Difficulties in bringing a claim

The Scottish teachers’ union EIS says that, given the Courts’ approach, many claims fail to establish that it was, or ought to have been, reasonably foreseeable that an employee was at risk of developing a psychiatric illness.

It explains that it is not enough to establish that an employer might have foreseen that the employee “would at times be unsatisfied, frustrated, embarrassed and upset” or that the employee would suffer from time to time “stress, anxiety, loss of confidence and low moods” (Rorrison v West Lothian Council 2000 SCLR 245). In this case the judge set out that: “There is no suggestion that she (Ms Rorrison) has ever been diagnosed by a psychiatrist as suffering from a recognised psychiatric disorder, and there is no suggestion that her condition is recognised by any psychiatrist or body of psychiatric opinion as constituting a psychiatric disorder. It follows that an action based on negligence cannot succeed.”

In addition, the EIS says there is no duty in law to “protect an employee from unpleasant emotion such as grief, anger and resentment or normal human condition such as anxiety or stress” (Fraser v State Hospitals Board for Scotland 2001 SLT 1051). Instead, “it is only if [those symptoms] are liable to be suffered to such a pathological degree as to constitute a psychiatric disorder, that a duty of care to protect against them arises; and that it is not a reasonably foreseeable occurrence (reasonably foreseeable, that is, by an ordinary bystander rather than by a psychiatrist) unless there is some specific reason to foresee it in a particular case” (Rorrison v West Lothian Council, Lord Reed, 21 July 1999; 2000 SCLR 245).

The EIS says that other difficult or unhelpful Scottish cases and precedents include the following: Stevenson v East Dunbartonshire Council, Lord Bonomy, 29 November 2002; 2003 SLT 97; Taplin v Fife Council, Lord Philip, 17 December 2002; 2003 SLT 653; Green v Argyll & Bute Council, Lord Bonomy, 28 February 2002; and Cross v Highland and Islands Enterprise, Lord Macfadyen, 5 December 2000; 2001 SLT 1060, 2001 IRLR 336.

In some cases employers settle out of court. An EIS member received a record six figure settlement as a result of an occupational stress case in 2011. The employer failed to act upon repeated reports of excessive workload which led to the member suffering from stress-related psychiatric injury. This award was the largest single ever paid to an EIS member as a result of occupational stress.

The trade union solicitors Thompsons gives the following example where it was able to achieve an out of court settlement for the union member concerned: