Safeguarding psychological health: what employers need to know

Carl McGuire details how businesses can safeguard themselves from potential mental wellbeing-based occupational health claims

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Claims for mental health issues arising out of employment – collectively known as ’occupational stress claims’ although covering a wide variety of potential causes such as overwork, lack of support and bullying – are not new. They are, however, on the increase and employers would be wise to be alive to this. 

Such claims tend to fall into two broad categories: occupational stress; and bullying, harassment and discrimination.    

In regards to occupational stress, there is nothing inherently unhealthy or inappropriate about an employee being busy, feeling under pressure or being emotionally invested in a piece of work. This is experienced in many if not all types of employment at some point. 

The duty of care owed by an employer to an employee is not to ensure their safety or the absence of any foreseeable risk of injury, the duty is to take such care for their safety as is reasonable in the circumstances and not expose them to unnecessary risk of injury.

The duty of care in occupational stress cases is informed by the leading case of Hatton v Sutherland (2002), which sets out 16 principles to be considered by the court on the question of breach of duty in such cases. Further discussion of the applicable duty of care is beyond the scope of this article but in short foreseeability of impending risk of actual harm to health is key and, upon an employer being on notice of such an impending risk, an obligation arises to take positive steps in respect of such. 

It is possible for an employee to prove they have sustained psychiatric injury as a result of their work and for the claim to still fail as they are also required to prove that the injury was caused by a breach of the duty of care owed. 

Mental health issues relating to bullying/harassment and discrimination fall into two broad categories, and both can give rise to personal injury claims and claims in the employment tribunal. 

Under the Protection from Harassment Act 1997, employers can be held vicariously liable for acts of harassment committed by their employees. The bar is high and the conduct has to amount to be ‘… sufficient to sustain criminal liability under section 2 of the Act.’ (Majrowski v Guy’s and St Thomas’ NHS Trust (2006)). 

It is not uncommon to see allegations of bullying said to constitute breach of the common law duty of case in occupational stress cases where the behaviour is below this threshold.  

Discrimination in the workplace occurs when an employee is treated unfavourably due to a protected characteristic, so gender, sexuality, race, religion, pregnancy or disability. Such behaviour can cause mental health issues in the victim which can give rise to claims as above. 

Psychiatric injury is not required for an employment tribunal claim. 

Advice for employers

Employers cannot guarantee that their employees will not suffer mental health issues whether related to work or otherwise, nor are they expected to. Employers are expected to take such care for the safety of their employees as is reasonable in the circumstances. 

Practically the following will be important in preventing and defending claims:

  • Risk Assessments that cover the risk in question.

  • Documented procedures for grievances.

  • Identification of ‘Red Flags’, so requests for help, notification of issues etc. Taking positive steps to address such.

  • Provision for confidential discussion/advice.

  • Occupational health support being available and engaged as necessary.

  • Keeping records of interactions including emails and meeting notes.

  • Liaison with occupational health support and/or the GP before any return to work after time off due to work related psychiatric issues.

Carl McGuire is a partner at Plexus Law