Stress test: disciplinary action and stress
The Court of Appeal has summarised and clarified the correct approach to a psychological injury (namely, a depressive illness) caused by unfairly conducted suspension and disciplinary process. As Julian Hoskins explains, the Court of Appeal has built on the developing body of case law on stress at work claims and confirmed that, usually, damages for such claims will not be available where the employer believed that the employee in question was mentally robust and could withstand a serious set-back at work.
Employers are under a common law duty (arising under the tort of negligence) to take reasonable care for the health and safety of employees in the workplace.
In addition, it is an implied term of every employment contract that an employer must not damage or destroy the relationship of trust and confidence between an employer and employee.
In order to succeed in a stress claim, the employee must establish that the loss suffered was caused by the employer's breach and was not too "remote" – i.e. that the 'loss' (usually, and as in this scenario, a psychiatric illness) was reasonably foreseeable.
In the case reported below, the Court of Appeal considered whether it was reasonably foreseeable that an employee would suffer a depressive illness as a result of his summary withdrawal from his post as High Commissioner of Belize.
Mr Yapp was British High Commissioner in Belize. In June 2008, allegations were made regarding Mr Yapp's sexual misconduct at public functions and his bullying and harassment of his staff. Mr Yapp's employer, the Foreign and Commonwealth Office (FCO) withdrew Mr Yapp from his post with immediate effect and suspended him pending the outcome of investigations. He was offered counselling and told that if he was exonerated by the investigation, the FCO would do its best to find him another posting.
A disciplinary hearing (heard by the same person who undertook the investigation) took place and cleared Mr Yapp of the sexual misconduct allegations but upheld the complaints of bullying.
Following the disciplinary process, Mr Yapp became depressed. Even after his suspension was lifted, he was unable to return to work. He finally left his employment due to retirement.
He claimed that the stress resulting from his withdrawal from office and the unfair conduct of the disciplinary proceedings had caused his depressive illness and financial loss.
The High Court found that the FCO had acted in breach of contract and in breach of its duty of care by unfairly withdrawing Mr Yapp from his post, and Mr Yapp was entitled to damages.
In particular, the High Court found the following.
The FCO appealed.
In Yapp v Foreign and Commonwealth Office, the Court of Appeal (CA)
The CA's reasoning was as follows.
In making its decision the CA took the opportunity to review the case law on the foreseeability of work-related stress and found
The CA noted that, in reaching its decision, it had not attached any weight to the counselling services provided by the FCO. It said that the provision of counselling services is only relevant in 'ordinary' stress at work cases relating to excess workload and not where stress results from a one-off event, as in this case.
This decision is good news for employers in that it confirms that courts and tribunals will be reluctant to find that an employer is responsible for harm caused by a psychiatric injury unless there is evidence of a pre-existing vulnerability, or unless the employer's misconduct has been so atrocious that it could be anticipated that even a robust individual would be likely to suffer an illness as a result.
Although best practice would dictate that different people should undertake a disciplinary investigation and hearing, it is interesting to note here that the CA said that this does not always need to be the case. However, it seems that there were specific reasons here why the FCO felt that the same person should be involved in both processes; the CA may have reached a different conclusion if that had not been the case.
Finally, note that any counselling services that you offer may
well assist with defending a claim for stress at work related to
work load, but it is unlikely to assist if stress is caused by a
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