WORK-PLACE STRESS AND HARASSMENT

WORK-PLACE STRESS AND HARASSMENT OCCUPATIONAL DISEASE GUIDE 7 OCCUPATIONAL DISEASE

Work-place stress and harassment Occupational disease series Mini Guide 7 Contents Introduction 1. Insurance coverage 2. CRU 3. Duties and Breach 4. Investigations and Disclosure 5. Causation 6. Medical expert evidence 7. Quantum and the initial reserve 8. Costs 9. Making a decision Appendix 1: the Disease and Illness Pre-Action Protocol Appendix 2: the Portal Appendix 3: Table of cases 1

Introduction Stress is a term which has become fairly common place, but is often misused. It is not a medical diagnosis or condition but in a medical context it refers a state of excessive mental or emotional strain. In fact, stress is a normal feature of everyday life; it is only when stress is excessive that it can lead to a number of psychiatric and physical conditions. The Health and Safety Executive ( HSE ) has defined work-related stress as the process that arises where work demands of various types and combinations exceed the person s capacity and capability to cope. The HSE advises that stress should be treated like any other occupational-relating mental ill health, which given the impact stress has on health and well-being, makes good sense, especially as stress is one of the largest cause of losses both to individuals and the businesses they work for. In 2014/15 the HSE identified that 9.9 million working days per year are lost due to stress. Further work-place stress accounted for 35% of all workrelated illness. The following have been identified by the HSE as the main causes of work stress: Workload Role uncertainty Lack of control over work practices Lack of support Changes to work Bullying/harassment/discrimination Violence Dismissal and/or the manner of dismissal Stress on its own is not actionable. To succeed at common law a claimant must demonstrate that they have suffered a clinically significant psychiatric injury. Under the Protection from Harassment Act 1997 (Protection from Harassment Act) a claim can only succeed if anxiety and distress was suffered and in a discrimination claim in the Employment Tribunal (ET) injury to feelings must be established. 2

1 Insurance coverage 1.1 Under the guidance from the Industrial Disease Claims Working Party (IDCWP), stress claims are treated as short tail as there is generally a close temporal association between the work activity and onset of symptoms. 1.2 Manifestation of symptoms is the trigger when the condition either was diagnosed or was capable of being diagnosed. In accordance with the IDCWP guidelines, the insurer on risk at this time is the one which should handle the claim. 1.3 You will need to establish whether breach of duty is alleged to have continued after the condition developed, and if so, identify and inform any subsequent EL insurers on risk until breach of duty ceases. 1.4 Apportionment involving a period prior to manifestation should be avoided. However, where breach of duty continues after manifestation, then ongoing apportionment may be appropriate. 1.5 The handling insurer should give early notice of the claim to other relevant insurers and seek agreement on contribution. Claims should be apportioned on a time-on-risk basis. There is no weighting of apportionment to reflect dose of exposure. 1.6 Given that a Protection from Harassment Act (1997) claim requires at least two occurrences of harassing conduct, the coordinating insurer is likely to be the one on risk after the second occurrence and on manifestation of anxiety. 1.7 In respect of claims brought in the ET or under the Protection from Harassment Act (1997), damages may be awarded for injury to feelings or upset and distress. However, an Employer s Liability insurance policy will often not respond if the claimant has suffered less than a recognised psychiatric injury (and subject to policy wording). Rights should be reserved pending medical evidence. 1.8 It is contrary to public policy for insurance to cover intentional acts by the policyholder (or if a company, the controlling mind thereof). If there is intentional bullying or harassment by someone in a senior position you should consider whether rights need to be reserved. Intentional acts by employees will be deemed accidental. 1.9 If the claimant has previously pursued an ET claim, consider late notification and, subject to the terms of the policy, reserve rights to recover monies paid out from the insured. Employment Tribunal Claims 1.10 In July 2017 the Supreme Court rules in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 that the imposition of issue fees in the Employment Tribunal (ET) were unlawful. As a result it is expected that more employment claims will be brought. 1.11 Increasingly claimants in stress claims bring ET claims as well as personal injury claims. It is important to note that findings of fact in one set of proceedings may be used to determine facts in a second set of proceedings. A finding of bullying or harassment by an ET will often be persuasive to a court when considering a claim for personal injury. Robust handling of the ET claim will therefore be important. 3

1.12 Consideration should be given as to whether ET claims and personal injury claims should be dealt with by the same firm. This is likely to have the effect of reducing the costs of investigations, by avoiding duplication of work and it provides a joined up approach to the two sets of proceedings. At the very least you must work closely with the insurer s ET lawyers and be involved in the assessment of the evidence and approve any compromise agreement. 1.13 It is worth bearing in mind that there are often opportunities to dispose of claims, or potential claims, where ET claims are compromised, in particular where a compromise agreement is entered in to, for example terminating an employee s employment. If claimants will agree, there is an opportunity to secure an all claims discharge at this stage, which would prevent a separate personal injury claim. Frequently claimants will not agree to this but in cases where liability risks exist, and this is known at an early stage, it is sometimes possible for insurers to make a contribution to the ET settlement sum or employment termination payment (this may need to be done on an ex gratia basis see later) to top-up the payment and secure agreement to an all claims discharge. 1.14 It is important to check whether a defendant has Employment Practices Liability insurance or legal expenses insurance as these may cover the ET claim. 1.15 If a defendant doesn t have insurance to cover an ET it may be worth asking the insured to pay any damages award but handling the ET claim to avoid an ET prejudicing any personal injury proceedings. 4

2 Duties and Breach 2.1 Claims for personal injury arising from stress are generally brought in the County Court or High Court in the following ways: In tort; usually the tort of negligence (however there is also the possibility to claim for the tort of trespass to the person, often referred to as assault); For breach of contract; usually a contract of employment; For breaches of statutory duty: for example under the Working Time Regulations (1998) or under the Management of Health and Safety at Work Regulations 1999. However the ability to bring claims for breach of statutory duty has been curtailed by the Enterprise and Regulatory Reform Act 2013 and further details on this are set out below. Under the Protection from Harassment Act: this will only apply where there is vicarious liability on the part of an employer for the actions of their employee. 2.2 Claimants often rely on a combination of all of the above causes of action and it is important to understand the distinct duties each creates on the employer. Tort: negligence 2.3 The ordinary common law principles of negligence apply to stress claims. There must be a duty which is breached, and that breach of duty must have caused or materially contributed to a reasonably foreseeable injury. There are no special control mechanisms for stress at work. 2.4 The threshold question is whether the injury (which will most likely be psychiatric harm) to the particular employee was reasonably foreseeable. Foreseeability as a question has to be answered by asking what the employer knew or ought reasonably to have known. It is impending psychiatric harm, not merely stress or upset, which must have been foreseeable. 2.5 If foreseeability is established the court will consider whether reasonable steps were taken to prevent injury occurring. 2.6 Walker v Northumberland County Council [1995] 1 All E.R. 737 is regarded as the classic example of a situation in which an employee was awarded damages for psychiatric injury suffered as a result of workrelated stress. The court held that an employer's duty to take reasonable care to provide his employee with a safe system of work and take reasonable steps to prevent him from risks which are reasonably foreseeable extended to risks of psychiatric illness. In Walker the court held that an employer s duty does not extend to negligible risks, only to materially substantial risks. The evidence in that case established that prior to the claimant s first breakdown it was reasonably foreseeable that the Claimant might sustain a mental breakdown of some sort in consequence of his work, it was not reasonably foreseeable to the defendant that the workload to which the claimant was exposed gave rise to a material risk of mental illness, in the sense that the risk to which the claimant was exposed was higher than that which would ordinarily affect a social services middle manager in his position. However, when the claimant returned to work after his first illness it was then reasonably foreseeable that if he was again exposed to the same workload as he had been handling at the time of his first breakdown there was a material risk that he would again succumb to mental illness. 2.7 The Court of Appeal decision of Sutherland v. Hatton [2004] 2 All E.R. 385 set down what is referred to as the Hatton Guidelines for establishing whether a defendant was negligent. 5

Hatton Guidelines 2.8 The Court of Appeal in Sutherland v. Hatton [2004] set out the following 16 principles which still provide guidance in workplace psychiatric injury claims: i. The ordinary principles of EL and common law negligence apply (namely breach of duty which has caused or materially contributed to a reasonably foreseeable injury). There are no special control mechanisms for stress at work. ii. iii. iv. The threshold question is whether the psychiatric harm to the particular employee is reasonably foreseeable. Foreseeability depends on what the employer knew or ought reasonably to have known. Employers are entitled to assume an employee can withstand normal job pressures unless aware of some vulnerability. No employment or job is inherently more stressful than another and no occupations should be regarded as intrinsically dangerous to mental health. v. Factors relevant to the threshold question of foreseeability include: the nature of the job and type of work undertaken (perhaps intellectually or emotionally demanding for the employee); whether the workload is high or excessive demands are placed on the employee; signs of others doing the same/similar work suffering from stress; whether the individual employee demonstrated signs of stress (illness/absence/discipline problems); whether the individual has a known psychiatric vulnerability previous illness/absence; and has the individual made complaints about work/stress/illness? vi. vii. viii. ix. The employer is generally entitled to take what it is told by an employee at face value unless it has good reason to think to the contrary. The indications of impending harm to health ought to be plain enough for any reasonable employer to realise it should act. The employer is only required to take reasonable steps. The size and scope of the employer s operation, its resources and other demands placed upon it are factors in deciding what is reasonable. x. An employer is only expected to take steps that are likely to do some good. xi. xii. xiii. xiv. An employer offering confidential advice services or referrals to counselling and treatment services is unlikely to be found in breach of duty. However, the availability of such services alone does not provide a complete defence. See Intel v Daw [2007] section 3.4. If the only solution is to dismiss or demote the employee, the employer is not in breach of duty for allowing a willing employee to continue in the job. The court will need to identify the steps the employer could and should have taken. The claimant must show the employer s breach has caused or materially contributed to the harm. 6

xv. xvi. Where the harm has more than one cause, the principle of apportionment applies unless the harm was truly indivisible. However, in Dickins v O2 Plc [2008], Smith LJ said, obiter, that psychiatric injury was not a divisible disease to which the principles of apportionment applied. The assessment of damages will take into account any pre-existing disorder and the chance the claimant would have suffered a psychiatric illness in any event. The second in the list of principles above, the threshold question, is often key to liability. The claimant must show that it was reasonably foreseeable that he/she was at risk of suffering a psychiatric injury and the employer failed to take reasonable steps to prevent such harm. Guidance since Hatton 2.9 The courts continue to apply the Hatton guidance (see for example MacLennan v Hartford Europe Ltd [2012] and King v Medical Services International Ltd [2012]. However, it should be noted that in Barber v Somerset County Council [2004], the House of Lords indicated that the Hatton principles provide useful guidance but do not possess anything like statutory force. Each case turns on its own facts. 2.10 In Hartman v South Essex Mental Health & Community Care NHS Trust [2005] EWCA Civ 06 6 separate stress claims were heard by the Court of Appeal. The appeals were stayed pending the House of Lord s decision in Barber v Somerset County Council. In the judgment the Court provided an overview and observations on the current case law. It re-affirmed the primacy of the decision in Hatton v Sutherland and the sixteen principles set out by Hale LJ. It was noted that the House of Lords in Barber had specifically commented that these propositions were correctly expressed and ought to be applied. None of the cases since Hatton had detracted from the guidance. However, care should be taken in the application of the propositions to particular cases. 2.11 Providing a confidential advice or counselling service for employees has been held to be insufficient, without more, to provide a defence for employers. Availability of such a service is useful evidence to support the defence, but it does not discharge the duty of care owed to the individual employee. See Intel v Daw [2007] and Dickins v O2 Plc [2008]. 2.12 There is case law on the effects of stress on part time workers: see Garrod v North Devon NHS Primary Care Trust [2006] EWHC 850 (QB) in the index of cases. Apportionment 2.13 The court in Hatton allowed for apportionment of stress claims where the psychiatric injury has more than one cause. Later in Dickins v O2 Plc [2008] the Court of Appeal raised questions over the status of the Hatton guidance. While apportionment did not form part of the appeal, the Court considered whether apportionment was appropriate. Lady Justice Smith considered the injury to be indivisible and doubted whether apportionment was applicable to a psychiatric injury with multiple causes. Her obiter view was that, where the defendant s breach has made a material contribution to the injury (i.e., it was more than minimal) but it is not scientifically possible to exactly quantify that contribution, the injury is indivisible and damages should not be apportioned. A key factor was the fact that the experts in the case were not able to quantify the separate contributions to the condition made by the occupational and non-occupational causes. 2.14 Both the Hatton guidance and Lady Justice Smith s views in Dickins are obiter and therefore not binding. Defendants should continue to argue that apportionment of general damages ought to take place to take account of non-negligent causes. Expert evidence should be obtained in support, setting out the percentage contributions made by each causative factor if possible, in order to side-step the material contribution risk and ensure that damages can be apportioned. 7

2.15 The Court of Appeal in Dickins did consider that there may be a reduction in some heads of damage for future risks of non-tortious loss. 2.16 In Thaine v London School of Economics [2010], the claimant claimed unfair dismissal, sex and disability discrimination. The Employment Appeal Tribunal considered Dickins and found that where an employee s psychiatric ill health has been caused by a combination of factors, some amounting to unlawful discrimination for which the employer is liable, but others not the fault of the employer, it was open to an employment tribunal to discount the employee s damages by such percentage as reflects apportionment of responsibility. This is not binding on the county court or high court but can be used as persuasive argument. Claims in contract 2.17 Contracts of employment are subject to an implied term that the employer will take reasonable care of the employee s health and safety. In Deadman v Bristol City Council [2007], the Court of Appeal held that, notwithstanding the defendant s breach of contract, it was not liable for the claimant s psychiatric injury because the injury was too remote from the breach. The question was again one of foreseeability. It was not foreseeable that the breach of contract would result in the risk of psychiatric harm. 2.18 While a claimant can found a claim on breach of contract, in practice the duty in contract runs concurrently with the duty in negligence and is unlikely to give the claimant a better prospect of success. However as demonstrated in Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, in contract claims, foreseeability arises as a control mechanism in the context of remoteness of damage (i.e. whether losses are a foreseeable consequence of a breach), rather than as a requirement in establishing the breach in the first place as is the case in tort. In Yapp the decision to withdraw the claimant from his post before taking steps to assess the prima facie plausibility of serious allegations of misconduct against the claimant was a breach of the employment contract (being too precipitous a reaction) but the psychiatric injury was too remote as it was not a foreseeable consequence of the breach. Statutory provisions 2.19 Since October 2013, following the implementation of the Enterprise and Regulatory Reform Act 2013 ( ERRA ), no civil claim can be founded on a breach of health and safety regulations. Therefore claimants cannot seek compensation for breach of the Management of Health and Safety at Work Regulations 1999 for failure to risk assess. Claimants can however rely on breaches of statutory duties as evidence of negligence. 2.20 Until the U.K. triggers Article 50 of the Lisbon Treaty and leaves the European Union (on the assumption that Article 50 is engaged) the parent EU directives to which the UK gave effect in enacting the relevant statutory regulations now effected by ERRA remain subject to the doctrine of direct effect. This means that far as the directives apply to emanations of the state the directives can be enforced in the U.K. This potentially will allow public sector claimants to rely on the directives and thus subvert the effects of ERRA. As can be seen below, in the context of stress and bullying cases the statutory regulations may in practice add insufficient advantage to a claim in common law or contract for claims to invest in running this argument, but you should be aware of it. Working Time Regulations 1998 2.21 In claims for stress the amount of time worked is likely to be a relevant factor. As part of many stress claims, breaches of the Working Time Regulations 1998 are pleaded. 8

2.22 Under these regulations, an employer must not require an employee to work more than 48 hours per week without their written consent. 2.23 The regulations are often pleaded in work-overload claims. For example, in Hone v Six Continents Retail Ltd [2005], the claimant alleged that he suffered stress leading to psychiatric injury as a result of being required to work excessive hours. The claimant relied on the 1998 Regulations as being relevant to foreseeability. Hone suggests that whilst a breach of the regulations is one factor to be considered, it does not, on its own, satisfy the test for foreseeability. 2.24 In Pakenham-Walsh v Connell Residential (Private Unlimited Company) [2006], reliance was placed on the regulations as setting a standard by which an employer s conduct is to be judged and, like Hone, not as a separate cause of action. Hone and Pakenham-Walsh illustrate: the significance of foreseeability in establishing liability; and that liability does not flow from breach of the regulations alone. 2.25 In Paterson v Surrey Police Authority [2008], the High Court followed the Hatton principles and emphasised the importance of foreseeability. Breach of the regulations was of limited relevance to the question of foreseeability. The central questions remain: what did the employer know? What should the employer have done? Management of Health and Safety at Work Regulations 1999 (MHSWR) and civil liability 2.26 The Regulations require employers to undertake risk assessments and where a risk is identified, take steps to eliminate or reduce the risk, carry out health surveillance and warn employees. There is also an obligation on employees to inform employers about any risks to health and safety. 2.27 Risk assessments for stress can take many forms. Due to the subjective nature of stress, they should be personal (rather than generic) and can include appraisals, one to one meetings, return to work meetings and occupational health reports. Even informal discussions with a line manager could constitute a risk assessment, depending on if an assessment has taken place. HSE guidance 2.28 The HSE has provided guidance on stress which is called Managing the Causes of Work-related Stress: A step-by-step approach using the Management Standards (HSG 218), which states that the HSE expects organisations to carry out a suitable and sufficient risk assessment for stress, and to take action to tackle any problems identified by that risk assessment. 2.29 The HSE has designed the management standards approach to help employers manage the causes of work-related stress. It is based on the Five steps to risk assessment model. The standards refer to six areas of work that can lead to stress if not properly managed. 2.30 Guidance is also found in How to Tackle Work-related Stress: A guide for employers on making the Management Standards work (INDG 430) and at: http://www.hse.gov.uk/pubns/indg430.pdf 2.31 The standards set out objective measures by which employers can assess their performance in tackling work-related stress and recommend that a stress policy is introduced by employers to combat the problem and again central to this is a requirement to risk assess. 9

2.32 Although the HSE guidance recommended a questionnaire assessment, there is no rule about how a risk assessment should be carried out. Employee appraisals and/or regular one-to-one meetings may be sufficient if they deal with the issue of stress. 2.33 Claimants often rely on the guidance to prove negligence. However, it is important to note that no court has adopted the guidance and it is not binding. Any suggestion that an employer is negligent for failing to follow the standards should be firmly rejected. 2.34 Case law has determined that the duty to risk assess only arises when an employer is put on notice of some issue or vulnerability in the claimant (see Mullen v Accenture Services Ltd [2010] EWHC 2336 (QB)). There is no duty to perform stress risk assessments on all employees as standard. Bullying 2.35 As pure over-work and other systemic negligence cases can be challenging for claimants in terms of establishing the requisite elements of foreseeability, increasingly claimants are seeking to identify bullying behaviour as core elements in cases in an attempt to clear the foreseeability hurdle more easily. Recognising the growth in this phenomenon, the Advisory, Conciliation and Arbitration Service ( ACAS ) published a Policy Discussion paper in November 2015: http://www.acas.org.uk/media/pdf/e/b/seekingbetter-solutions-tackling-bullying-and-ill-treatment-in-britains-workplaces.pdf. 2.36 Many bullying cases arise from inter-personal difficulties between staff at work and the essence of the matter frequently involves difference of subjective perception of the conduct in question. Often there is limited dispute as to whether the events in question actually occurred; rather the issue arises from the claimant s subjective perception of events and of the behaviours of colleagues, and the analysis can be highly nuanced. However, even where the claimant s subjective perception of events is likely on the evidence to be shown to be a departure from objective reality, be aware that foreseeability may still arise where the employer is aware of the claimant s perception and the effect in fact of the conduct or situation and fails to act. 2.37 Bullying at work can potentially lead to three main categories of claim: A common law stress claim (see above) for psychiatric injury. A harassment claim under the Protection from Harassment Act. A claim in the ET under discrimination legislation, or for unfair dismissal (see below). 2.38 The test of whether conduct amounts to bullying or victimisation is set out in Barlow v Borough of Broxbourne [2003] EWHC 50 (QB). The claimant alleged he was deliberately victimised and bullied by senior members of staff of the defendant, which caused him to suffer emotional distress and psychological injury. The claimant alleged that the defendant was vicariously liable for the acts of the members of staff and accordingly was in breach of the duties owed to him at common law. The Claimant alleged that he worked in a culture of abuse. The Judge found that senior members of staff were given occasionally to shout and swear at other members of staff, sometimes in the presence of more junior employees. In particular, the Judge found that his supervisors on at least 3 occasions used foul language to the Claimant, but that the incidents were not numerous and had to be seen in the context of what were described as a catalogue of errors for which the Claimant was responsible. Other allegations that the Claimant made were rejected by the Trial Judge as amounting to victimisation or bullying. On the issue of bullying the Trial Judge found himself bound to answer the following four questions: i. Whether the conduct complained of amounted to bullying or harassment in the ordinary use of those words addressing the cumulative effect of the conduct rather than the individual incidents; 10

ii. iii. iv. Whether those involved in the victimisation of bullying knew or ought to have known that their conduct would cause the claimant harm; Whether they could, by the exercise of reasonable care, have taken steps which would have avoided that harm; Whether their actions were so connected with their employment as to render the Defendant vicariously responsible for them whilst the latter two were made out, the first two were not. 2.39 If a claim is brought for bullying and harassment in negligence; the same test of foreseeability applies. However, once an employer has constructive or actual knowledge that bullying is taking place, then the risk of psychiatric injury is likely to be foreseeable. Following which the employer must take reasonable steps to prevent injury occurring. 2.40 It must be born in mind that employees must not expect to always have completely amicable relationships with their colleagues and reasonable exercise of management over employees is unlikely to give rise to liability. Harassment statutory claims under the Protection from Harassment Act (1997) 2.41 Where the claim involves bullying or harassment, claimants will usually plead reliance on the Protection from Harassment Act. The Act gives rise to civil liability where there is: a course of conduct ; which the perpetrator knows or ought to know amounts to; harassment of another; and the claimant has suffered anxiety and distress as a result. 2.42 If the harassment is pursued in the course of employment the employer will be vicariously liable. This means that a claim can be brought against the employer and/or the perpetrator. An employer can also (should they be minded to do so) seek a contribution or indemnity from the perpetrator. Course of conduct 2.43 There will need to be at least two incidents of harassment which must be connected in type and context so that they can properly be characterised as a course of conduct. 2.44 The fewer the incidents and the further apart in time, the less likely they are to amount to a course of conduct. It should not be assumed that two incidents necessarily give rise to a course of conduct. Two random acts, by two different people, at different times, with no connection between them, cannot amount to a course of conduct. Harassment of another 2.45 The test for what the harasser knew or ought to have known is objective. Would a reasonable man think the behaviour would amount to harassment? 2.46 Harassment is not defined in the Protection from Harassment Act, however, case law does provide guidance. The main authority setting out the requirements is Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233. The conduct must be: 11

Targeted, usually at the claimant, although the case of Levi v Bates, Leeds United, Football Club Limited and Yorkshire Radio Limited [2015] EWCA Civ 206 suggests that as long as behaviour is targeted at someone, others who are affected may have a claim; Calculated to cause alarm or distress - it is not enough that the conduct causes distress; it must be calculated to do so; Oppressive and unacceptable. Irritating, annoying or unattractive behaviour is not sufficient; Serious enough to sustain criminal liability (See Mitton v Benefield [2011]); Need not be physical speech is sufficient. Context is very important. The nature of the relationship between the parties and the kind of workplace in which the alleged harassment took place are relevant behaviour which might not be harassment on the factory floor or in an army barracks might be harassment in a hospital ward. Vicarious Liability 2.47 If an employee can show they have been the subject to harassment under the Protection from Harassment Act by colleagues or supervisors, employers are often found to be vicariously liable. However, the factual circumstances need to be considered, in particular, whether there was a sufficiently close connection between the role the perpetrator was employed to do and the acts of harassment. If the harasser was acting entirely for his own purposes, then the employer may not be vicariously liable. 2.48 In Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34 the claimant brought a claim against the Trust for harassment nearly 4 years after being dismissed from his employment. During his employment the claimant alleged he had been harassed. The Trust conducted an investigation and upheld the allegation of harassment. The claim brought was based exclusively on the Trust's vicarious liability for an employee s alleged breach of the statutory prohibition of harassment. The House of Lords held that an employer can be vicariously liable under the Act, and while there is no definition of harassment under the Act, Lord Nicholls leading judgment made clear that conduct which is simply unattractive or unreasonable or regrettable is not sufficient to satisfy the Act. The behaviour must be oppressive and unacceptable and the gravity of the misconduct must be of an order which would sustain criminal liability. Baroness Hale said that harassment is genuinely offensive and unacceptable behaviour. The Act should therefore only apply to cases of the serious misconduct. If courts properly interpret the Act then claimants will be presented with significant hurdles to overcome and claims arising from trivial workplace grievances should not succeed. Limitation 2.49 In cases brought under the 1997 Act, save in Scotland, the limitation period is 6 years. 2.50 While not advanced by the claimant s legal advisors in either the Court of Appeal or House of Lords, during the course of submissions Lord Hope considered the limitation provisions of the Act in Scotland, which are different to those in England and Wales. Section 10 of the Scottish legislation amends the Prescription and Limitation (Scotland) Act 1973 such that the limitation period is 3 years from (i) the date harassment ceases or (ii) a date when the victim ought reasonably know the identity of the alleged perpetrator of harassment or the employer or principal of that person. It was argued on behalf of the Trust that reference to employer or principal in the Scottish formulation was only to include situations where an employer is secondarily liable in respect of the harassment - for example where they condone or encourage the conduct. 12

Traps for the Unwary! 2.51 A Protection from Harassment Act claim has five main differences from a negligence claim: Breach of the Protection from Harassment Act may lead to civil and criminal liability, thus a different quality of conduct is required compared to a common law bullying claim; The court may award damages for anxiety and distress caused by the harassment. The claimant is not required to show he has suffered a psychiatric injury, thus it may not be clear until the outcome of trial whether the insurer s policy is triggered-see section 1 above; The claimant does not need to prove that an injury was foreseeable. This is a major advantage for claimants and the reason why claims for bullying and protection from Harassment claims are made together; Taking all reasonable steps to prevent the claimant from suffering harassment provides no defence;. The claimant has six years to bring proceedings. The court has no discretion to disapply the limitation period. Tort: Trespass to the person assault 2.52 Occasionally stress claims will include an allegation of physical contact. In those cases, a claim may be brought in trespass. 2.53 Trespass to the person may be committed by assault, battery or false imprisonment. All forms of trespass are actionable per se, that is, without proof of physical harm resulting from the trespass, see Watkins v Secretary of State for the Home Department [2006] 2 All ER 353. A deliberate or malicious tort may attract an award of punitive (or 'exemplary') damages. Assault and battery 2.54 The term assault does not mean physical harm, the physical application of unlawful force is a battery. An assault is the apprehension that unlawful force will be applied. The two taken together are referred to in general parlance as common assault. 2.55 The act complained of (i.e. assault or battery) must be voluntary and can be intentional or reckless, but negligence is insufficient. The onus of proof lies on the claimant. The act must be done without the consent of the person who is the subject of the act. Wilful Infringement 2.56 There is a further tort for trespass to the person which could found a stress claim: in Wilkinson v Downton [1897] 2 QB 57 it was held that a wilful act or statement of the defendant, calculated to cause physical or psychological harm to the claimant and which in fact causes harm to him, is the tort of wilful infringement. 2.57 The tort of wilful infringement of the right to personal safety has three elements: a conduct element, a mental element and a consequence element. The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse. The necessary mental element is intention to cause physical harm or severe mental or emotional distress. Recklessness is not sufficient. The consequence required for liability is physical harm or recognised psychiatric illness. In the absence of physical harm, the consequence must be that the claimant has suffered a recognised psychiatric condition, and not merely anxiety or distress. 2.58 Thus a person is liable if he makes a false statement to the claimant who, as a result, suffers nervous shock and consequently physical illness. A person who indirectly inflicts intentional harm on another does not 13

commit a trespass, but there seems no reason why this tort should not apply to any type of physical harm, whether caused by an act or a statement, provided that the harm, although an indirect consequence, is calculated to result from the defendant's conduct. 2.59 Although this is not a cause of action commonly used in stress claims, it remains a valid cause of action and has the potential to found a claim that it could be difficult to respond to due to the different elements to a usual claim for negligence. Vicarious liability 2.60 In cases involving the tort of causing harm, vicarious liability may be harder to prove in the case of a deliberate tort, largely because of the difficulty of establishing that a malicious or dishonest act, committed without the knowledge or authority of the employer, is performed in the course of the employer's employment. However, as under Protection from Harassment Act above, where there is a sufficiently close connection between the role the person was employed to perform and the act itself, vicarious liability will be established. 2.61 There are a number of cases where an employer has been held to be vicariously liable for an act of intentional violence by an employee. In Mattis v Pollock [2003] 1 WLR 2158 a nightclub bouncer, employer to enforce security in a tough manner was acting the course of employment when he attacked a customer. In Mohamud v Wm Morrison Supermarkets plc [2016] 2 W.L.R. 821 a petrol station employee assaulted a customer after he made a request. The employer was found to be vicariously liable because the employee s job was to attend to customers and respond to their enquiries. Overlap with employment issues Employment Tribunal (ET) claims 2.62 Depending on the nature of the allegations, workplace stress claims may also be brought in the ET under discrimination legislation (found in the Equality Act 2010) which renders bullying or harassment unlawful, on grounds of race, gender, disability, religion, sexual orientation, age, marital or civil partnership status, transgender status or maternity. Where discrimination arises in the workplace, the ET has exclusive jurisdiction-thus the claim must be brought in the ET and cannot be brought in the County Court. Where there is a psychiatric injury arising from an act of discrimination, the ET has jurisdiction to hear the personal injury claim. Thus: i. An insurer may find its EL policy triggered in the ET; and ii. You may have an abuse of process defence in later civil court proceedings where personal injury damages were not sought in earlier ET proceedings. 2.63 Discrimination claims often provide claimants with a slightly easier route to compensation than the civil courts, due to the different test and the lower threshold to compensation. There is no requirement to prove foreseeability but (unlike in statutory harassment claims under the 1997 Act) there is a best endeavours defence to a vicarious liability claim if the employer can show that it took all reasonable steps to prevent an act of discrimination by a fellow employee s109(4) Equality Act 2010. 2.64 Where discrimination arises from employment, the ET has exclusive jurisdiction the claim cannot be brought in the County of High Court s120(1) Equality Act 2010 2.65 There is, in discrimination claims, no need for a course of conduct one act of discrimination is enough. 14

2.66 Bear in mind that the losses must be caused by the discrimination, rather than flowing from other breaches of employment legislation. 2.67 In discrimination claims an ET can award damages for injury to feelings and proof of psychiatric injury is not required. In certain circumstances, aggravated damages can be awarded 2.68 Unlike in statutory unfair dismissal claims, there is no statutory cap on awards made by the ET for discrimination. 2.69 The limitation period in discrimination cases in the ET is three months. 2.70 Costs are rarely recoverable against the opposing party in ET claims. 2.71 If a claimant has previously brought a claim in the ET or has concluded his or her employment under a compromise agreement, you will need to consider whether the claimant should be prevented from bringing a further claim in the civil courts as a matter of estoppel. Check how any ET claim was resolved/ compromised to determine if issue estoppel applies. A claimant cannot rely on an issue which is a necessary ingredient to his claim if he has already relied on the same issue in an earlier claim between the same parties which has been litigated and decided. Jones v Caerphilly County Borough Council [2006] suggests that a claimant will be estopped from re-opening in a common law claim issues concerning the manner of dismissal already decided by the ET. 2.72 If the injury arises from the manner of dismissal from work this can only be dealt with in the ET (Johnson v Unisys Ltd [2001], Eastwood v Magnox Electric [2004], GAB Robins (UK) Ltd v Triggs [2008] and Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011]). In that case the ET has exclusive jurisdiction and remedies are restricted to those available under the statutory regime relating to dismissal set out in the Employment Rights Act 1996. This is limited to capped financial losses and does not allow a claim for personal injury. This is the case whether the claimant seeks to pursue an injury case in tort or in contract. However, if the claim arises from events before the dismissal, often referred to as antecedent breach the employee has a right of action in the civil courts independent of any dismissal. Such individuals may pursue claims either in the ET say, for unfair dismissal or discrimination or as a civil claim for personal injury. Claims which in fact relate to or arise from the manner of dismissal are often said to fall within the Johnson exclusion zone, so named after the Johnson v. Unisys case. There is often scope for significant dispute as to where the Johnson exclusion zone begins in any one case, particularly in the case of, for example, a protracted disciplinary process ending in dismissal. Note that Johnson exclusion zone arguments can still arise in situations in which the claimant has resigned, claiming constructive dismissal. 2.73 In Monk v Cann Hall Primary School [2013] EWCA Civ 826 An employee who was escorted from school premises was given leave to amend her claim for psychiatric injury as it was arguably a separate event from her dismissal (she had been served with notice of redundancy, but was still working in the notice period) and therefore outside the exclusion area delineated by Johnson v Unisys Ltd [2001]. 2.74 If the claim is not estopped by earlier ET proceedings, consider whether there are any overlapping heads of loss between these two separate claims. The employee cannot recover twice for the same loss as this would contravene the principle against double recovery. 2.75 If a claimant s employment is ongoing after a personal injury claim in the County Court or High Court has been intimated, and the employer wishes to terminate their employment, it is worth trying to have a compromise of the injury claim included in the wording of any settlement agreement, see section 1 above. 2.76 Note that if a claimant is in receipt of PHI an employer cannot terminate their employment without triggering unfair dismissal and/or disability discrimination. However, there is the option to reach a 15

settlement if the PHI insurer is willing to contribute towards this by creating a settlement agreement which pays off the ET/PI, PHI and losses. 2.77 Although not truly an area of overlap with the ET, stress and bullying claims can often arise out of attempts by employers to apply their own disciplinary and performance management policies. Cases frequently involve sick leave, for example commencing just before a meeting or hearing scheduled under such a policy. However, where absence is enforced, such as by example a decision to suspend, employers need to be careful to ensure that such a step is justified; but it may be, for example, that a decision to proceed with a disciplinary process will, if based on prima facie evidence, be within a reasonable range of responses for an employer (see Coventry University v. Mian [2014]) but a decision to suspend should not be lightly taken without being justified on the severity of the allegations and at least making some initial enquiries (see Yapp v. FCO [2014]). Particularly where an employee is suspended, delay in the investigation/disciplinary process coupled with poor communication regarding progress and indications from the employee as to impact on health can cause employers to come unstuck in a claim. 2.78 In Gogay v Hertfordshire CC [2000] I.R.L.R. 703 the defendant appealed against a finding that they had acted unreasonably in suspending the claimant, a residential care worker, from a children's home, whilst they investigated a purported allegation of sexual abuse made by a young child at the home. The investigation found there was no case to answer. The claimant was awarded damages for loss of earnings and clinical depression. The claimant cross appealed claiming an additional year's loss of earnings. The court held that the defendant had failed to carry out proper inquiries before characterising the child's remarks as an allegation of sexual abuse and that they had breached their implied obligation to act with reasonable care by suspending the claimant, resulting in serious damage to the relationship of confidence and trust between themselves and the claimant. Stress Claims in Other Contexts Discrimination 2.79 Discrimination claims can arise in a Public Liability context also-principally in relation to provision of services to the public. Jurisdiction in such cases is in the County Court, not the ET, and the time limit for proceedings is 6 months. Data Protection Act (1998) ( DPA ) 2.80 Under section 13 of the DPA, claimants who have suffered distress as a result of a contravention of the Act by a data controller are entitled to an award of compensation-this raises the same potential issues relating to the policy coverage as in the cases of discrimination. 2.81 In Google Inc v Vidal-Hall & Others [2015] EWCA Civ 311 the Court of Appeal held that damage under the 1998 Act was not restricted to financial loss and was capable of covering distress also. 2.82 However, as the court had to rely on the jurisprudence of the European Court of Justice relating to the Charter of Fundamental Rights of the European Union (as the 1998 Act did not appear to achieve the Charter aim by itself) it is not clear whether this decision will survive the UK s exit from the EU. Further, the new EU General Data Protection Regulation (GDPR) (Regulation EU 2016/279) is due to come into effect in 2018, the year before the UK s exit from the EU, assuming that Article 50 of the Lisbon Treaty is triggered by the UK in March 2017, as currently envisaged by the government. It is as yet unclear how far the UK will implement the GDPR in light of exit from the EU (the GDPR will, technically, be directly applicable once in effect until the UK leaves) nor what effect that will have. 16

Housing Disrepair 2.83 Increasingly a stress claim is bolted on to what is primarily a respiratory injury claim against a landlord relating to housing disrepair. For further information refer to the guide in this series covering asthma in a PL Context: BLM s Guide to Disease claims arising from Housing Disrepair claims. Limitation and Jurisdiction Summary CLAIM BASIS TIME LIMIT EXTENDABLE? JURISDICTION Equality Act 2010 - EL 3 months - s123(1)(a) Equality Act 2010 (subject to stop the clock provision for ACAS Early Conciliation) Yes - s123(1)(b) Equality Act 2010 Just and Equitable test Employment Tribunal (s120(1) Equality Act 2010 Equality Act 2010 - PL 6 months s118(1)(a) Yes s118(1)(b) Equality Act 2010 Just and Equitable test County Court s114(1) Equality Act 2010 Common law 3 years s11 Limitation Act 1980 Yes s33 Limitation Act 1980 Contract 3 years s11 Limitation Act 1980 Yes s33 Limitation Act 1980 County Court or High Court County Court or High Court Protection from Harassment Act 1997 6 years s2 Limitation Act 1980 (due to s6 of 1997 Act) No County Court or High Court Other statutory causes of action Depends on the statute Yes Depends on the statute 17

3 Investigations: Disclosure and Lay Evidence 3.1 In stress, bullying and harassment claims possibly more than any other disease claim type, early intervention and early full investigation are of critical importance. Firstly, you may need to be able to react very quickly to provide authority or advise in a relatively fast moving environment and at a very early stage, perhaps while termination payment to the claimant is being considered or while a matter is being compromised in the ET. Secondly, in a post-qocs environment, if very substantial irrecoverable legal costs are to be avoided, it is important to be able if possible to resolve matters at a pre-litigation stage. That involves either a detailed and robust Pre Action Protocol response, within the protocol period, dealing cogently with all of the allegations, or a settlement approach. Either approach requires you to Know Your Risk at an early stage and in turn that requires a full effective and early investigation. 3.2 When investigating allegations of stress there are two things which are crucial: ensure that the insured retains all documentation especially the claimant's emails, make sure they are not deleted. And identify all relevant witnesses immediately. In stress claims employers do not always retain crucial documents which would enable them to respond to allegations. With documents destroyed and the departure of employees the prospects of successfully defending the claims drop drastically. Considerations common to stress and bullying/harassment claims The investigations 3.3 A large part of dealing with a claim for stress is evidencing the systems in places and the steps the defendant has taken in relation to the claimant. As part of this detailed queries regarding disclosure and witness statements will be necessary. 3.4 In the pre-action stage of litigation the Disease & Illness Pre-action Protocol applies: see Appendix 1. 3.5 E-disclosure is increasingly important in these type of claims. One way of achieving this is to agree search terms (such as the claimant s name) and search parameters (e.g the email accounts of the claimant and his/her line manager between agreed dates). However, this often misses crucial documents and so, where proportionate to the value of the claim, you may wish to consider a complete trawl of the relevant emails accounts over the relevant period to ensure nothing is missed. 3.6 It is also important to ensure that searches are conducted for electronic documents stored on PC s, laptops, mobile phones and handheld devices such as ipads and other tablets. 3.7 Typical disclosure documents and requirements of lay evidence are set out as follows: Disclosure documents Claimant s full personnel file, including details of the claimant s job description/responsibilities/hours of work/targets and work levels Description/responsibilities/hours of work/targets and work levels Self-certificated absence/absence records and GP sickness certificates/attendance records Claimant s full occupational health records Claimant s full GP and hospital records Any counselling or therapy records DSS medical assessments of incapacity Any stress, bullying/harassment policy or risk assessments undertaken in relation to stress Supervisory documents such as staff appraisals/reviews, monitoring of performance and work levels 18