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Other significant/recent judgments relating to stress and mental health
[ch 3: pages 37-39]In Corr v IBC Vehicles Limited [2006] EWCA Civ 331, Thomas Corr suffered an accident at work for which his employer accepted responsibility. Following several operations, he suffered post-traumatic stress disorder, lapsed into deep depression and showed suicidal tendencies. He took his own life six years after the accident.
Eileen Corr, his widow, brought a claim under the Fatal Accident Act 1976, but the High Court dismissed it on the grounds that the suicide was not reasonably foreseeable. However, the Court of Appeal found in her favour. The evidence showed that suicide is “a not uncommon consequence of severe depression.” The judgment criticised the employer for failing to apologise to Mr Corr, even though expert advice was that this would have helped him deal with his depression.
In Talbot v WAGN Railways (UKEAT/0770/04/DA), Mr Talbot was a train driver with WAGN Railways. He suffered post-traumatic stress disorder after a member of the public died after jumping under the train he was driving. He was given a job on the ticket barrier, but after an argument with a member of the public, the occupational health physician stated that he should have a role with limited contact with the public. He was given a satisfactory role in the customer relations department, but soon after he lost his job during a restructuring. After time off sick he was dismissed.
The Employment Appeal Tribunal (EAT) found that failure to retain Mr Talbot in the customer relations department was a breach of the duty to make reasonable adjustments. The employer should have transferred him into a role in that department and considered adjustments to enable him to take up that role long-term.
In 2010, public services union UNISON supported Nanette Bowden, a former NHS manager who went on to win her claim at court. Ms Bowden was awarded £150,000 compensation for workplace bullying over a three-year period, after it led to a nervous breakdown.
In Roberts v the Governing Body of Whitecross School [2012] UKEAT/0070/12/ZT, an employer (in this case the school governing body) committed a fundamental breach of contract by withholding sick pay. It made no difference that the school made an honest mistake by misinterpreting the collective agreement containing the contract term. It mistakenly believed that mental illness suffered in the course of employment triggered an entitlement to half pay rather than (the correct) full pay sick pay. Roberts was entitled to resign and claim constructive dismissal.
The case of Gallop v Newport City Council [2013] EWCA 1583, showed that it is the job of the employer to make a judgment as to whether or not an individual is disabled. That judgment cannot be delegated to an outside third party, such as an external occupational health provider or a GP:
Mr Gallop suffered from repeated work-related stress and anxiety, resulting in periods of absence and several referrals to an external occupational health adviser. The adviser repeatedly told his employer, unambiguously, but without explanation, that Mr Gallop was not a disabled person for the purposes of equality legislation.
In a claim for disability discrimination, his employer argued that it could not be liable for disability discrimination and for failing to make reasonable adjustments, as it had no knowledge — actual or constructive — of the disability. It had sought expert advice and had been assured that Mr Gallop was not disabled, said the employer, and it should be entitled to rely on that advice. The Court of Appeal disagreed, ruling that whether or not someone is disabled is a judgment for the employer alone. In making that decision, an employer will rightly look for help and guidance from experts, but the employer is not allowed to rubber stamp the opinion of those experts.
Gallop v Newport City Council [2013] EWCA 1583
Recent cases concerning disciplinary and grievance procedures have confirmed that:
• refusing to delay a dismissal hearing for gross misconduct until after an occupational health appointment and report, where the claimant suffered from work-related depression as a result of the disciplinary process, is discriminatory (Hibbert v The Home Office & Others [2013] UKEAT 0138/13/2410); as is
• conducting a misconduct investigation into the activities of a branch manager suffering from depression without pre-warning him of the allegations, or allowing him to be accompanied to the investigation meeting, is discriminatory (Royal Bank of Scotland v O’Doherty UKEAT/0489/12/89).