Implied duty not to cause psychiatric harm

An employer owes its employees a duty not to cause reasonably foreseeable psychiatric harm (Walker v Northumberland CC [1995] IRLR 35, Dickens v O2 plc [2008] EWCA Civ 1144). A breach of this duty of care can lead to a personal injury claim for damages in the civil courts. In 2002, the Court of Appeal set out the principles for dealing with psychiatric injury claims arising from stress at work in the landmark case of Sutherland v Hatton [2002] IRLR 263.

The key to establishing liability in negligence for work-related injury, including psychiatric injury, is foreseeability. The question to be asked is, to what extent would a reasonable employer have foreseen this kind of harm to the particular claimant? In a claim based on psychiatric injury, a claimant is more likely to succeed if there is evidence that the risk of harm has been brought to the employer’s attention, for example through previous sickness absence linked to stress, or earlier mental health problems such as anxiety or depression, known to the employer. The employer’s liability is often triggered by failure to provide sufficient support when a person returns to work after a period of absence. See Barber v Somerset CC [2004] UKHL 13.

An employer is not automatically liable just because an individual has suffered stress as a result of work (Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6). Actual or constructive knowledge of the risk of psychiatric harm is required. This case also decided that an employer cannot be assumed to know of a pre-existing medical condition if it was disclosed confidentially to occupational health.

Similarly, employers accused of psychiatric harm caused by bullying are only likely to have breached the implied duty of care if they knew, or should have known, of the risk to the employee’s health.

There is an obvious cross-over here with the law relating to disability discrimination discussed in Chapter 6. Time limits are far shorter in the employment tribunal than in the civil courts — just three months, as opposed to three years for a personal injury claim in the civil courts.

In the following case a requirement for a driver to work without a reasonable break was found to be a breach of contract:

Employers are also liable in negligence if their employees act in a way that causes harm to a third party (such as an agency worker) to whom the employer owes a duty of care.