11 August 2022

I think it was Benjamin Franklin who said nothing in the world is certain but death and taxes. Well, for everyone who had to take a crash course in computer literacy during the pandemic (i.e. me), then I’d include stress within that quote. It doesn’t quite have the same ring to it, but if little else, it provides a segue into the fraught arena of workplace stress claims for psychiatric injury.

This area of the law was recently revisited in the Outer House case of T v W, 2022. It is a very interesting, but lengthy judgment, running to 228 pages.

Case details

In T, the pursuer was employed as a primary school teacher. She had been employed by the defender for many years, during which an informal, and then formal, process of assessing her competency was undertaken. This assessment resulted in her reaching an agreement with the defender to terminate her employment in 2017. She then raised a claim for stress at work alleging that the defender knew, or ought to have known, that she was at risk of suffering a psychiatric injury.

T sets out a useful reminder of the law applicable to stress at work claims resulting in psychiatric injury. As a recap, the leading case remains Barber v Somerset County Council, 2004, where Lord Walker stated; “the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know…”.

The Court in T relied upon the recent decision of the Inner House in K v Chief Constable of Police Scotland, 2020 quoting its judgment at paragraph 71 that “In all of this, whether or not a duty of fair treatment arises, a claim can only succeed against an employer if the employer, or in a vicarious case the employee taking the action, knew or ought to have known that the action would be likely to cause psychiatric harm to the affected employee. That must depend upon what the employer, or the employee taking the action, knew, or ought to have known, about the employee who is to be affected.”

The defender’s position in T was that it was not aware of the extent of the pursuer’s pre-existing mental health issues. The first note of the pursuer suffering anxiety appeared on a GP issued medical certificate in 2009. The reason for absence was noted as anxiety/depression. Whilst this was in the pursuer’s HR file, it was not made available to any of her head teachers. The Court criticised the defender for not having a policy of checking an HR file prior to beginning the competence process, although had this check been carried out, the Court’s view was that the general nature of the absence reason was not sufficient to infer the defender should have reasonably foreseen the competence process would expose the pursuer to a risk of psychiatric injury.

Ultimately, T’s claim failed. The Court held at paragraph 298 of its judgment that “I do not accept that the defender is liable if all it could foresee was an increased risk of injury. Lord Reed refers to the need for a “material” risk. Simon Brown LJ (as he then was) refers to a “real” risk. Mere elevation of risk is insufficient. Whether the employer should foresee a material elevation of risk of psychiatric injury depends on the information known to the employer and whether the employer has safeguards in place to alleviate the risk of psychiatric injury”.

T did not disclose her medical history at any time to her employer and, in the context of the case, it seems unlikely she would have volunteered this information. Subsequent medical certificates from her GP did include notes of stress at work. However, at this point she was engaged in the competence process. The Court was of the view that this process could be considered to be stressful for any employee. There was not enough information to consider that the defenders could have had knowledge that she was suffering from clinical depression or that it was foreseeable that she may develop, or suffer an exacerbation of, clinical depression.

The defender’s policy for the competence process included a general risk provision of providing a mentor. This was provided to the pursuer. The Court considered that, even though some of the pursuer’s conduct was indicative of clinical depression, neither her head teacher, colleagues, nor the HR department, possessed the expertise to recognise this. It was, therefore, entirely reasonable for colleagues to consider that any displays of stress could be as the result of a stressful work process.

Whilst the defender made arrangements for the pursuer to be referred to Occupational Health, the pursuer never granted her permission for the defender to access her medical records. In the absence of the extent of her prior mental health issues being made plain, the Occupational Health department was unable to refer her for treatment that may have been able to identify the extent of her symptoms / the possibility that she may have been vulnerable to suffering a psychiatric injury. Had she been candid with the defender from the outset, then her argument on the point of her being foreseeability at an increased risk of injury may have been more persuasive.

In reaching its decision the Court also considered two aspects relating to the defender’s potential liability. Firstly, was the defender’s approach of the entire process unbalanced? The Court held that it was not. It considered that the defender was aware of the ‘acute stress’ the pursuer was under during the competence process. The defender attempted to address this by making alterations to how the competence process was carried out. It attempted to reduce the ‘acute stress’ caused by the formal process in its making of allowances for the pursuer’s heightened vulnerabilities.

Secondly, was the defender’s approach inadequate? Again, the Court did not consider this to be the case. An action plan was agreed in consultation with the pursuer. Her Union representative was involved in the process. There was extensive occupational health involvement and the pursuer was referred for counselling. The defender acceded to a request for the pursuer to be moved to a different school when she felt that the relationship with her headteacher at her initial school had irretrievably broken down. Reports on the pursuer’s health from Occupational Health were made available to the defender and were not objected to by the pursuer.

The outcome

Ultimately, the Court was satisfied that ‘the defender’s policies and actions indicate that “positive thought” was given to the pursuer’s mental health needs.’ Short of instructing medical intervention, which the defender was not able to do, the Court did not consider that there was any more that the defender could have done to try and reduce the level of stress and anxiety stemming from the competence process, which it was obliged to carry out.

Case commentary

The fact that the judgment runs to 228 pages is indicative of the volume and complexity of the work involved in the preparation and defence of the claim. It is not, in the writer’s view, uncommon to find that the circumstances or events leading to workplace stress claims occur over a number of years, involve multiple witnesses and allegations. They are often complex and costly to investigate and defend.

Nonetheless, if one holds to the Barber criteria and applies this to what can be a smorgasbord of allegations and evidence, then matters can be kept focused. The defence can be presented efficiently and persuasively, as was the case in T.

Liability in stress claims can hinge on knowledge of an employee’s particular circumstances. If an employer is not alerted to any particular background of note, they only require to take such steps as expected of a reasonable and prudent employer.

Pursuers who bring claims against their employer for a psychiatric injury are likely to encounter significant difficulty if it can be established that the employer acted reasonably and did not or could not know that the particular employee could be affected by the course of action / policy to the point of developing a recognised psychiatric injury. This is bearing in mind the point that employees are expected to be able to handle an element of stress in the workplace which is a normal exigency of a workplace.

To bring this full circle, Benjamin Franklin also said (amongst other things) “It is better to take many injuries than to give one”. In the post-pandemic world of hybrid, remote and in-office working, this seems apt advice for employers when handling stress / mental health issues in the workplace.

For more information or to discuss any aspect of workplace stress claims, please contact:

Mark Hastings, Senior Associate: mfh@bto.co.uk / 0141 221 8012