FOR THE GREATER GOOD? SUMMARY DISMISSAL, PSYCHIATRIC INJURY AND REMOTENESS

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1 FOR THE GREATER GOOD? SUMMARY DISMISSAL, PSYCHIATRIC INJURY AND REMOTENESS While stress at work claims where a Claimant has been exposed to a lengthy and continuous period of stress recently benefited from judicial guidance (Daniel v Secretary of State for the Home Department [2014] EWHC 2578 (QB) and Bailey v Devon Partnership NHS Trust [2014] WL ), the law when dealing with claims for psychiatric injury arising from the a single act, despite the recent Court of Appeal Judgment in Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 remains fluid and turbulent. Historically, the Courts have taken a somewhat cautious approach to this area of law for a number of reasons, primarily in fear of creating flood-gate litigation. However, as our understanding of psychiatric injury continues to grow, alongside a fluctuating employment market and a marked dilution of the rights of employees to bring claims, the opportunity for the abuse of power has become a genuine cause for concern, specifically in the service industries of the UK s major cities. Johnson, Eastwood and Monk An employer s potential liability for psychiatric injury occasioned by a single event was dealt with by the House of Lords in the case of Johnson v Unisys Ltd [2001] UKHL 13. Here it was held that employees were not entitled to attempt to rely on statutory provisions pertaining to unfair dismissal in order to circumvent the statutory unfair dismissal regime, by bringing claims in common law alleging that that their dismissals breached the implied term of trust and confidence. These claims fell within what become known as the Johnson exclusion area, namely, they should be adjudicated on in the Employment Tribunals. Lord Hoffmann justified this on the basis that it would be contrary to parliamentary intention to develop a general common law right, whose substance would shadow the right not to be unfairly dismissed, but dispensing with the limitations that Parliament had imposed on the statutory right.

2 However the House of Lords in Eastwood and anor v Magnox Electric plc [2004] UKHL 35 held a that a distinction should be drawn between events leading up to the dismissal in respect of which a common law breach of contract claim may still be brought, and the dismissal itself for which the only remedy is an unfair dismissal claim. This principal was further refined by the Court of Appeal in the case of Monk v Cann Hall Primary School [2013] EWCA Civ 826 where a Claimant was allowed to bring a claim for damages for psychiatric injury resulting from the manner in which she was dismissed, having been publicly escorted from her workplace. The process of dismissal and the dismissal itself where held to be distinct, and if an employee could show that the facts relied upon occurred prior to any dismissal, a claim for psychiatric injury could be advanced. Yapp v Foreign and Commonwealth Office The Court of Appeal in the case of Yapp have again reassessed this area of law showing a clear acceptance that such claims are not only possible, but can succeed in the correct circumstances. The facts of Yapp are that in January 2007 Mr Yapp was appointed to the post of High Commissioner in Belize by the Foreign and Commonwealth Office (FCO). Ten months after commencing this post, the FCO received allegations in confidence that Mr Yapp had sexually harassed women at social events and had behaved in a manner likely to damage the reputation of the United Kingdom. It was also alleged that he had bullied and harassed staff members. In dealing with these allegations, the FCO withdrew Mr Yapp from his role on the basis of the first allegation (which was later found to be unsubstantiated) and he received a written warning in respect of the second allegation. Mr Yapp became depressed and remained unable to work for several years until his retirement in A claim was brought and Cranston J sitting in the High Court held that the decision to withdraw Mr Yapp amounted to a breach of contract, and a breach of the FCO s duty of care to Mr Yapp. It was also held that these breaches caused Mr Yapp to develop a depressive illness. The FCO appealed and argued that firstly that Cranston J had applied the wrong test to the question of whether Mr Yapp s withdrawal was fair, and secondly that even if Mr Yapp s illness was caused by the breach of contract or breach of duty of care, it was too remote to attract damages. The issue of whether not the FCO s conduct amounted to a specific breach of the common law duty of care owed to Mr Yapp was not explored, the respondent focusing on the issue of whether the decision was unfair and the issue of the remoteness. The Court of Appeal decided that while the FCO enjoyed a broad discretion whether or not to immediately withdraw a post-holder for operational reasons (precluding any effective and fair investigation) this was not inconsistent with the exercise of such discretion being unfair. It had been unnecessary for the FCO to act pre-emptively, without making any further inquiries or even putting the allegations to Mr Yapp. Cranston J had been entitled to find that if the FCO was going to take

3 such a drastic step, it should have found a way of dealing with the issue of confidentiality ( 60-67). However, with regard to foreseeability and remoteness, Mr Yapp s psychiatric injuries were deemed to be too remote, and the appeal succeeded on this point. The approach to remoteness The Judgment in Yapp provides a useful summary of the law on remoteness and sets out the test to be applied in such cases ( 119), which can be summarised as follows. Firstly, where considering the common law duty of care, and in particular whether it was reasonably foreseeable that an employer s acts or omissions would cause an employee psychiatric injury, such an injury would not usually be foreseeable unless there were indications of some problem or psychological vulnerability on the part of the employee (Barber v Somerset CC [2002] EWCA Civ 76, [2002] 2 All E.R. 1). Secondly, where a Court is dealing with claims for breach of the common law duty of care these such claims were governed by the law of tort, (Walker v Northumberland CC [1995] 1 All E.R. 737), and it was necessary to establish that psychiatric injury was reasonably foreseeable. If a Claimant could satisfy this point, then the issue of remoteness could not arise. Thirdly, these principals applied to cases of a one-off breach or act, as in Mr Yapp s case, and as established in Deadman v Bristol City Council [2007] EWCA Civ 822, [2007] I.R.L.R. 888). Fourthly, the Court of Appeal stressed that there was no hard and fast rule with all cases turning on their own facts. Fifthly, when dealing with a claim based on breach of the implied duty of mutual trust and confidence, or of any express contractual term, the action was rooted in contract, and accordingly the contractual test of remoteness would be applicable, The Court of Appeal accepted that an employer s conduct might be so devastating that it was foreseeable that a person of ordinary robustness might develop a depressive illness, but that it would be exceptional for an apparently robust employee, with no history of psychiatric fragility, to develop a depressive illness as a result of even a very serious setback at work. It was on this basis, and with some sympathy for Mr Yapp, that Underhill LJ found on the facts of the case there was no evidence of sufficient weight to render it foreseeable that the withdrawal of Mr Yapp from his post would have caused him to suffer a psychiatric injury. Factually, the FCO s actions had not been tantamount to dismissal, and Mr Yapp was told that if exonerated by the investigation, the FCO would try to find him another posting. The FCO was in essence attempting to follow due process, despite the unfairness of what had occurred. Therefore the psychiatric injury suffered by Mr Yapp was not reasonably foreseeable and could not give rise to a claim for a breach of the common law duty of care. Where does this leave us?

4 Usefully for Claimants, the Court of Appeal has provided in the Judgment that claims for psychiatric injury as a result of a single breach of duty of care can succeed. Of note Underhill LJ, at reiterated that: I have not found this issue easy, but in the end I have come to the conclusion that the Judge was wrong to find that it was reasonably foreseeable that the FCO's conduct in withdrawing the Claimant from his post without having had the opportunity to state his case might lead him to develop psychiatric illness. it will in my view be exceptional that an apparently robust employee, with no history of any psychiatric ill-health, will develop a depressive illness as a result even of a very serious setback at work But his decision was not one of primary fact, or indeed one of fact at all. Rather, it was a judgment This Court is as well placed to make that judgment as he was; and, having reached a different conclusion I am, I think, obliged to give effect to it. Underhill LJ was effectively stating that all such cases are purely fact-dependent and must be approached in a bespoke format, with the decision formed by the Judge relating to remoteness remaining a deciding factor. The inference to take from the Judgment is that assuming a Claimant can satisfy the issue of remoteness or foreseeability, then a Court is likely to be favourable to such claims. Practically this could involve supplying medical evidence asking for a period of leave before any action is taken, and expressly stating that any disciplinary process needs to be halted due health reasons. In the bulk of such cases, a period of paid leave could be granted in which an employer could consider any allegations, and deal with them fairly. The refusal to do so then would be likely to reflect either unreasonable behaviour, or an intention to run the risk of injury that has been brought to its attention. Conclusion Whilst Mr Yapp was not successful with regards to his claim for psychiatric injury it needs to be remembered his claim for unfair dismissal succeeded. Yapp sets out that claims of this nature can and will succeed where the employer was, or should have been, already aware of some relevant susceptibility or vulnerability on the part of the employee ( 156). This is actually quite an easy a step for a Claimant to begin to surmount when the requirements are considered. At trial, a potential issue may be whether or not (due to the speed with which such disciplinary proceedings moved) a Claimant may practically have lacked the time to clearly voice their concerns, or suggest alternatives. On this basis, early intervention which clearly communicates the risks faced

5 by Claimants prior to such a dismissal, and seeks to delay proceedings on a fair and balanced basis would be likely to be viewed as strong evidence that the employer not only knew of the risk, but went a step further and ignored a reasonable suggestion which would have preserved both parties positions. As the cases of Monks and Yapp both show, employers no matter their size will on occasion decide on a course of conduct which is not entirely reconcilable with the issue of fairness and their duty of care to an employee on the basis that it is necessary for the greater good of their interests. In this sense, their conduct is unlikely to change no matter what a Claimant says, but where a Claimant draws their concerns to their employee s attention, a claim for psychiatric injury would be likely to succeed. As Underhill LJ took pains to stress, all such claims turn on their own facts, and in this sense, there is a certain sense of justice to a well-informed Claimant seeking to use the bullish intentions of their employer against them, to generate a scenario where their claim must succeed. LIAM RYAN