Business leaders recently wrote an open letter to Theresa May to apply pressure on the government to make good its election pledge to transform how mental health is regarded in the workplace.
They called for the Health and Safety at Work Regulations to be updated so that workplaces are required to make provision for mental as well as physical first aid.
There is little doubt that implementing the proposed changes would be a worthwhile step towards ensuring employers treat their duty of care for workers’ mental wellbeing as seriously as they do their physical health.
It is the economic costs, however, in terms of working days lost, that appear to be the motivation behind the clamour for decisive action to be taken now.
If the campaign is to really take hold, then employers – and indeed their insurers – must be faced with other serious direct monetary consequences when held liable for breaching the duty and where serious psychiatric injury has been caused as a result of their negligence.
Since the landmark ruling in the 1995 case of Walker v Northumberland County Council, it has been clear in law that in principle an employer owes its staff a duty of care to prevent not only physical but also psychiatric injury.
What is perhaps less well appreciated is simply how difficult recent case law has made the task of pursuing a duty-of-care claim against an employer. The outcome of these cases often hinges on a court’s subjective determination as to whether an employer could reasonably have foreseen that an employee may develop mental health problems as a result of ill treatment.
In the 2014 case of Yapp v Foreign and Commonwealth Office, the Court of Appeal surprisingly reversed the decision of a High Court judge. It found that unless there were indications that 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.
Many of us experience adverse events in life, some of which can trigger mental ill health. In the workplace, bullying, sexual harassment, excessive work demands or an unwarranted disciplinary process are often triggers. Can it still be considered exceptional for a robust employee to become ill, especially when their livelihood, reputation and future employment prospects are threatened as the result of unfair treatment at work?
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 members of the senior judiciary transform their perspective as to how commonly mental health issues occur and how easily they are triggered, many deserving employees will be left without an effective remedy.
This feature first appeared in The Times on 29 November 2018, which you can read here.