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Court of Appeal – Out of Step with the Mental Health of British Workers

12 June 2015

The below article was written by Howard Hymanson and was first published by The Times on 16 April 2015.

The Royal College of Psychiatrists recently reported that almost one in four British adults experience a diagnosable mental health problem at any given time. Business In the Community’s “Mental Health Champions Group” has pledged to have mental wellbeing recognised as a strategic boardroom issue. At a time when mental health disorders are recognised as being prevalent among the general public, should it still be considered exceptional for a robust employee to become ill when their livelihood, reputation and future employment prospects are threatened as the result of  unfair treatment at work?

All of us experience adverse life events, some of which can be a cause of mental ill health. In the workplace, bullying, excessive work demands or an unwarranted disciplinary process are often triggers. The landmark ruling in the 1995 case of Walker v Northumberland County Council clarified that, in principle, an employer owes its employees a duty of care to prevent not only physical, but also psychiatric injury, where the risk of such injury is reasonably foreseeable.

There has been an increase in the number of personal injury cases examining this duty of care in relation to psychiatric injury. The outcome of these cases often hinges on a court’s determination as to whether an employer could reasonably have foreseen that an employee may develop mental health problems as a result of the alleged ill treatment. Applying this test is challenging in practice and involves a subjective assessment by judges influenced by their own experience and assessment of human nature.

On many levels this is an unsatisfactory starting point as the outcome of these cases may be wholly dependent on the presiding judges’ perception of mental health problems in the workplace. This arbitrariness is demonstrated by the recent Court of Appeal decision in Yapp v Foreign and Commonwealth Office. In 2008, Mr Yapp, the High Commissioner in Belize at the time, was withdrawn from his post by the Foreign and Commonwealth Office following allegations of improper behaviour raised by an opposition politician, which were later proven false. As a result of this sudden withdrawal, Mr Yapp developed a depressive illness, which the High Court decided was reasonably foreseeable. However in a surprising reversal, the Court of Appeal concluded that unless there were indications, of which the employer was or should have been aware, of some psychological vulnerability on the part of the employee, an injury will not usually be foreseeable. The rationale was that an apparently robust employee, with no history of any psychiatric ill-health, would only in exceptional circumstances develop a depressive illness as a result of a setback at work, even if very serious.

It is ironic that, at a time when the value of promoting “wellness” in the workplace is being given greater prominence  the Court of Appeal’s approach indicates a denial of the extent to which many employees are susceptible to mental ill health, including those who have no prior history of illness. Until the law catches up with reality, many deserving employees will be left without an effective remedy and employers will continue to take liberties with the mental health of those to whom they owe a clear duty of care.

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