Safeguarding Psychological Health

Claims for mental health issues arising out of employment – collectively known as ’occupational stress claims’ although covering a wide variety of potential causes such as overwork, lack of support and bullying – are not new. They are, however, on the increase and as employers, it is wise to be alive to this.

Such claims tend to fall into two broad categories: occupational stress; and bullying, harassment and discrimination.

In regard to occupational stress, there is nothing inherently unhealthy or inappropriate about an employee being busy, feeling slightly under pressure or being emotionally invested in a piece of work. This is experienced in many if not all types of employment at some point.

The duty of care owed by an employer to an employee is not to ensure their safety or the absence of any foreseeable risk of injury, the duty is to take such care for their safety as is reasonable in the circumstances and not expose them to unnecessary risk of injury.

The duty of care in occupational stress cases is informed by the leading case of Hatton v Sutherland (2002), which sets out 16 principles to be considered by the court on the question of breach of duty in such cases. In short, foreseeability of impending risk of actual harm to health is key and, upon an employer being on notice of such an impending risk, an obligation arises to take positive steps in respect of such. It is possible for an employee to prove they have sustained psychiatric injury as a result of their work and for the claim to still fail as they are also required to prove that the injury was caused by a breach of the duty of care owed (by the employer).

Mental health issues relating to bullying/harassment and discrimination fall into two broad categories, and both can give rise to personal injury claims and claims in the employment tribunal:

  1. Under the Protection from Harassment Act 1997, employers can be held vicariously liable for acts of harassment committed by their employees. The bar is high and the conduct has to amount to be ‘… sufficient to sustain criminal liability under section 2 of the Act.’ (Majrowski v Guy’s and St Thomas’ NHS Trust(2006)).  It is not uncommon to see allegations of bullying said to constitute breach of the common law duty of case in occupational stress cases where the behaviour is below this threshold.
  2. Discrimination in the workplace occurs when an employee is treated unfavourably due to a protected characteristic, so gender, sexuality, race, religion, pregnancy or disability. Such behaviour can cause mental health issues in the victim which can give rise to claims as above.  Psychiatric injury is not required for an employment tribunal claim.

Advice for employers

 Employers cannot guarantee that their employees will not suffer mental health issues whether related to work or otherwise, nor are they expected to. Employers are expected to take such care for the safety of their employees as is reasonable in the circumstances. Practically the following will be important in preventing and defending any potential claims:

  • Risk Assessments that cover the risk in question
  • A documented procedure for grievances
  • Identification of ‘Red Flags’, so requests for help, notification of issues etc. and taking positive steps to address these
  • Provision for confidential discussion/advice
  • Occupational health support being available and engaged as necessary
  • Keeping records of interactions including emails and meeting notes
  • Liaison with occupational health support and/or the GP before any return to work after time off due to work related mental health issues

Superdry designer wins almost £100k pay-out in age discrimination case against retailer

A former Superdry designer has won nearly £100,000 from the company after it refused to promote her because of her age.

Knitwear design specialist Rachel Sunderland, who has more than 30 years’ experience working in fashion, was employed by the Gloucestershire-headquartered firm between 2015 and 2020. The 56-year-old quit in 2020 after being repeatedly passed over for promotion by less experienced members of staff. According to the tribunal documents, Superdry thought her risk of leaving the company was low “no matter how she was treated”. The review noted the retailer failed to promote her or grant her the job title of ‘Lead Designer’, despite her experience.

The tribunal notes state: “We find that the claimant did resign from her post as a result of these acts and omissions. We accept that the claimant had every reason to anticipate promotion to Lead Designer status. “She had been given no clear and satisfactory explanation as to why she had not been promoted, which would have allowed her to understand what was required of her in order to gain promotion.”

In April 2020, Ms Sunderland was placed on furlough until July. When she returned to the business, she was told she would be designing the Autumn Winter 2020 knitted accessories range, which she said, “felt like a demotion” as she would be working on “key fobs and beanies”. She handed in her notice of July that year. Ms Sunderland said, “despite being angry and upset”, she wanted to leave Superdry in as “pleasant a manner as possible” – but was told she would have to work a three-month notice period as the design department was short staffed.

Ms Sunderland told the tribunal she was “demoralised” when, in September 2020, a woman with 20 years less experience than her was hired as a Lead Designer shortly after two other similarly ranked designers had been made redundant.

Following a five-day hearing in Bristol in March, Superdry was ordered to pay Ms Sunderland £96,208.70 in compensation for unfair dismissal and age discrimination.

A Superdry spokesman said: “Superdry is committed to equality for all of its employees. While the tribunal’s judgment does not reflect our culture and values, we thank it for conducting such a thorough review, respect its decision and will review its findings.”

Full details on the case can be viewed via this link Bristol employment tribunal.