People, Culture and Law Conference 2023 - Mental Health: The Legal Perspective

Mental Health: The Legal Perspective Sue Kelly, Partner

Questions • What is the often spoken about “duty of care” towards employees?

• Is there an obligation to look after people’s “wellbeing”?

Context • Negligence • Statute (Health & Safety at Work Act, WTR, Equality Act,

Protection from Harassment Act, unfair dismissal) • Breach of contract

Negligence (overview) •

The breach of the duty of care they say their employer has committed that has given rise to the injury they have suffered.

•

That the injury they have suffered is an actionable physical or psychiatric injury.

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That it was reasonably foreseeable that the employer's breach of duty would result in the injury suffered.

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That the breach of duty caused the injury complained of.

Negligence – Duty of Care Employers have a duty to take reasonable care for the safety of their employees; they have a duty to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working.

(Wilsons & Clyde Coal Co Ltd v English [1938] AC 57)

Negligence – Identifying the breach of duty Dickins v O2 plc [2009] IRLR • Ms Dickins was promoted without promised support and training.

• 2 days off sick in her first audit Nov 2000.

• O2 agreed limit her work to prep management accounts.

• Early 2001 IBS, occasional absence, GP-referred counselling.

• March 2001 different role, some audit, nearer home.

• Promised training not delivered.

Negligence – Identifying the breach of duty • Did February 2002 audit alone.

• Long hours, “end of her tether”.

• March 2002 returned from holiday, still exhausted.

• Requested less stressful job.

• Wait 3 months – no vacancies.

• Difficulty getting up and regularly late for work.

Negligence – Identifying the breach of duty • 23 April 2002 – meeting with Keith Brown – 6 months off?

• Told him stressed out, lack of physical and mental energy.

• Not sure how long she could carry on without sick absence.

• KB would ask HR about procedure for sabbatical.

• Suggested she contact O2’s counselling service.

Negligence – Identifying the breach of duty • May 2002 appraisal – repeated her symptoms.

• Undergoing counselling but not sure how long carry on without sickness.

• 6 months’ sabbatical?

• Referral to OH suggested, but not actioned.

• Became seriously ill in June.

• Signed off and did not return to work.

Negligence – Counselling Services • important but not decisive • not a panacea See Hatton Guidelines Sutherland v Hatton; Somerset County Council v Barber; Sandwell Metropolitan Borough Council v Jones; Baker Refractories Ltd v Bishop [2002] EWCA Civ 76

Negligence – Injury "Many if not all employees are liable to suffer ... stress, anxiety, loss of confidence and low mood. To suffer such emotions from time to time, not least because of problems at work, is a normal part of human experience. It is only if they 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 can arise."

(Rorrison v West Lothian College 2000 SCLR 245).

Negligence – Psychiatric Illness By reference to the diagnostic criteria set out in either of the following: •

The World Health Organisation's International Classification of Diseases

•

The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorder

Negligence – Reasonable Foreseeability One of Hatton guidelines: an employer is usually entitled to assume that an employee can withstand the normal pressures of the job unless it knows of some particular problem or vulnerability in a particular employee.

Negligence – What puts you on notice?

• OH provider?

• Counselling service?

• Colleagues?

• First breakdown?

• Long hours?

• Bullying?

Negligence – Breach caused injury • Did employer’s breach of duty make a material contribution to injury?

• Eg failure to send Ms Dickins to OH and send her home • There may be background factors: • vulnerable personality • relationship difficulties • physical conditions (IBS)

Negligence – Foreseeability quiz Was it foreseeable that this injury would be the result of the employer’s breach of duty?

Conclusions • Listen • Get to root cause

• Make a plan that will help • Stick to it