Claims for psychiatric injury can be bought in the tort of negligence and under the statute for stress in the workplace. The Health and Safety Executive has commented that workers can regularly experience pressure at work which can be a good thing, the issue is when a worker experiences too much pressure and feels unable to cope that stress can become an issue. In law, the definition of stress is “an excess of demands upon an individual above their ability to cope”. Stress on its own will not be enough for a claim for psychiatric injury to be successful, it must be shown that the stress resulted in a recognised psychiatric illness.
Key elements of a claim for psychiatric injury
- a recognised psychiatric illness,
- a duty of case,
- foreseeability of injury,
- breach of duty; and
- causation.
These five elements must be proven for a claim for compensation for psychiatric illness to be successful.
Recognised psychiatric illness.
This element will be met by expert evidence from someone who is trained to assess and diagnose the illnesses.
Duty of Care
In the case of a psychiatric injury developed at work, it will not be difficult to establish a duty of care. As mentioned in the introduction above all employers owe a duty of care to their employees to take reasonable care of their safety. A duty of care is an obligation to ensure the health and well-being of another. In respect of an employer-employee, the employer has a duty of care(obligation) to take all reasonable steps to ensure their employee are safe at work.
Foreseeability of injury
For this element to be satisfied it needs to be shown that the employer knew or ought to have known that an employee would suffer the injury due to the stress of their job or workplace.
Essentially, this means that to fulfil the foreseeability element it must be shown that the employer could reasonably be expected to see that this employee may suffer a psychiatric illness due to their work or the working environment. What is reasonable will be in the discretion of the court but will relate to the particular employee and anything an employer would know or be expected to know about them.
It is important to note that this question must look at the employee and whether the employer could have foreseen the work could cause them a psychiatric illness rather than whether it could cause the average employee in a particular field to suffer a psychiatric illness. As such whether an illness was foreseeable will depend on the characteristics and circumstances of the individual.
the nature and extent of the work being done by an employee.
Employers should be more alert to employees who are overworked or in physically or mentally demanding jobs. It will be relevant whether others doing the same work are showing signs of stress or suffered illness due to their work. It is important to remember that the requirement of foreseeability relates to the individual in question, not the average worker.
Signs from the employee
Factors to be taken into account would be more absences from work than is usual for that employee, physical or psychological complaints. Although there must be a good reason to think this is related to stress from work rather than other causes.
Whether an employer knows of some particular problem or vulnerability suffered by that employee
If the employer is aware that the employee may be more likely to suffer a stress-related illness due to work, then this would be a factor that can be used to show the harm was foreseeable. Although an employer is usually entitled to presume that his employees are up to the usual pressures of the job. It is only where there is something particular about the employee or the job they are doing which increases the chances of the employee suffering a psychiatric illness that the employer should think harder about how to protect them.
An employer is generally allowed to take what he is told by or on behalf of the employee at face value
This means that in general if the employer is told that the employee is fine and has no problem in completing his work, whether that comes from the employee or someone who can speak on behalf of the employee, he is not required to probe further into the employee’s mental health. He can suggest the employee sees a mental health professional if they are showing signs of stress, but he should not without good reason ask the employee to provide him with medical information. As this would be an unacceptable breach of the employee’s privacy.
On the expiry of a medical note, the employer cannot assume that the employee is fit for work; although the employer can draw this conclusion where there is no further disclosure or explanation to the employer
This means that when a medical note expires an employer should not presume that the employee is cured of the illness on return to work when a sick note runs out if the employee tells the employer of the difficulties the work is having on their mental health and is, in particular, causing stress. This would mean the employer would be expected to take steps to protect the employee from harm.
Where the employee returns to work without making further disclosure to the employer, the employer can presume he is fit to carry on the work he was doing before.
Summary of foreseeability
For the harm to be judged to be foreseeable the indications that a person may suffer an injury due to the stress of their work must be plain enough for any reasonable employer to realise he should do something about it.
Breach of Duty
The duty imposed on an employer in respect of the safety of his employee is one of reasonable care. It will need to be considered whether the employer should reasonably have done more to protect his employees. What is judged to be reasonable will depend on:
- The likelihood of the harm,
- The seriousness of the harm which could occur,
- The cost and practicality of preventing it; and
- The justifications for running the risk of harm.
Examples of things an employer could do are:
- Give the employee a break,
- Transferring them to other work,
- Redistributing the work,
- Giving him some extra help for a while,
- Arranging treatment or counselling,
- Providing buddying or mentoring schemes.
It will be considered how reasonable it would be for the employer to take these or any other steps based on:-
- Size and scope of the business,
- Its resources; and
- Interests of other employees in the workplace.
For example, it may not be reasonable for the employer to make changes for the benefit of one employee that harm other employees.
In some cases, the only way to protect the employee will be to dismiss or demote them as there may not be any alternative work at similar pay.
Causation
For this element of the claim to be satisfied, it must be shown that the breach of duty by the employer made a material contribution to causing the illness. This means this element will be satisfied it is shown that the breach of duty was a reason for the cause of the illness, and it does not matter if it is not the only one.
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