High Court personal injury claims

Where bullying results in psychiatric injury that the employer should have foreseen, it may sometimes be possible to bring a claim for personal injury in the civil courts.

Although large compensation awards involving bullying hit the headlines from time to time, it is important to control members’ expectations. High court cases involving psychiatric injury are extremely complex, risky and very expensive. They are only ever appropriate in cases of severe injury, with long-lasting damage to health and employment prospects.

A member wanting guidance on this kind of claim should take legal and medical advice as soon as possible.

There is a three-year deadline for bringing personal injury claims in the civil courts. However, it is very important not to leave seeking advice until the last minute, especially as the member is likely to need expert help making sure they have good evidence to show that the bullying incidents took place, expert medical evidence as to the effect of the bullying, and detailed financial evidence of the losses suffered.

Here are some of the issues a member will need to consider when deciding whether to bring a potential claim:

• How long ago did the incidents take place?

• What is the evidence of the bullying incidents? How long, over what period, how serious, how many members of staff were involved?

• Is there evidence of bullying elsewhere in the organisation — any evidence of a bullying culture, either currently or in the past? Did the employer know about the bullying?

• If not, would a reasonable employer have known about the bullying?

• What actions did the employer take to stop it and punish the perpetrators?

• What was the psychological impact of the bullying on the worker?

• What other factors (for example, problems outside work, or pre-existing mental health conditions) contributed to the psychiatric harm suffered by the worker?

• Would a reasonable employer have foreseen that the bullying would have resulted in this sort of psychiatric injury to this particular worker?

• What did the employer know about the worker’s health and vulnerability to psychiatric injury?

• What steps would a reasonable employer have taken?

• Would these steps have avoided the psychiatric injury?

In particular, to succeed, a claimant must prove that their employer should have known of the risk that the bullying behaviour would cause them psychiatric injury.

A court will not assume that an employer knew about confidential health information that was disclosed to the employer’s in-house occupational health provider (Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6).

In Yapp v the Foreign and Commonwealth Office, the Court of Appeal ruled that the law entitles employers to assume that someone who is apparently healthy, and with no history of psychiatric ill health, can endure “even a very serious setback at work” without developing a depressive illness:

Another recent case has confirmed that the fact that an employer knows someone is on medication such as anti-depressants is not enough to alert them to a need to take special care (Easton v B&Q [2015] EWHC 880).