleader and supported by Ms Williams and Ms Champion, the members of RemCo were looking for an opportunity to remove Mr MacLeod. While we have not heard evidence from Ms Ryde, from the documents we have seen, we are of the view that she was of the same mindset. What was going on was a deliberate targeting of Mr MacLeod to force him out and to look for ways for doing so which was not justified.

614. The ultimate proof supporting this conclusion is to be found in the exchange of WhatsApp messages sent immediately after by members of RemCo (set out at paragraphs 356 and 357) when Ms Champion stated, " But when the noose starts tightening you get more stressed and end up off from work! ".

615. This message was appalling. Ms Champion's attempts to try to explain this away were pathetic in the true sense of the word. At least Ms Williams had the dignity to recognise that her response was inappropriate. Ms Carnegie, as was a common thread throughout her evidence, sought to distance herself from this exchange. At the time however she simply said nothing about it. Given the nature of WhatsApp messages that had gone before, we have concluded that she was clearly in agreement with Ms Champion's remarks. If she had thought otherwise then she should have said so. The fact that she did not do so speaks volumes. Bad faith 616. This leads us to the allegations of bad faith. As to what is meant by bad faith, this was explored in Hard Rock Limited & Anor v HRCKY [2023] JRC 169 ("Hard Rock"). In the context of long-term relational contracts, in Hard Rock, the Court quoted from Yam Sang PT Limited v International Trading Corp Limited ("Yam Sang"), to which we were referred to in the present case. In addition to dishonesty, bad faith was also noted at paragraph 138 of Yam Sang , approved in Hard Rock, to include the following: "In addition to honesty there are other standards of commercial dealing which are so generally accepted that the contracted parties would reasonably be understood to take them as read without explicitly stating them in their contractual document. A key

aspect of good faith, as I see it, is the observance of such standards. Put the matter the other way round, not all bad faith conduct would necessarily be described as dishonest. Other epithets which might be used to describe such conduct include 'improper', 'commercially unacceptable' or 'unconscionable'." 617. In the present case, we are satisfied that the way RemCo and Ms Carnegie, Ms Williams and Ms Champion went about their duties in seeking to remove Mr MacLeod without justification was in breach of their duties as directors but was also improper, commercially unacceptable and unconscionable and therefore amounts to bad faith. They did not have justification to remove Mr MacLeod for the reasons we have already covered.

618. This includes meeting and communicating in secret without maintaining records, failing to raise concerns through formal channels, requiring two expenses audits targeted at Mr MacLeod, looking for evidence to use against him and Ms Williams applying for his job. This conduct continued after Mr MacLeod went off sick. We address further examples of acting in bad faith in the sense of improper, commercially unacceptable or unconscionable conduct. The summary in this paragraph covers all those epithets. Breach of a duty of care 619. However, the claim is not against Ms Carnegie, Ms Williams or Ms Champion. They were not accused of dishonesty personally; nor was the tort of causing intentional harm pleaded against them. Rather, the allegation was ultimately one of the Co-op failing in its duty of care. The bad faith of these members alone is not therefore enough to establish a breach of duty on the part of the Co-op.

620. What in our view tips the balance is the conduct of Mr Shenton when taken with Ms Carnegie, Ms Williams and Ms Champion acting in bad faith. While, as an accountant, Mr Shenton may well have been concerned about the audit findings, and he wanted a report produced by Mr MacLeod to address the findings, they were not a basis to seek to remove Mr MacLeod. He also failed to stand up to Ms Williams and to ask the Board to require her resignation. Having invited Mr MacLeod to file a complaint which led to Ms Carnegie initially offering her resignation, he then did not accept it. We do not know why that was the case. This was not Mr MacLeod engaged in machinations as Advocate Heywood contended for the Coop; rather this was Mr MacLeod being encouraged by his President to respond to the way he was being treated. When Mr Shenton performed a volte face leaving Mr MacLeod vulnerable to the ongoing actions of the members of RemCo , it was this in our view that caused Mr MacLeod to snap.

621. We therefore find that the Co-op, through the combined actions of Ms Carnegie, Ms Williams and Ms Champion who were acting in bad faith, and Mr Shenton, has breached its duty of care to Mr MacLeod leading him to suffer psychiatric injury. We also reject the argument that Mr MacLeod contributed to the injuries he suffered. The injuries were all due to the Co-op's breaches of care. Foreseeability 622. However, as Mr Heywood emphasised, this finding is not enough of itself for Mr MacLeod to succeed against the Co-op. The psychiatric injury he suffered has to be reasonably foreseeable. Mr O'Connell in closing fairly accepted that no one foresaw that Mr MacLeod was about to suffer a psychiatric injury. He was right to make that concession for the following reasons: (i) Firstly, Mr MacLeod himself, although he was on the point of collapse, accepted he was stoical and kept going; (ii) Nor did Ms Dixon see any warning signs and she was the person who worked with him most closely; (iii) There was nothing in Mr MacLeod's medical records that show he was likely to collapse or at risk of doing so; (iv) No one in the Co-op realised that Mr MacLeod was on the point of collapse.

623. Ironically the distasteful remark of Ms Champion itself confirms that none of the members of RemCo foresaw what was about to happen. Rather, their response was that they doubted whether Mr MacLeod was genuinely ill.

624. Normally, unless an employee's psychiatry injury is actually foreseeable, then an employer cannot be held liable. We refer to the extract at paragraph 22 from Hatton set out at paragraph 135 above. We also refer to paragraph 23 of Hatton set out at paragraph 137.

625. However, these statements are not conclusive. Within Hatton itself at paragraph 25, as we have emphasised (see paragraph 138), foreseeability depends on the inter-relationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him.

626. Paragraph 26 is also pertinent where it states that it would be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is, in all the circumstances of the case, unreasonable (see paragraph 139 above).

627. We are entirely satisfied that the pressure being put on Mr MacLeod in relation to the 5 May Board meeting, his expenses, not dealing with his complaint and seeking to replace him was totally unreasonable.

628. Paragraph 33 of Yapp emphasised that it is important what the employer not only could but should have done to prevent harm. Mr Shenton in this case should have accepted the resignation of Ms Carnegie in response to the complaint and should have asked Ms Williams to resign. The audits of expenses, both internal and external, pushed for by Remco led by Ms Carnegie were wholly unnecessary. The tough appraisal was simply designed to cause additional pressure.

629. In the overall summary contained in Hatton at paragraph 43, Hatton recognised that foreseeability depended not only on what an employer knew but what the employer ought reasonably to know. While the same extract emphasised that an employer is usually entitled to assume that an employee could withstand the normal pressures of the job and to take what he is told by his employee at face value, and therefore at the employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, this does not mean that the risk of psychiatric illness is not foreseeable simply because the employer did not foresee that risk.

630. This is also clear from the analysis in Yapp . Firstly, paragraph 85 of Yapp is significant where it cited with the approval the decision of the Court of Appeal in Attia v British Gas Plc . We have emphasised ultimately it is a matter for the judge (in this case, the Jurats) to form their own view of what happened and whether it was reasonably foreseeable " to the reasonable onlooker that the particular cause produced the particular effect in a person of normal disposition ".

631. This led Lord Justice Underhill at paragraph 119 (paragraph 163 above) to contend that psychiatric illness would not usually be foreseeable unless there are indications of which the employer was or should have been aware. In making this observation, Lord Justice Underhill was keen to stress that each case must turn on its own facts. He repeated this observation at paragraph 123(ii) which we have set out at paragraph 164, where he recognised that in principle an employer's conduct in a particular case might be so devastating that it was foreseeable that even a person of ordinary robustness might develop a depressive illness as a result.

632. In the present case, Mr MacLeod, as has been noted on several occasions, had spent his entire life with the Co-op. He had worked his way up and became CEO at the age of forty. He was the driving force as well as being a dominant personality. While there is nothing wrong in principle with directors seeking to hold a dominant figure to account, what occurred in this case was a deliberate campaign to remove Mr MacLeod, led by Ms Carnegie and supported by other members of RemCo . Mr MacLeod's mentor and the person he thought was his ally failed to stop this happening and let him down even though it was Mr Shenton's responsibility as noted at paragraph 521 above to act " when the standards of governance and fiduciary responsibility require intervention ".

633. The Jurats were absolutely clear that where completely inappropriate conduct occurs without justification to remove a senior executive, even though that executive tries to fight to keep his or her position, if they do not do so there is a serious and foreseeable risk that such an executive could suffer psychiatric injury. In this case, the Jurats have no hesitation in concluding that the conduct of the Co-op through the combination of RemCo and Mr Shenton meant that it was reasonably foreseeable that Mr MacLeod, as he put it, " was in an impossible position ", and would suffer psychiatric injury.

634. This conclusion was supported by the evidence of Professor Fahy that we have set out at paragraph 109 above, where he recognised that a coordinated attack that was planned to undermine Mr MacLeod's reputation and professional integrity and to oust him could be viewed as a foreseeable cause of psychological harm. Dr O'Flynn agreed with that assessment. The Jurats' conclusions on foreseeability are therefore supported by the views of the medical experts.

635. In reaching this conclusion, the Jurats are conscious that it is only in exceptional cases that it is foreseeable that an apparently robust employee will develop a depressive illness. They have concluded that this case is one that is exceptional and therefore they have concluded that Mr MacLeod's injury was reasonably foreseeable. Taking the words of Lord Justice Underhill in paragraph 127 in Yapp , the conduct of the Co-op was " sufficiently egregious to render it foreseeable " that the behaviour of RemCo and Mr Shenton's volte face would cause Mr MacLeod a psychiatric injury. Lord Justice Davis at paragraph 156 of the same judgment, in the paragraph we have highlighted at paragraph 168 above, expressly recognised this possibility. We have therefore concluded that there is nothing in principle preventing the Jurats from reaching the conclusion they have. Accordingly, the psychiatric injury suffered by Mr MacLeod was caused by a breach of duty by the Co-op and was foreseeable. Events between the onset of Mr MacLeod's injury and his dismissal and the extent of Mr MacLeod's psychiatric injury 636. We now deal with the conduct of the Co-op once Mr MacLeod was signed off. We have already referred to the appalling comment of Ms Champion referred to at paragraphs 614 and 615.

637. The conduct of Ms Carnegie, Ms Williams and Ms Champion once Mr MacLeod has been signed off on 28 May continued.

638. Firstly, it was left to Mr MacLeod to announce what had happened and to make arrangements about how the business of the Co-op should be run. The only discussion that may have taken place with him when he did this in early June 2019 may have been conversations with Mr Shenton. Otherwise, there was no contact between Mr MacLeod and any other members of the Board. Although, Ms Williams, in her email of 1 June (paragraph 358 above), purported to recognise a duty of care, she did nothing positive to support Mr MacLeod. The real thrust of that email was about finding a replacement and therefore to wrest control from Mr MacLeod. In that, she was supported by Ms Carnegie (paragraph 360). We were not therefore convinced that this email amounted to any genuine sympathy on the part of Ms Williams. Rather, it was a continuation of seeking to remove Mr MacLeod.

639. This meant there was no communication with Mr MacLeod about the external KPMG report on expenses, notwithstanding that this report did not find any wrongdoing on the part of Mr MacLeod. There was no explanation from the Co-op why Mr MacLeod was not informed of the outcome of this report until he saw it in discovery some 4 years later.

640. Instead, in the Second WhatsApp Group, there were exchanges about how many votes were needed to remove Mr MacLeod (see paragraph 370 above). The board then voted to remove Mr MacLeod in an in camera session in the Board meeting of 30 June 2019 although they did not tell him about this.

641. In doing so, at the 30 June Board meeting, there were no conflicts of interest declared. Yet, in relation to Ms Carnegie, she had had a complaint made against her by Mr MacLeod. She did not disclose this complaint. Ms Williams had applied to replace Mr MacLeod. This was also not disclosed by her.

642. Mr Lintell, when cross-examined on the question of conflicts, failed to see why these disclosures should have been made. His answers failed to explain why these conflicts had not been recorded other than everyone knowing the position.

643. The Board then cut off Mr MacLeod's access to emails on 18 July (see paragraphs 385 and 387 above). While Ms Carnegie and Ms Williams contended that this was designed to protect Mr MacLeod because he was still unwell, Mr Lintell gave the game away that the board were concerned that either Mr MacLeod or his supporters would access material which could be used against the Co-op.

644. It was also for the same reason that on 31 July (paragraph 391 above) that Mr Lintell recommended that private email addresses were used rather than Co-op email addresses. While others had suggested this was because of problems with the Co-op's systems, Mr Lintell, to his credit, explained the real reason. He also accepted that his approach had been imprudent.

645. The Board also sought to persuade Mr MacLeod to attend a meeting with Mr Shenton. This was to try to implement the decision to remove Mr MacLeod. While he was unaware of this decision, he was warned by Mr Shenton not to attend. Even then Mr Shenton did not reveal the full picture to Mr MacLeod.

646. Apart from the Lewis Silkin investigation which we deal with separately, these were the main steps taken that affected Mr MacLeod. There were others which it is right to mention briefly: (i) Ms Carnegie obtained and circulated copies of Mr MacLeod's medical certificates. As Ms Dixon explained, she was not entitled to these although Ms Carnegie she believed she was. (ii) The press release announcing that Ms Williams had been appointed President to replace Mr Shenton referred to Mr MacLeod being off on long-term sick leave (paragraph 445). There was no consultation with Mr MacLeod whether he was content for the press release to make reference to him being away on sick leave. The Jennifer Carnegie complaint and the Lewis Silkin investigation 647. In relation to the complaint filed by Mr MacLeod which we have set out in full, there are several issues with how this complaint was dealt with.

648. Initially it was not addressed by Mr Shenton who asked Ms Carnegie to keep it quiet. We do not know why Mr Shenton made this request but he should not have done so. Although Ms Carnegie went along with this request, it was not surprising she did so and so we cannot give her any credit for agreeing with Mr Shenton's request.

649. The complaint was also not disclosed or discussed when the Board decided on 30 June that they wanted to replace Mr MacLeod.

650. Ms Carnegie's preference was moreover to halt the investigation into Mr MacLeod's complaint (see paragraph 440 above). While the Board ultimately did not accede to this request, in our view it should never have been made in the first place and to try to do so also amounts to bad faith.

651. Mr Shenton's attempts to either investigate the complaint himself and later to investigate it through an independent Jersey advocate were rejected by the Board. By this stage, Ms Williams, Ms Carnegie and Ms Champion were being supported by Ms Ryde and Jill Clark and therefore RemCo had a majority on the Board. We consider that the majority took this approach to take control of the investigation and to prevent Mr Shenton from reaching his own view.

652. The fact that one partner, Mr Burd of Lewis Silkin, had already given advice to the Co-op on how to give effect to removing Mr MacLeod, was concealed from Mr MacLeod in the letter advising him that the complaint would be investigated by Mr Miskella, also of Lewis Silkin.

653. Mr MacLeod was also not aware that Mr Burd had been present at the initial meeting between Mr Lintell and Mr Miskella and his team. This appeared to us to be a clear conflict of interest which neither Mr Burd nor Mr Lintell seemed to recognise.

654. In giving instructions to Lewis Silkin, Ms Williams initially did not suggest that she should be a witness, although she was clearly involved with all of the events that led to the complaint. Likewise, Mr Lintell attempted to exclude himself from the process (see paragraphs 452 to 454 above). While both were ultimately interviewed, their approach is indicative of the Co-op's attitude to the complaint.

655. In relation to the investigation itself, notwithstanding the criticisms we have set out of the process leading up to Mr Miskella being retained, we cannot reach a conclusion on whether or not Mr Miskella was independent because he has not given evidence. All that was produced to us were the notes of the interviews he carried out and his conclusions.

656. It is right to note however that Mr MacLeod complained about the process because he did not have access to the documents he wished to see.

657. More fundamentally, we are unable to accept the conclusions reached by Mr Miskella. This is firstly because Mr Miskella did not have the benefit of seeing witnesses orally and cross-examined in the way we have. Secondly, he did not have access to the full range of documentation that we saw and in particular the WhatsApp messages. He was not therefore in a position to test the assertions of Ms Carnegie, Ms Williams and Ms Champion in particular in the way that their evidence was tested by lengthy cross-examination from Mr O'Connell.

658. The final issue with the Lewis Silkin investigation is that it was Ms Williams who simply decided to accept its conclusions and informed Mr MacLeod accordingly (see paragraph 471 above). When questioned about this, she indicated that the Board had made a decision to accept the outcome of the investigation. However, there are no documents recording any such discussion. Her own letter of 19 December also made it clear, which recorded Ms Williams' finding that the complaints were not made out and accordingly she refused to uphold them.

659. The same letter makes it clear that Mr MacLeod did not even see the appendices to the report which set out the documents reviewed.

660. We have referred to these events because Professor Fahy described the approach of the Co-op as being " exemplary in the sense that interaction that isn't focused on work or his grievance but on his wellbeing, his recreational activities, family activities, they seem quite warm in their emotional tone ".

661. While we accept that there was interaction with Ms Dixon, Mr MacLeod's PA, and from September onwards with Ms Milton who met Mr MacLeod twice and we have set out the relevant parts of the meetings which took place in September (paragraph 458) and November (paragraph 467), in our judgment, the contact by HR is outweighed by the conduct of the Board and, in particular, members of RemCo as we have summarised above.

662. In relation to the effect of this on Mr MacLeod, Mr MacLeod was clearly not in a good state of mind when signed off. All the medical records note that he had an underlying trauma that was not resolved. This was notwithstanding him starting to see Dr Garcia from September onwards. The fact that the underlying trauma was still there was noted by Dr Garcia's note of February 2020 (see paragraph 502).

663. The conclusion we have therefore reached is that firstly the conduct of RemCo , who were in control of the Board once Mr Shenton left, continued. The same desire to pursue Mr MacLeod and exit him from the Co-op remained. The strategy that had therefore led to Mr MacLeod's illness was pursued. In our judgment, the steps taken were therefore a continuation of the bad faith that we found existed in the events leading up to Mr MacLeod being signed off. Did Mr MacLeod recover and the effect of the dismissal upon him The extent of Mr MacLeod's recovery 664. In this part of the judgment, we deal with firstly how far Mr MacLeod had recovered from the psychiatric injury he suffered on 28 May. Secondly, we deal with the effect of the dismissal on Mr MacLeod's health. Based on our findings, we then apply the principles in Johnson and Eastwood to the conclusions we have reached.

665. Commencing with Mr MacLeod's health, by the beginning of January, he was ready to start exploring a return to work (paragraph 472 above). He saw Dr Buture the next day (paragraph 497) who described his functionality as being good. Dr Garcia, when he saw Mr MacLeod on 20 January, however, exercised a note of caution that " further delay in getting closure re work is likely to undermine recovery ". We also refer to Dr Garcia's observation on 18 February that Mr MacLeod's underlying trauma and its negative effect in Mr MacLeod's self-belief was " still evident " (paragraph 501 above).

666. While Mr Roffey, as noted at paragraph 474 above, described Mr MacLeod as " completely the old Colin last night ", the same email also stated, " So while I don't doubt the fullness of your recovery, I don't know how fragile it might be ". This resonates with the next session on 25 February where Dr Garcia noted that themes were coming up around Mr MacLeod's initial response to work trauma by taking a victim role - which he noted was not uncommon.

667. At this point (i.e. early March 2020), Mr MacLeod explored the question of Permanent Health Insurance ("PHI") cover based on a letter from Mr Lintell sent on 3 March (paragraph 475). When cross-examined, Mr MacLeod gave evidence that the PHI policy " expected me to be in permanent house care as a result of psychosis relevant to the mental health condition " for him to apply. He therefore described making an application as inappropriate. He then went on to emphasise that he was trying to get back to work. The evidence of Mr MacLeod that he was not therefore able to claim under PHI was not challenged in evidence and accordingly we accept this.

668. The lack of PHI cover is also significant because Mr MacLeod, by March 2020, had been off work for over nine months. Under his contract of employment, he was entitled to a maximum of fifty-two weeks sick pay in any consecutive period of twelve months. Mr MacLeod was therefore well aware that if he did not return to work by the end of May 2020, that the Co-op would not have to pay him. We have concluded that this was driving Mr MacLeod's desire to return to work.

669. We are also of the view that Mr MacLeod was not stating that he had recovered. In his email of 17 March to Ms Williams (paragraph 478 above), he stated that his medical advice was that " I am to make a complete recovery but also that I am on the verge of returning to work ".

670. In our view, this does not mean that he had recovered by that stage. The Co-op's assertion to the contrary was not supported by the contemporaneous medical notes up to that point. Rather, we consider that Mr MacLeod was stating that he would make a complete recovery at some point in the future. We consider that this was very much linked to his desire to return to work.

671. The importance of returning to work was why Mr MacLeod on 18 March asked Dr Garcia for a report. While Advocate Heywood for the Co-op emphasised the sentence that asked Dr Garcia to state that " in your opinion, I have made a full recovery ", this does not sit easily with the earlier part of the email where Mr MacLeod asked for the report to indicate Dr Garcia's belief " that I will be fully ready to return to work at the end of my EMDR treatment " [emphasis added].

672. In our view, it is also significant that on 5 March 2020 Dr Buture signed Mr MacLeod off until the end of April 2020. While we accept, as Dr O'Flynn confirmed, that generally detailed history is not taken when medical absence certificates are signed by a GP, a GP would still have to have some good reason to sign such a certificate. In this case, Dr Buture had been seeing Mr MacLeod since June the previous year. She had therefore had the most contact with him as well as knowing him best and was clearly able to form the view that he was not ready to return to work before the end of April 2020.

673. We accept that Dr Dominguez and Dr Garcia, at paragraphs 505 and 506, wrote letters, in Dr Dominguez's case stating Mr MacLeod had made a full recovery, and in Dr Garcia's case, he recorded Mr MacLeod as having made " a remarkable improvement after six months ". In the case of Dr Dominguez's letter, that is the high point of the evidence against Mr MacLeod but even that is qualified. Her opinion concludes by her saying that she does not have any concerns about him presenting with any difficulty that could become an obstacle for a normal and healthy return to work.

674. Dr Garcia, in stating that Mr MacLeod had made a remarkable improvement, did not state that Mr MacLeod had fully recovered.

675. This leads us to the medical evidence.

676. In relation to this question, Professor Fahy contended that Mr MacLeod had made a complete recovery. Dr O'Flynn was more circumspect. While he accepted that Mr MacLeod had improved, he firstly was of the view that Mr MacLeod was trying to give a good impression as he wanted to get back to work. Dr O'Flynn concluded that Mr MacLeod's mental health was on " an improving trajectory " and that " he ought to be well enough to embark on a return to work ". He was clear however that any return to work needed to be a carefully planned programme and it would have to involve some process by which Mr MacLeod and the Society cooperated.

677. We have concluded on this question that we prefer the evidence of Dr O'Flynn to that of Professor Fahy. We consider that Professor Fahy was overstating matters by contending that Mr MacLeod had made a full recovery. As Advocate O'Connell rightly reminded us, ultimately this question is one for the Jurats having regard to their experience and all the evidence they have heard. They have concluded that while Mr MacLeod was functioning socially, his recovery was very much dependent on being able to achieve a return to work 678. In relation to the letters from Dr Garcia and Dr Dominguez, we did not hear oral evidence from them and, as we have noted above, we were not able to address what their true opinion was. We have concluded that the most compelling evidence is the fact that Mr MacLeod was still signed off by Dr Buture until the end of April, Dr Garcia's last note of when he saw Mr MacLeod, together with Dr O'Flynn's opinion of Mr MacLeod. The effect of Mr MacLeod's dismissal 679. We next turn to deal with the effect of the dismissal on Mr MacLeod.

680. In relation to this issue, firstly we note that in their joint statement the experts agreed that if Mr MacLeod had not been dismissed and had been able to return to work in a congenial environment, his psychiatric disorder would have been resolved. Professor Fahy, in the joint statement and oral evidence, confirmed that " If Mr MacLeod had not been dismissed and had been able to return to work in a congenial environment, his psychiatric disorder would have resolved. However, if he had returned to a work environment where his confidence and leadership abilities were being criticised and assertively challenged, then he would have been at risk of relapse of depression ". Dr O'Flynn agreed with this statement.

681. Professor Fahy, did add that a gradual return to work to the same work environment would not have been likely to have been successful. He contended that it would have required other adjustments rather than just a graded return to work environment. In cross-examination, at times he suggested that Mr MacLeod would have reacted badly to dismissal regardless of preceding events. This led him to state that if Mr MacLeod thought he was being dismissed for any unfair and unreasonable reasons, then he would have become depressed. He however recognised that the complaints of Mr MacLeod which he described as the " so-called acts of bullying " made matters worse. He therefore accepted that the background of perceived bullying and Mr MacLeod's perception of the behaviour of his colleagues was a factor driving his depression.

682. The conclusion the Jurats have reached having listened carefully to all the evidence of Professor Fahy and Dr O'Flynn is that the dismissal of Mr MacLeod caused a " relapse ". This follows on from the Jurats' finding that while Mr MacLeod had improved, he was not fully recovered. At the point of his dismissal, he was therefore still suffering from the adjustment disorder which led to him being signed off at the end of May 2019.

683. This takes us to the decision in Johnson . The claim in Johnson was that Mr Johnson claimed damages because of the manner in which he had been dismissed. The company had not given Mr Johnson a fair opportunity to defend himself and had not complied with its own disciplinary procedure. This led Mr Johnson to claim that the manner and the fact of his dismissal caused him to suffer a mental breakdown.

684. In this case, Mr MacLeod clearly has not been treated fairly in the manner of his dismissal. As the chronology of events shows, he was exploring a return to work and arranging a meeting with Ms Williams. Yet his employment was then abruptly terminated. In setting this out, we are of course aware that Mr MacLeod has been compensated for the manner of his dismissal by the agreement he reached settling the claim he brought before the employment tribunal.

685. The distinction Mr MacLeod has therefore sought to bring is that the rule in Johnson does not apply because the Co-op had already caused damage to Mr MacLeod. We have accepted that the Co-op did breach its duty and that damage was reasonably foreseeable. This requires us to determine whether Mr MacLeod's injuries were caused by his dismissal or by the pre-dismissal breach of duty by the Co-op.

686. As noted at paragraph 185 above, the challenge of having to draw such distinctions was explored in Eastwood . As we have quoted at paragraph 191 above, at paragraph 29, Lord Nicholls recognised that one exception might be a case where an employee has suffered financial loss from psychiatric or other illness caused by pre-dismissal unfair treatment. In such cases, he accepted the principle that such an employee has a common law cause of action which precedes and is independent of a subsequent dismissal.

687. He recognised that in some cases a line might have to be drawn which was artificial leading to his observations at paragraph 31 and, in particular, the final sentence which we have emphasised at paragraph 192 above, namely that judges in tribunals may have to decide whether the fact of dismissal was the last straw or whether the onset of the illness occurred before he was dismissed.

688. In our judgment, the dismissal of Mr MacLeod was not the last straw which proved too much; rather, as we have found, it caused a relapse of an illness which had been caused by the Co-op and which was reasonably foreseeable. We have therefore concluded that Mr MacLeod does fall within the Eastwood exception and the fact of his dismissal, even though it made matters worse for him, is not a bar to the present claim.

689. Advocate Heywood rightly warned about the floodgates argument which the majority in Johnson were anxious to prevent. However, while we are conscious of the impact of this decision, we do not consider that it gives rise to the sort of concerns that Advocate Heywood expressed.

690. The present case based on our findings is not simply a case of stress at work or problems outside work affecting an employee's performance in the workplace. If employers in such scenarios choose to dismiss employees which then causes a psychiatric injury, the employee's remedy is limited to tribunal claims. If the amount of compensation that can be recovered is inadequate in a particular case, because of limits imposed by the legislature, in this case the States of Jersey, then that is a matter for the legislature, not the courts or tribunals.

691. What the present case is about however is a pre-termination breach of duty. In our judgment, it should not matter whether the injury suffered by an employee due to a breach of duty by an employer is physical or psychiatric. The employer should not be able to escape liability for the damage caused by that injury because they choose to dismiss the employee. We accept in relation to psychiatric injuries that the injury has to be foreseeable but otherwise the fact that an employer chooses to dismiss an employee who has suffered an injury caused by that employer should not in either case operate as a bar to a claim. Accordingly, this part of the Co-op's case fails. Were that not to be the position, it would encourage employers to dismiss employees whom they had caused psychiatric injury to in breach of duty in order to avoid liability for causing such injury or to limit the amount of damages that are recoverable. We do not consider that the dividing line as recognised by Eastwood should be drawn in such a way.

692. We also do not accept that the refusal to engage with Mr MacLeod about a return to work was part and parcel of the dismissal. While in one sense that is true, the refusal to engage took place at a time where the Co-op had acted in breach of duty to Mr MacLeod. The refusal was therefore a continuation of that breach. The Co-op could have chosen to engage and try and see whether matters could have been resolved. In doing so, the Co-op effectively refused to attempt to mitigate or alleviate the damage it had already caused.

693. We also do not accept Advocate Heywood's argument that the Co-op always had the right to dismiss its CEO. While in one sense that is true, for the Board of the Co-op to have dismissed Mr MacLeod in the way they did was without justification and without a process and having caused him injury, of which they were aware, was a further breach of the obligations they owed to Mr MacLeod. The Co-op cannot avoid its responsibilities for its actions by simply relying on a general principle that an employer is always entitled to dismiss an employee.

694. We also do not consider that the decision in Edwards assists the Co-op. While it upholds the principle of Johnson , as noted at paragraph 204, the Johnson exclusion area did not apply where " the loss claimed can be regarded as occurring quite independently of the dismissal ". On the facts of Edwards , Mr Edwards' claim was based on findings of misconduct made by the disciplinary panel which then led to his dismissal. We quite understand in that case why it was not possible to separate the complaint made by Mr Edwards from the fact or manner of his dismissal. This is very far removed from the pre-dismissal breaches of contract that occurred in the present case. Quantum 695. In view of our findings on liability, we now turn to deal with what loss Mr MacLeod suffered as a result of the Co-op's breaches of duty. The effect of the settlement 696. Firstly, we address the argument of Advocate Heywood that the compromise agreement signed by Mr MacLeod meant that he could not claim special damages if we otherwise found in favour of Mr MacLeod because of the terms of clause 4 of that compromise agreement (see paragraph 486 above).

697. Advocate Heywood advanced this contention because Mr MacLeod had claimed discrimination before the tribunal. For discrimination claims, the tribunal had a power up to a maximum of £30,000 to award damages, including financial loss for discrimination. We add that at the time that Mr MacLeod settled, this limit was capped at £10,000.

698. Advocate Heywood further relied on Article 86 of the Employment (Jersey) Law 2003 as amended in support of this submission. Article 86 relates to the jurisdiction of the employment and discrimination tribunal in respect of individual employment disputes. Article 86(3) provides that the tribunal shall have jurisdiction, except in an employment dispute which "(b) includes a claim for damages or personal injuries" .

699. Advocate Heywood contended that Article 86 meant that an employee could still claim general damages for pain and suffering before the Royal Court, even though he had bought a claim before a tribunal but he could not claim special damages, at least where a claim in discrimination had been made.

700. We cannot accept this argument. It certainly does not apply to claims brought by employees who have suffered personal injury claims generally and are later dismissed. Advocate Heywood was unable to produce any authority to show otherwise.

701. Secondly, there is nothing on the face of Article 86(3) itself to suggest that claims of personal injuries are limited to claims for general damages only. We would expect such a significant decision to be set out expressly in a statute. The fact that it does not do so is consistent with our interpretation that all claims for personal injuries, whether for general damages or special damages, do not form part of the Employment and Discrimination Tribunal's jurisdiction.

702. We also do not see why discrimination claims should be treated any differently from a claim of unfair dismissal even if a tribunal has awarded some compensation for financial loss. Rather, we consider the correct way to deal with such a scenario is to ensure there is no double recovery. If therefore an employee has before the tribunal brought a discrimination claim and has recovered financial loss (up to the current maximum of £30,000), the employee should give credit for that recovery in any subsequent personal injury claim such an employee might successfully bring. The fact of such an award should not however be a bar to an employee bringing such a personal injury claim.

703. In this case, in addition, the tribunal has never adjudicated upon Mr MacLeod's claims as the matters were settled. We therefore have concluded that the words in clause 4 of the compromise agreement mean that Mr MacLeod was entitled to bring any personal injury claim without limitation, notwithstanding the settlement of his unfair dismissal and other claims he brought before the tribunal.

704. In light of this conclusion, we now turn to consider what damages Mr MacLeod should recover. General damages 705. We start by dealing with Mr MacLeod's claim for general damages for pain and suffering. In reaching our conclusion, we have had regard to the Judicial College guidelines, which are regularly taken into account for personal injury claims in this jurisdiction. The latest version of these guidelines was issued in 2025.

706. In respect of psychiatric damage generally, the guidance in chapter 4 stated as follows: "Section (A) - Psychiatric Damage Generally The factors to be taken into account in valuing claims of this nature are as follows - ( i )the injured person's ability to cope with life, education, and work; (ii) the effect on the injured person's relationships with family, friends, and those with whom he or she comes into contact; (iii) the extent to which treatment would be successful; (iv) future vulnerability; (v) prognosis; (vi) whether medical help has been sought." 707. For moderate claims, the guidance says this: "(c) Moderate While there may have been the sort of problems associated with factors ( i ) to (iv) above there will have been marked improvement by trial and the prognosis will be good. Cases of work-related stress may fall within this category if symptoms are not prolonged." 708. We also note that in the moderately severe section, the guidance includes this: "Cases of work related stress resulting in a permanent or longstanding disability preventing a return to comparable employment would appear to come within this category." The range cited is £23,270 to £66,920 709. In relation to Mr MacLeod, the damage he suffered has continued from when he first signed off up to and including this trial. Both medical experts were agreed that he would only make a recovery following conclusion of the trial and dependant on the outcome of that trial. Given the conclusions we have reached, we consider that there will be marked improvement in Mr MacLeod (we certainly very much hope this is the case) and, by reference to the views of the experts, his prognosis will be good in the light of the conclusions we have reached.

710. In this case, Mr MacLeod has suffered his injury since May 2019.

711. Accordingly, the Jurats are clear that the damages claimed generally fall within the moderate section. However, they have gone beyond this band because this is a case where Mr MacLeod, whatever the extent of his duty to mitigate the losses he has suffered will never return to the same status that he previously enjoyed. They therefore agree to Mr MacLeod's request of a claim for general damages of £30,000.

712. In relation to the second part of Mr MacLeod's claim which was for handicap on the labour market, we do not consider it appropriate to make any award under this heading because instead we have awarded Mr MacLeod compensation for his past and future loss of earnings for the reasons explained shortly.

713. Mr MacLeod also claimed the sum of £10,000 for loss of congeniality of employment because his employment was the source of exceptional pride and great congeniality to him. As a consequence of his illness and his removal from his role, he suffered such a loss. The Co-op resisted this on the basis that Mr MacLeod's losses were caused by his dismissal. As we have found against the Co-op on this ground, and we accept Mr MacLeod's submissions on this point, he is also awarded £10,000 to reflect loss of congenial employment.

714. Mr MacLeod is also entitled to interest on the general damages awarded in the sum of £40,000 from the date proceedings were served in May 2022. Special damages 715. In Section B of his Schedule of Loss, the Plaintiff calculates his past loss of earnings, including loss of earnings up to the end of 2024. The total amount claimed is £1,478,031. We accept the basis of these calculations.

716. However, these figures need to be updated when this judgment is handed down. We therefore suggest that past losses of earnings are calculated up to the end of 2025 on the basis of the calculations set out by Mr MacLeod in his Schedule of Loss.

717. At the same time, we need to be addressed on the question of interest. It would be wrong for Mr MacLeod to obtain interest from the date he commenced proceedings because he would only have received these earnings on an annual basis. Subject to further submission from counsel, given that the claim for past loss of earnings runs from the beginning of 2021 to the end of 2025, we suggest that Mr MacLeod is awarded interest from January 2021 at half the Court rate. However, we are open to other ways of approaching the question of interest.

718. In respect of future losses, there were two issues for us to consider: (i) Whether Mr MacLeod would have continued as CEO until the age of sixty-seven as he contended; and (ii) Whether Mr MacLeod should give any credit for his duty to mitigate the losses he claims.

719. We will deal with each of these in turn. Mr MacLeod's retirement age 720. In relation to whether Mr MacLeod would have continued until he was sixty-seven, this was based on Mr MacLeod having spent the entirety of his career with the Co-op. His position was also supported by the expert evidence of Mr Gilbert. However, Mr Gilbert's report simply recorded what he had been told by Mr MacLeod and did not contain any separate analysis as to why he considered Mr MacLeod would have remained until he was sixty-seven. Nor did he offer any convincing analysis when cross-examined.

721. In relation to Mr McNaught, he approached this question by reference to general statistical evidence by reference to how long chief executives in the UK normally remain in post. We were not persuaded by this evidence either. The Jurats were therefore left in a position of having to form their own view.

722. In reaching their conclusion, they were influenced firstly that both predecessors of Mr MacLeod retired at the age of sixty. Mr Smith in particular had remained in place for a long period of time. We also note that Mr MacLeod's successor, Mr Cox, is still in post. We do not therefore accept that the Co-op is the sort of organisation where there is a high turnover of chief executives who only remain for a few years. The general trend is that CEOs remain for a lot longer period than is the case for businesses in the UK.

723. However, Mr MacLeod was appointed as CEO aged forty in 2010. If he were to have emained until he was sixty-seven, he would have been in post for some twenty-seven years. By any standards, that would be a remarkable achievement and in our view highly unusual. Applying their general knowledge and experience, the Jurats have not therefore been persuaded that Mr MacLeod would have remained beyond the age of sixty. The burden of proof is on Mr MacLeod to do so. We have reached this conclusion partly because this was an age when his two predecessors retired. In addition, by the time he is 60, and had he remained with the Co-op, Mr MacLeod would have been in place for some twenty years. The Jurats therefore recognised that by that point in time, the then Board of the Co-op would have concluded that it was time for a change and that it was time to have fresh ideas.

724. Accordingly, we have concluded that Mr MacLeod would have retired at the age of sixty, i.e. on 21 January 2030. Mr MacLeod is therefore entitled to future loss of earnings from the date of this judgment up to this date. Subject to the question of mitigation and early receipt of these monies which we address next, his loss of earnings should be calculated on the same basis as he has calculated his past loss of earnings, including pension rights and loss of other benefits.

725. This is subject to two points. Firstly, as these losses relate to future earnings, Mr MacLeod must give credit for these earnings being received early and will have to re-calculate his future loss of earnings up to the age of sixty by applying the appropriate multiplier. We hope that this calculation can be agreed but we will rule on any dispute about it. The question of mitigation 726. Secondly, in relation to the question of mitigation, firstly the medical experts were agreed that the effect of Mr MacLeod's illness following his dismissal has not improved and will not improve until after conclusion of the litigation. We do not therefore consider that Mr MacLeod should be required to give any credit for the period of time while he has been trying to prove his claim when that claim was not accepted by the Co-op. We do not consider that Mr MacLeod was in any position to look for alternative employment until his claim had been resolved.

727. We further consider that notwithstanding this judgment which may be of assistance to Mr MacLeod, he has also had to go through the stresses and strains of litigation for some five years. He will not therefore recover overnight. Both medical experts recognised that he will need further treatment which will last about six months. Until this treatment is concluded, we do not consider that Mr MacLeod should be under any obligation to give credit for future employment opportunities.

728. We have therefore concluded that Mr MacLeod is unlikely to immediately start to achieve any level of earnings until another six months has past following the completion of the further treatment that both experts agree that Mr MacLeod will need. Accordingly, we do not consider that Mr MacLeod will start to achieve any further earnings until the beginning of 2027.

729. In relation to those earnings, by reference to the evidence of Mr McNaught, the Co-op contended as follows: " i . Option 1 - Engaged in consultancy work on a self-employed basis, with likely annual earnings as follows - Year 1 €70,375.00 Year 2 £156,750.00 Year 3 £198,250.00 or ii. Option 2 - Obtained employment or pursued self-employment in the recruitment sector, with likely annual earnings as follows - Years 1-5 £55,000.00 - £75,000.00 Years 6 + £75,000.00 - £90,000.00. c. Had the Plaintiff pursued Option 1, his net earnings over the period March 2021 - June 2025 would have been approximately £475,850.00. d. Had the Plaintiff pursued Option 2, his net earnings over the period March 2021 - June 2025 would have been approximately £184,450.00. e. Applying an average of the above two figures, the Plaintiff's net earnings 'but for' over the period March 2021 - June 2025 would have been approximately £330,150.00." 730. While we have rejected this argument in relation to the period prior to 2025, the analysis still applies in relation to claims for loss of earnings from 2027 onwards. At paragraph 234 of his report, the Phase 1 model was broken down as follows: Activity Gross earnings NED (as per previous model) Year 1 £17,250 Year 2 £19,250 Year 3+ £39,250 Management consultant retainer Year 1 £0 Year 2 X1 £50,000 Year 3+ X1 £50,000 Business adviser / consultant @ £750 - £1000

per day x days (Retail and mutual societies) Year 1 £13,125 Year 2 £26,250 Year 3+ £42,750 Coaching courses a) Group - £250 per person per day x 10 x 4 days x 4 courses per annum from Year 1 onwards £40,000 pa b) one to one - £250 per hour x 5 hrs x 5 days from Year 2 onwards £6,250 pa Recruitment assignments @ £5000 x 0 Year 1 £0 x 3 Year 2 £15,000 x 4 Year 3+ £20,000 Total Gross Year 1 £70,375 Year 2 £156,750 Year 3+ £198,250 731. The alternative was Mr MacLeod acting as a recruitment consultant or head hunter which Mr McNaught described in the following way: "235. Phase 1 - Model 2 - Recruitment Consultant/ Headhunter - Jersey based £55,000 - £75,000 (Doherty Group/Morgan Mckinley Salary Guides) £75,000 - 290,000 after 5 years 236. After a period as an employed recruitment consultant Mr MacLeod could set himself up as an independent consultant/ headhunter for the Jersey labour market with projects generating income of £5,000 to £30,000 per assignment dependent upon level of seniority of posts or average £10,000 x 15 posts per annum = £150,000." 732. In relation to the Phase 2 approach, this was based on earnings in the charity sector of up to £90,000 and also an executive post in retail where earnings had a mid-point of £134,500.

733. Mr Gilbert was critical of the idea that Mr MacLeod could work in recruitment. This was his background and he was of the opinion that Mr MacLeod simply did not possess the skills to do so. He also felt that the overall approach of Mr McNaught was overstated.

734. Again, therefore, it is a matter for the Jurats to form their own view on opportunities available to Mr MacLeod. In relation to the various suggestions put forward by Mr McNaught, the Jurats have reached the following conclusions.

735. Firstly, they agree with Mr Gilbert that Mr MacLeod would not be able to mitigate his loss by acting as an employment recruitment consultant. The main opportunities in Jersey in such a field, where there are a number of existing recruitment consultants operating, is in the finance industry. However, Mr MacLeod's background is retail. In the Jurats' judgment, Mr MacLeod does not therefore have the knowledge or experience within financial services to be able to set himself up as a recruitment consultant in any meaningful way.

736. Secondly, in relation to acting as a non-executive director, we accept that Mr MacLeod is well-known and therefore might find some opportunities as a non-executive director. However, like the recruitment sector, this market is highly competitive. Many opportunities arise because individuals have a pre-existing relationship with a structure or a family or an organisation, e.g. because they have acted as a professional adviser in some capacity and there is a wish for them to continue following their retirement. Mr MacLeod will not have those sorts of opportunities. However, we accept that his background in retail may lead to him being offered some form of non-executive directorships in areas where retail or Mr MacLeod's general commercial experience is seen as being of value.

737. For the same reason, the opportunities in respect of acting as a consultant are there but it is again a competitive market and much will depend on how much potential clients see Mr MacLeod as someone who can assist or help. The same also applies to coaching courses.

738. In relation to the charitable sector, there are a number of charities in Jersey and Mr MacLeod has acted as trustee of one well-known charity. While we have no doubt that Mr MacLeod may well be offered honorary positions, that is not the same thing as finding an executive post. Again, any such opportunity will very much depend on whether the particular charity sees a fit between its needs and the skills and experience that Mr MacLeod might bring.

739. While therefore there are difficulties with each particular area where Mr MacLeod might find employment, apart from recruitment, we consider that in one way or another Mr MacLeod's skills and experience will be valuable. We cannot say whether that is as a non-executive director or adviser or coach or working in the charitable sector. It may be a combination of these. However, we consider that the figures that he will earn are very much less than those put forward by Mr McNaught.

740. The Jurats therefore considered that Mr Gilbert's conclusion that Mr MacLeod will earn between £60,000 and £80,000 if he works in the charitable sector and around £50,000 if he works as a freelance coach is much more realistic. The Jurats have therefore concluded that these figures are in the right area but are slightly light. Accordingly, Mr MacLeod should give credit for future earnings from 2027 onwards up to the age of sixty of £75,000 per annum.

741. In light of these conclusions, when the judgment is handed down, the parties are invited to produce a final figure of the special damages awarded and deal with questions of interest, and the appropriate discount for future loss of earnings. Conclusion 742. For the reasons set out in this judgment: (i) We find that Ms Williams, Ms Carnegie and Ms Champion acted in bad faith from February 2019 until Mr MacLeod's dismissal. (ii) The Co-op failed in its duty of care to Mr MacLeod and caused him psychiatric injury. (iii) That injury was reasonably foreseeable. (iv) Mr MacLeod had not fully recovered by the time he was dismissed. (v) That dismissal caused a relapse. (vi) Mr MacLeod is therefore entitled to general damages including loss of congeniality in the sum of £40,000. (vii) Mr MacLeod is further entitled to past loss of earnings up to the end of 2025 in the manner he has calculated them, and future loss of earnings applying the same calculations until he reaches the age of sixty. (viii) Mr MacLeod is not required to give any credit for the duty to mitigate until 2027. (ix) Thereafter, he is required to give credit for future earnings at the rate of £75,000 per year. (x) The final figures for loss are to be determined when this judgment is handed down.

743. Finally, the Court wishes to thank both counsel and those supporting them for the hard work that went into this trial and the submissions provided by both counsel for which the Court wishes to express its gratitude. Authorities MacLeod v The Channel Islands Cooperative Society Limited [2024] JRC 109 . Wilkinson v Downton [1897] 2 QB 57 . O [A Child] v Rhodes [2015] UKSC 32 . Booth v The Viscount of the Royal Court of Jersey [2025] JCA 126 . Royal Court Rules. Sainsbury's Supermarkets Ltd v Mastercard Inc [2020] UKSC 24 . Jones v National Coal Board [1957] 2 QB 55 . Hatton v Sutherland [2002] EWCA Civ 76. Barber v Somerset County Council [2004] 1 WLR 1089 . Stokes v Guest [1968] 1 WLR 1776 AT 1883. Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512. Attica v British Gas [1988] QB 304 . Gogay v Hertfordshire County Council [2000] IRLR 703 . Johnson v Unisys [2003] 1 AC 518 . Eastwood v Magnox Electric plc [2005] 1 AC 503 . McDonald v Parish of St Helier [2005] JRC 074 . Employment (Jersey) Law 2003. Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] 2 AC 22 . Hard Rock Limited & Anor v HRCKY [2023] JRC 169 . Page Last Updated: 18 Dec 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII