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Court of Appeal overturns stress at work award for diplomat

Yapp v Foreign and Commonwealth Office
Court of Appeal
21/10/2014

Andrew Cousins reviews the latest in a recent line of decisions on stress at work.  The Court of Appeal overturned an award made at first instance to the High Commissioner of Belize for psychiatric injury and in doing so helpfully set out the caselaw governing remoteness of damage in contract and tort.

Background

The case concerned a claim brought by a former High Commissioner in Belize against the Foreign and Commonwealth Office (“FCO”). The claimant was withdrawn from his post by the defendant and suspended on “operational grounds”. The FCO commenced disciplinary proceedings against the claimant following complaints of inappropriate behaviour and bullying and the claimant received a final written warning. The suspension was lifted but the claimant had developed a depressive illness.

The claimant commenced proceedings against the FCO and claimed that the disciplinary proceedings had not been handled correctly, that the resulting stress had caused the depressive illness which constituted damage and led to an inability to work. As such the claimant brought a claim for damages for his losses.

Liability was tried before Cranston J who found that the withdrawal of the claimant from his post was a breach of contract and a breach of duty owed by the FCO at common law and that these breaches had caused the claimant’s depressive illness. The judge dismissed the claim in respect of the disciplinary proceedings.

The defendant appealed the findings and argued that the judge had applied the wrong test to the question of whether the claimant’s withdrawal was fair, and even if the illness was caused by the breach then it was too remote to attract an award of damages. 

Findings

Patten LJ, Davis LJ and Underhill LJ allowing the FCO’s appeal in part, held:

  • Whilst the FCO’s actions had been unfair to an extent and that there had been a breach of contract, the FCO was attempting to follow due process.

  • It was not reasonably foreseeable that the FCO’s conduct in withdrawing the claimant from his post might lead to a psychiatric condition and the claimant could not therefore recover losses for breach of the common law duty of care.

  • In respect of the claim in contract, the losses claimed in this regard were too remote as well. 

In making its findings the court considered that:

  1. It should be exceptional that an apparently robust employee with no history of mental ill health would develop a psychiatric condition as a result of a setback at work; 
  2. There was nothing in the circumstances of the present case that was sufficiently egregious as to render it foreseeable that the withdrawal from his post would have caused the claimant psychiatric harm. 

Comment

The court’s judgment examines the existing case law on the issue of psychiatric damage and was largely addressing the issue of foreseeability and remoteness of damage. The court examined the previous authorities of examining claims of Hatton v Sutherland (2002) CA and Barber v Somerset CC (2004) HL and held that they were still good law and that they give guidance on the principles of psychiatric damage.

In respect of foreseeability, the court has to examine whether there are any indications that the employer was or should have been aware of a psychological vulnerability of the employee. If the injury was foreseeable then no issue of remoteness arose to be considered.

An employer’s conduct may be so devastating that it might cause a psychiatric condition, and that it was foreseeable that this might happen, but it would be an exceptional case where an apparently robust employee would develop a psychiatric condition as a result of the a setback at work. Such a setback does not give evidence of foreseeability to psychiatric harm though. 

The court was keen to state though that whilst guidelines have been given by the courts in Hatton and in Barber, each case must turn on its own facts. Whilst acknowledging that the test is a very factual one, the court considered that the FCO could not be expected to have foreseen the damage that the claimant claimed for as there was no indication that he had a susceptibility to psychiatric harm. This absence of any propensity to psychiatric harm was fatal to the claimant’s case against the FCO.

The judgment here is helpful for defendants and employers as it gives further support to arguments about remoteness and foreseeability of losses. In the instant case the FCO had no prior awareness or reason to be aware of any particular susceptibility of the claimant to stress or psychiatric vulnerability and were entitled to assume that their employee was a man of “reasonable fortitude”.

It is important to note though that whilst the psychiatric experts in the case stated that the claimant had no particular propensity to psychiatric vulnerability, the issue of such vulnerability is a matter for the court to determine not the experts.

The history of each employee is therefore going to be a key issue to examine in any claim for psychiatric harm and employers should be aware of the need to review such records and information if faced with a claim of this nature.

The court’s decision here is a timely reminder that foreseeability is still a very important part of a claimant’s case, without evidence to support foreseeability of damage, the claimant ought not to succeed though and an employer has a reasonable argument that the claim should not succeed on the grounds of lack of foreseeability of damage.

Contact

For further information please contact Andrew Cousins Solicitor Advocate, Insurance on 0161 603 5093.

Related article:

Stress and harassment update

By Andrew Cousins

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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