Over recent years, there have been a number of positive changes in how people value their mental health and an improved understanding of just how much it impacts upon all aspects of individuals’ lives. As a result, more employers are making the mental health and well-being of their workers a priority. However, there is still a long way to go.

The latest statistics from the Health and Safety Executive (from 2018/2019) show just how hard work-related stress, anxiety and depression is hitting employees and employers in the UK:

• 600,000 workers suffering from work-related stress anxiety and depression (new and long-standing cases) in 2018/2019
• 21 working days lost per case on average
• 12.8 million working days lost
• 54% of all working days lost due to ill health
• 44% of all work-related ill health cases
• £5.2 billion annual cost of work-related stress, anxiety and depression

We are seeing a growing number of claims for psychiatric injury from employees who feel overworked and under supported, and those claiming that they have been bullied or harassed in the workplace.

An employee who believes that they have suffered psychiatric injury in the workplace may seek to pursue a claim against their employer for compensation in either the civil courts (for personal injury, breach of contract and/or under the Protection from Harassment Act 1997) or the Employment Tribunals (for constructive unfair dismissal and/or discrimination).

Claims for psychiatric injury have become a specialist area in their own right and we examine below how stress in the workplace can become the subject of such a claim.

Stress

Whilst it is accepted by the courts that there is no such thing as a pressure-free job, and that some pressure can be a good thing to keep employees 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.

An employer will not be found liable for any injury caused to the employee unless:

• The injury was reasonably foreseeable (foreseeability);
• The employer has breached the duty of care it owed to the employee (to take reasonable care for their safety, to provide them with a safe place of work, safe tools and equipment, and a safe system of working) by failing to take reasonable steps to prevent a foreseeable injury (breach of duty); and
• The employer’s breach of duty caused the employee’s injury (causation).

The Court of Appeal decision in Hatton v Sutherland [2002] ICR 613 (that was later approved by the House of Lords in Barber v Somerset County Council [2004] 1 WLR 1089) is still the leading authority and the majority of the principles established in that case still apply (unless otherwise noted below).

1) Foreseeability

What did the employer know (or ought reasonably to know) about the individual employee?  An employer is usually entitled to assume that the employee can withstand the normal pressures of the job, unless it knows of some particular problem or vulnerability, and also to take what it is told by his employee at face value, unless it has good reason to suspect otherwise.

Relevant factors to be considered are (1) the nature and extent of the work done by the employee and (2) any signs from the employee of impending harm to health.

2) Breach of Duty

In order to trigger the duty to take steps, the risk of harm to health arising from stress at work “must be plain enough for any reasonable employer to realise that it should do something about it”.

The employer will only be in breach of duty if it has failed to take the steps that are reasonable in the circumstances, by reference to the following factors:-

• Magnitude of the risk of injury;
• Seriousness of the consequences;
• What steps could and should have been taken;
• The cost and practicability of those steps, with reference to the size and scope of the employer;
• Effectiveness of those steps in preventing the harm; and,
• Any justification put forward for running the risk.

For example, in Barber v Somerset County Council [2004] 1 WLR 1089, Lord Walker said that, even though there may be no funds to address a situation and the existing staff are overstretched, that is not sufficient reason to take no action to support an employee – all reasonable steps must be taken. The employer also has a duty to ensure that an employee’s return to work is dealt with appropriately and that any agreed arrangements are followed through.

One of the principles in Hatton was that it was unlikely an employer would breach their duty of care where it provided occupational health services. However, more recent cases (notably, Intel Corporation (UK) Limited v Daw [2007] and Dickins v O2 PLC [2008]) have determined that this on its own will not be enough for an employer to discharge the duty of care in all cases (for example, where the action that was needed to prevent the impending harm was for managers to reduce the employee’s workload).

In rare cases where the only reasonable and effective step would have been to dismiss or demote the employee, the Court in Hatton found that the employer will not be in breach of duty in allowing a willing employee to continue in the job.

3) Causation

The employee must show that the employer’s breach of the duty of care caused or materially contributed to the injury. It is not enough to show that occupational stress has caused the harm.

The  amount of damages payable by the employer may also be reduced if the Court considers that it is appropriate, and possible, to take account of other factors that may have also caused the harm (for example, any pre-existing disorder or vulnerability, or, the chance that the claimant would have succumbed to a stress related disorder in any event). However, there is always a risk that the Court may consider that apportionment of damages is not appropriate and go on to find the employer wholly liable.

Bullying

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. 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 [2010] 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 [2006] IRLR 764, the incidents complained of, whilst not significant on their own, took place over a considerable period and 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.

Liability will be primary or vicarious.

For an employer to be primarily liable:

• The employer must have known, or ought they reasonably to have known, that the employee was being subjected to the conduct complained of and that such conduct might cause the employee psychiatric injury (foreseeability); and,

• The employer could, by the exercise of reasonable care, have taken steps which would have avoided such injury (breach of duty); and
• The employer’s failure to act caused the employee’s injury (causation).

If primary liability is not established, an employer can be held to be vicariously liable for the actions of an employee’s managers and colleagues if the bullying conduct alleged is “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 for their conduct.

Protection from Harassment Act 1997

Statutory harassment significantly widens the remit of psychiatric injury claims and employers can be primarily or vicarious liable. The Claimant does not have to suffer a psychiatric injury - mere anxiety and “stress” is sufficient. The limitation period is six years and 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 have known or ought to have known that their behaviour amounts to harassment. 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.

Conclusion

Stress at work, bullying and harassment 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.

How can Capsticks help?

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 and employment experts have considerable experience and expertise in investigating and successfully defending these claims; please get in touch with Nicola Green, Alistair Kernohan or Chloe Edwards for employment-related queries, or Jennifer Harris for those related to liability claims.