25 January 2005

A recent Court of Appeal judgment decided 6 appeals on the issue of employer’s liability for psychiatric injury suffered by employees owing to the pressures of work. The Court of Appeal found in favour of the employer in 3 of the cases:

In Hartman v South Essex Mental Health and Community Care NHS Trust, the employee disclosed to the employer’s occupational health department in a health screening questionnaire that she had suffered a nervous breakdown and that she was currently on medication. The Court found that because the questionnaire was confidential, knowledge of the employee’s medical condition was not imputed to the employer and there was nothing in her subsequent behaviour to suggest she was at risk of psychiatric injury.

The claimant in Best v Staffordshire University had not felt it necessary to attend the counselling service provided by the employer. The Court found that in such circumstances the employer could not be expected to have reasonably foreseen the employee’s breakdown.

The employee in Green v Grimsby and Scunthorpe Newspapers Ltd sent his employer a memo detailing his concerns about his workload and suggesting solutions. The employer took 5 days to consult with the employee’s colleagues and consider the suggested solutions before he responded. The Court found that this delay was reasonable in the circumstances, as the employer had taken time to consider the best course of action.

The employees successfully claimed compensation in these 3 cases:

The employer in Wheeldon v HSBC Bank Ltd was made aware of the employee’s mental condition by its occupation health department, and was advised of the steps it should take to avoid psychiatric injury. The bank failed to take these steps. Accordingly, the Court found that the bank was liable for the psychiatric injury suffered.

In Moore v Welvyn Components Ltd the employee was awarded damages for loss of earnings arising from a depressive illness caused by workplace bullying. It was the employer’s case that the award should be reduced to account for those factors unrelated to work which contributed to the employee’s mental illness. The Court found that once it was shown that the bullying was the cause of the loss of earnings, it was for the employer to show that there were other potential causes as well. The employer failed to produce such evidence.

The employee in Melville v Home Office had been employed as a prison officer who had to recover bodies of prisoners who had committed suicide. His employer recognised that these incidents were potentially traumatic and a system was devised for dealing with the risk of psychiatric illness. However, the employer failed to implement its own system and was found liable for the employee’s stress-related illness.

So what is expected from employers?

The judgment confirmed that each case must be determined on its own facts. Employers cannot apply a broad-brush approach.

An employer is likely to avoid liability if he:

• identifies the risk of psychiatric illness occurring and makes reasonable enquires of those at risk
• keeps abreast of any worsening condition
• measures the likelihood of injury occurring and the potential consequences if it does
• takes all reasonable measures to prevent the illness occurring, bearing in mind the probable effectiveness of such measures and the expense and inconvenience they involve.