During these unprecedented times, many employees are working from home in extraordinary work situations and, as a result of social-distancing requirements and reduction in non-essential travel for example, the ability of employers to monitor and check on staff is compromised.
Employers still have a duty of care to their employees to ensure that their employees are able to access a proper work environment with an appropriate work space area and to ensure that their employees are not experiencing any extreme pressures in these stressful times.
Claims against employers in respect of work-related psychiatric injury can be successful if the employee can establish a breach of duty by the employer, causation, and foresight of harm. The latter of those criteria is very important and an employee who goes on to sustain a psychiatric injury as a result of work-related issues must be able to establish that the employer was aware, or should have been able to make themselves aware of any predisposition of the employee to psychiatric illness, as well as any particular stresses that the employee is feeling as a result of work. This does not necessarily mean that they had suffered previous psychiatric illness and a simple matter of an employee raising issues with an employer in relation to the amount of stress they are feeling and that they are struggling to cope with the pressures of work is sufficient to put an employer on notice that there is a foreseeable risk of harm to the employee if matters are not addressed.
Claims for damages arising out of work-related psychiatric injury are common yet they can be difficult to establish. As indicated above, a Claimant will have to establish foresight of harm in such cases. If the employer can establish that it had no knowledge, or no reason to have any knowledge of a Claimant’s condition prior to diagnosis, for example, the Court will be in difficulty in concluding that the employer’s failure was sufficient to create a foresight of harm.
For example, in a fairly recent High Court case (Piepenbrock v LSE (2018)), a Claimant brought a claim for damages against his former employers for psychiatric injury. The background of the case is that, whilst he was employed by them, allegations of sexual misconduct were made against him. The person who made those allegations also provided details of the incident to colleagues in the same employment. The employer was alleged to have delayed too long in carrying out their investigations, refusing to engage in those investigations appropriately and, further, alleged to have failed to prevent the spreading of the information around the Claimant’s colleagues and peers. Subsequently, the Claimant was taken ill.
Despite the fact that he had no pre-existing psychiatric issues, he was, at that stage diagnosed as having narcissistic and borderline personality disorder, one of the traits of which is extreme reactions to perceived criticism. Whilst the High Court found that the employer had breached their duty towards the Claimant in failing to engage appropriately in the investigations, the claim failed on foresight of harm. The employer had no knowledge of the Claimant’s condition prior to the diagnosis and therefore the Court deemed that the employer’s failures were not sufficient to create a foresight harm. The claim therefore was unsuccessful.
As a result of the recent pandemic, the concept of the normal fortitude or resilience of an employee has changed. Everybody is under various degrees of increased pressure as a result of working from home, perhaps attempting to home school children, being unable to leave the house, concerns about relatives or friends they are unable to visit etc. As a result of these extreme times, people are far more vulnerable to a stress reaction.
It is of course difficult in those circumstances to establish whether any psychiatric illness resulting from this stress is related to work or is directly related to Covid-19. However, the duty of care of an employer is to ensure that they carry out appropriate checks on their employees, especially in these unprecedented times, and to ensure that employees have available all resources and assistance they require, and are not feeling excessively stressed or pressured by targets etc.
There is a big risk, at this time, for employees to succumb to psychiatric illness as a result of the different pressures and stresses of the day and employers must ensure that they have in place appropriate risk assessments and procedures to ensure the health and safety and well-being of their employees now more than ever.
The law in relation to work-related psychiatric injury is somewhat a minefield and, with the additional stresses being experienced during the Covid-19 pandemic, it is anticipated that far more employees will suffer work-related, and other, psychiatric injury during these extraordinary times.
Employees of normal fortitude may be more vulnerable in current times and employers should bear this in mind when considering the likely impact on employees
Should you wish to discuss any potential claim for damages arising out of work-related injury, be it psychiatric or physical, please do not hesitate to contact our Janine Griffiths on 02920470909 or [email protected].