Poor treatment of employees in the workplace caught the media spotlight this summer following the award of more than £800,000 made by the High Court to Helen Green, who brought a successful claim for psychiatric illness suffered as a result of her treatment at Deutsche Bank (Green –v- DB Group Services Limited). In addition, Ms Green succeeded in her claim under the Protection from Harassment Act 1997 ("PHA"). In another case - Daw –v- Intel Corporation UK Limited - a former employee won damages of over £100,000 for psychiatric illness caused by work-related stress due to an excessive workload that was not reduced despite the employee’s obvious problems in trying to cope with it. This article looks at the lessons that can be learnt from these decisions.
A claim for damages relating to psychiatric injury or illness is brought in negligence. For an employer to be liable, the employee must establish that: (i) the employer owed a duty to take reasonable care for the health and safety of his employees; (ii) the employer breached that duty in relation to the relevant employee; (iii) it was reasonably foreseeable that the type of injury sustained by the employee would result from the breach; and (iv) the employee has suffered personal injury. In both the above cases, the High Court followed the principles set out by the Court of Appeal in Sutherland –v- Hatton (2002), which provides guidance on the circumstances in which an employer can be expected to have reasonably foreseen that an employee may suffer from psychiatric injury or illness from work-related stress.
In Ms Green’s case, she was bullied and harassed by a senior colleague who treated her in a "dismissive and hostile manner" and she was also subjected to a "relentless campaign of mean and spiteful behaviour designed to cause her distress" by other employees. This treatment was ignored by management despite their awareness of the unpleasant working environment in which Ms Green worked. Further, there was "a culpable want of care" on the part of the employer’s human resources department. The High Court referred to the fact that the claimant was a person who, to her employer’s knowledge, had suffered depression in the relatively recent past and had been prescribed appropriate medication. She was therefore to their knowledge more vulnerable to this condition than the population at large. Psychiatric injury arising from such stress levels was therefore reasonably foreseeable.
Ms Green’s treatment at work led to a major depressive condition for which she required hospitalisation. She suffered a further breakdown caused by the shock of her interpretation of an e-mail, which she believed to relate to her ongoing employment. The bullying and harassment which had caused the first breakdown had left her suffering from a psychiatrically vulnerable condition, and so this behaviour was a material cause of the second breakdown.
The High Court held that the employer had failed in its duty to take reasonable steps to protect Ms Green from the reasonably foreseeable harm caused by such behaviour. Further, her employer was vicariously liable for the injury she sustained as a result of the employees’ conduct because there was a close connection between their employment and the behaviour in issue. In addition, the treatment that Ms Green suffered constituted harassment under the PHA for which Ms Green’s employer was also vicariously liable, although damages for the financial loss resulting from the harassment were included within the damages awarded for consequential loss and damage arising from the psychiatric injury.
In Ms Daw’s case, she had suffered from two separate instances of post-natal depression after joining her employer. A year after her second episode of depression, she was promoted to a role with an excessive workload. Despite several attempts to draw her employer’s attention to the problems she was suffering, including the submission of a written report (which alluded to her previous episodes of post-natal depression) submitted after she had been found by her manager in a tearful and upset state, her workload was not reduced and Ms Daw suffered a mental breakdown and severe depression. When bringing her claim for psychiatric injury caused by work-related stress, she argued that her employer ought to have taken into account her particular vulnerability due to her previous bouts of depression. She argued in the alternative that her employer should have reasonably foreseen that her high workload, about which she had persistently complained, created a reasonably foreseeable risk of psychiatric illness.
The Court held that Ms Daw was a "capable, resilient employee" and that her employer could not reasonably have foreseen that two previous episodes of post-natal depression, from which she had made a full recovery, would increase her susceptibility to psychiatric illness arising from work-related stress. The Court also held that Ms Daw’s many complaints about her workload were not sufficient to imply that her employer should have reasonably foreseen that her workload posed a risk of injury to her mental health.
However, in the employee’s favour, the Court held that, by the time Ms Daw’s behaviour was appearing erratic and her health was clearly deteriorating, it should have been reasonably foreseeable to her employer that her excessive working hours were adversely affecting her health. Despite this, she was offered no support and her hours remained excessive. The Court held that Ms Daw’s employer was negligent in its unwillingness at this point to alleviate her workload to avoid psychiatric illness. Based upon Ms Daw’s existing psychological vulnerabilities which reduced her resilience to cope with work-related stress, her general damages were reduced by a third to reflect the high probability that Ms Daw would have suffered from depression, regardless of any steps the employer might have taken.
An important point to note from this case is that the Court gave short shrift to the defence put forward by Ms Daw’s employer that it had an employee counselling service and Ms Daw had not made use of this facility. On the facts of this case, the service was insufficient to satisfy its duty of care because the service was not designed to resolve workload issues such as this but instead to assist on a short-term basis with fairly minor issues.
In both these cases, the employees had a history of depression before suffering the psychiatric illness in relation to which they brought successful claims. Had the employers been alive to the possible vulnerabilities of these employees, they may have been able to obviate any legal action arising. Where employers are put on notice that employees have suffered, or are suffering, from depression or stress-related illnesses, it is prudent to manage these people properly and ensure that any issues they raise that might impact on their mental health are addressed in a timely and compassionate manner. Whilst employers must strike a balance between careful management and unnecessary probing, employers who turn a blind eye to employees working under excessive workloads or in a bullying atmosphere may be found liable for injury suffered by employees as a result of their exposure to a working environment conducive to psychiatric illness. As these cases show, damages for ensuing ill-health can be significant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
