Claims for psychiatric injury in the workplace16/08/18
We are seeing a growing number of claims for psychiatric injury arising from healthcare employees who are overworked and under supported, and those claiming that they have been bullied or harassed in the workplace.
We have even seen a claim involving a healthcare assistant who alleged that his employer had allowed him to be the subject of bullying and harassment outside the workplace. Claims for psychiatric injury have become a specialist area in their own right.
Whilst it is accepted that there is no such thing as a pressure free job, and that some pressure can be a good thing to keep us motivated, there is a difference when that stress causes psychological and physical ill health. A claim will not succeed if an employee has merely suffered stress, there must be a recognised psychiatric illness.
The injury must be reasonably foreseeable for there to be liability. The particular characteristics of the employee are relevant. The case of Hatton v Sutherland  ICR 613 is still the leading authority and the 16 point summary contained therein should always be considered.
Once a risk is foreseen, the employer has a duty to assess the problem and take reasonable measures to address it. In Barber v Somerset County Council  1 WLR 1089 Lord Walker said that even though there may be no funds to address a situation and that the existing staff are overstretched, that is not sufficient reason to take no action to support an employee. The employer also has a duty to ensure that the Claimant’s return to work is dealt with appropriately and that any agreed arrangements are followed through.
It must be established that the particular breach of duty caused the harm. It need not be the whole cause of the injury, it is sufficient to show that it made a material contribution. The conventional principle is that where these causes are divisible, an apportionment should be made. In Barber, the Court of Appeal commented that a “sensible attempt” should be made to apportion liability. However, this was not endorsed by the House of Lords, and this approach has attracted judicial criticism. In Dickins v O2 Plc  EWCA Civ 1144, the Court of Appeal indicated that the facts were strongly suggestive of an indivisible injury as in Bailey v MOD  EWCA Civ 883, although these comments were strictly obiter. Therefore, if there are other non-negligent contributors to the injury, but the negligence in the work place made a material contribution i.e. was more than negligible, the employer may be liable for the whole.
Cases involving sustained bullying are likely to give rise to psychiatric injury. Liability will attach only where the relevant acts can be properly described as bullying - a mere belief is not sufficient. The behaviour must be genuinely offensive or oppressive and unacceptable, or otherwise amount to bullying. There is a fine line between strong management and bullying. In Mullen v Accenture  EWHC 2336 (QB) the Court found that the use of blunt language and inappropriate banter by managers amounted to management that had not crossed the line.
In Green v DB Group Services UK Ltd  IRLR 764, the incidents complained of whilst not significant on their own, conducted over a considerable period amounted to bullying within the ordinary meaning. The implication is that once the behaviour comes out of the sphere of strong management and becomes deliberate and targeted, it is more likely to amount to bullying.
The bullying must be such that it will expose any employee of reasonable fortitude to the risk of psychiatric illness, even where there is no known vulnerability. The injury must be foreseeable.
Liability will be primary or vicarious. For an employee to be vicariously liability, the wrong must be “so closely connected” with what the employer authorised or expected of the employee that it would be fair and just to conclude that they are vicariously liable. In order to establish primary liability, the managers or HR department must know or ought to know about the course of conduct and that it might cause harm.
Protection from Harassment Act 1997
Statutory harassment significantly widens the remit of psychiatric injury claims. The Claimant does not have to suffer a psychiatric injury - mere anxiety and “stress” is sufficient. The limitation period is 6 years and cases which do not satisfy the foreseeability test in negligence and contract may succeed under the Act. The emphasis is on the behaviour and not its result.
In order to succeed, there must be a course of conduct on at least two occasions which is “oppressive and unreasonable”. It must be of an order which “would sustain criminal liability”. The person must know or ought to know that their behaviour amounts to harassment of the other. The person does not need to foresee that their conduct might cause harm, but they ought to know that it is likely to cause alarm or distress.
These claims are becoming more common. Owing to the nature of the allegations, full disclosure of historical documents is essential. Relevant documents are often lost owing to the passage of time. It is essential that each and every witness is asked to conduct a thorough disclosure exercise at the earliest opportunity in order to avoid possible evidential difficulties at a later date.
Damages and legal costs can be considerable. For this reason, it is important to involve your solicitors at the earliest opportunity following receipt of a complaint, or suspicion that an employee is being bullied or harassed, and immediately upon receipt of a claim so that we can ensure the necessary steps are taken to limit your potential liability. Our Insurance Team has considerable experience and expertise in investigating and successfully defending these claims. Our Employment Team is also available to assist in relation to these issues.