04 June 2020

If you are an employer or insurer, you may wonder why you should read another article which deals with Covid-19. Here’s why.

A survey of 1,300 mental-health doctors in the UK shows a 43% increase in urgent referrals. Professor Wendy Burn, president of the Royal College of Psychiatrists feels there is the potential for a ‘tsunami’ of referrals due to the lockdown.

Large scale job losses are expected, and litigated claims are expected to increase, particularly when QOCS (qualified one way cost shifting) is introduced in Scotland, which you will recall removes (other than in limited circumstances) some of the financial risk associated with pursuing a claim. With an increasing awareness amongst the population of mental health issues; it is not hard to envisage this as being a potential area of growth for litigators.

Workplace stress

Let’s recap on the essential elements of a claim for work-related psychiatric injury: foreseeability, breach of duty, loss and a causal link. Dealing with these in turn:

1. Foreseeability. The case of Barber v Somerset CC confirms that a stand-alone psychiatric injury will usually not be foreseeable unless there were prior indications of a particular vulnerability. A more nuanced approach may now be necessary due to the additional pressures on all of us arising from the pandemic.
    
2. The employee needs to prove that the employer owes them a duty of care. Breach of duty may be thought of as failure to exercise the level of care reasonably expected in the circumstances. The effects of the pandemic may lead to more employers more frequently breaching the duty.
    
3. The loss suffered must be in consequence of a ‘recognised psychiatric condition’ such as a depressive disorder, alcohol use disorder, OCD, anxiety disorders or schizophrenia. The losses claimed for typically include solatium and loss of income.
   
   
4. If the hurdle of foreseeability of harm is established, the employee then needs to show that their loss was ‘caused by’ a breach on the part of their employer.

Liability will be established and a claim for psychiatric injury will succeed where:

(i) such harm was reasonably foreseeable regarding the particular employee;
(ii) the employer has breached their duty of care, and;
(iii) that breach has caused or contributed materially to the development of the psychiatric injury.

Covid-19 pandemic

The pandemic has led to wholesale change in the way that many of us work. Those who continue to work may have increased workloads. There may be an increased sense of competition amongst staff, who feel compelled to work longer hours. Employers may struggle to remotely support employees and monitor their workloads and wellbeing. With these factors in mind, there is a strong possibility of litigation on a large scale involving claims for personal injury or Employment Tribunal claims.

Prior to the Covid-19 pandemic, work-related stress, anxiety and depression was already widespread. Typical causes of stress include unreasonable deadlines and targets, increased responsibility, lack of support and restructuring. The annual cost of work-related stress has been calculated at approximately £5.2 billion, with approximately 57% (15.4 million) of all working days being lost due to stress-related illness. Claims arising from work-related stress are particularly time consuming to deal with for both employers and their legal advisors, and challenging to defend and investigate. Dealing with such claims on a large scale would place a substantial additional and unwanted burden on any employer’s resources. Any employer may be at increased risk of a claim arising out of the pandemic, if they fail to do the following:

• Risk assess the employee’s home-working conditions and provide adequate equipment.
• Adjust work targets.
• Provide proper support.
• Pay attention to the needs of individual employees, including those who are furloughed.

Disciplinary procedures and investigations

During the Covid-19 pandemic, employers should bear in mind that disciplinary investigations should not be unduly delayed. While in general terms employers, for a claim to succeed, have to be put on notice that an employee was displaying indications of a psychological issue, the severe impact of Covid-19 may be that otherwise robust employees become susceptible to developing a psychiatric condition. In a digital age, relying on the interruption brought about by the Covid-19 pandemic as a justification for delaying disciplinary proceedings, may not be viewed as reasonable by the Courts where the employee suffers psychiatric injury as a result.

Health and Safety Executive

The HSE are currently paying particular attention to the issue of stress at work. HSE inspectors are being provided with training in relation to stress management standards, as well as how to enforce them, suggesting that HSE may be preparing to start prosecuting employers who fail to safeguard the mental health of employees.

By taking account of and following The HSE’s ‘Management Standards’ an employer can demonstrate good practice. The Management Standards are:

• Demands – this includes workload, work-patterns and the work environment.
• Control – how much of a say the employee has in the way they do their work.
• Support – whether there is encouragement, from line management and colleagues.
• Relationships – this deals with the promotion of positive working and the avoidance of conflict.
• Role – whether the individual understands their role in the organisation.
• Change – the way in which organisational change is managed and communicated to employees.

If the HSE receives a complaint about stress in the work place, an inspection may follow, with the possibility of enforcement action.

You can download a free copy of the guidance booklet issued in support of the Management Standards by clicking on this link - https://www.hse.gov.uk/pubns/wbk01.pdf

Divisibility

The case of Barber confirms that ‘divisibility’ of injuries (the employer should only pay for that proportion of the harm which is attributable to their own wrongdoing) is a factor which is open to the Court to consider, however, this is not a straightforward concept to investigate and establish. Careful record keeping, including the involvement of Occupational Health and likely the involvement of a psychiatrist, may assist in distinguishing specific work-related stress from general stress arising from the pandemic or other factors.

Summary

It may be time for employers to give careful consideration to risk assessments and working practices with particular regard to mental health. With many employees now working from home, now may be a good time to consider whether they have been provided with suitable equipment, training and a risk assessment performed in relation to the home working environment.

If staff have been furloughed and workloads transferred to other staff, have you given consideration to the impact of this? An analysis of the employee’s workload and seeking their own opinion on whether they feel over-burdened may assist, along with that all important risk assessment, training and method statement, signed off on by the employee. Regular remote supervision contact is also particularly important when daily face to face conversations are no longer possible.

By undertaking each of the above steps, employers can have the best chance of identifying particular problems before they develop, and allow for the implementation of suitable control measures. This should allow employees to feel properly supported and to minimise the risk of claims materialising.

If you have any questions, please do not hesitate to contact Alistair Barbour, or your usual BTO contact.

Contact

Alistair Barbour, Associate E: awb@bto.co.uk T: 0141 225 5257