Employers can, wittingly or unwittingly, find themselves being held liable for workplace mental health negligence. But they can take steps to prevent it happening and successfully defend claims when it does.
What Can Cause Negligence
Workplace mental health (and other forms of) negligence arises when four ‘tests’ are met:
The employer owes the employee a duty of care
The employer breaches that duty of care
The employee suffers harm and that harm was foreseeable
The harm arises as a result of the employer’s negligence
Employers clearly owe their employees a duty of care. This duty principally arises through tort law, but also arises through the Health and Safety at Work etc Act 1974, Section 2. As for the others ‘tests’, brief consideration is worthwhile.
How to Avoid Mental Health Negligence
Somewhat obviously, workplace mental health negligence can be avoided by not breaching the duty of care employers owe their employees.
This can be achieved by employers taking steps to prevent employees from suffering foreseeable mental harm. Considering legal cases, two points stand out (although not exclusively):
Firstly, employers have been found liable based on possessing knowledge of a mental health issue but not acting upon that knowledge. Here, if an employee tells their employer they have poor mental health, provides a medical certificate saying so, or otherwise informs their employer about their poor mental health, the employer will have been provided with knowledge upon which they have a legal duty to act. The employer may be regarded as having been put on notice that mental health problems may arise, so the employer has developed foresight – a key point in establishing negligence. If the employer fails to take action to address the employee’s poor mental health, given the employer has knowledge and so has foresight, if mental harm subsequently arises, the employer may well be found to have been negligent. Employers must foresee mental harm, especially where they have knowledge of the potential for it.
Secondly, in some court cases, whilst an initial claim of mental health negligence was brought by the employee, the court considered other aspects of the law and found the employer liable, including failing to provide a safe place to work. This type of ruling has arisen in cases where bullying and harassment (which the employer failed to address) led employees to bring claims against their employers. Employers should not assume that because mental health negligence (eg. causation) can be difficult to prove, that they are off the hook. Courts may explore wider management practices and consider other aspects of the law.
Clearly, much must be done if employers are to prove they manage mental health sufficiently well. ISO 45003 may, in future, be the standard courts look to, to determine if employers have managed mental health to a ‘reasonably practicable’ standard, just as HSG65 is considered today, to determine if employers have managed physical health and safety adequately.
How to Defend Against Mental Health Negligence
The Rorrison v West Lothian case (Scottish Courts and Tribunals, 1999) provides an example of foreseeability. Although the employee suffered psychological harm, and that harm was caused or exacerbated by the employer, the harm suffered was not reasonably foreseeable, so the employee’s case failed. Mental health negligence claims can be successfully defended.
The four tests of the tort of negligence would require employers to establish one or more of the following in their defence. That:
the employer did not owe the employee who suffered harm a duty of care
the employer did not breach any duty of care they owed to the employee suffering harm
the employee did not actually suffer harm
the harm suffered by the employee did not arise through the employer’s negligence (eg. the harm was not reasonably foreseeable).
Considerations related to these defences might include that:
the employer’s conduct was not culpable in the first place
causation (the link between the cause and effect of harm) cannot be proven with certainty
all work creates some form of stress and the stress created through work was not unreasonable
the employee failed to tell their employer about their poor mental health and how their employer could support them
the cause of the harm suffered was not reasonably foreseeable, whether or not the employee told their employer of their mental health condition
the employee failed to look after their own mental health, so contributed to their own condition
the employee was unduly susceptible to mental harm and/or had pre-existing mental health issues (eg. worries about their physical health, finances, sick relatives) that contributed towards their poor mental health, for which the employer cannot be held liable (although this may not affect liability per se, it might affect damages).
Mental health negligence claims brought by employees against employers are growing in number. Employers must take proactive and preventative steps to ensure high levels of employee mental wellbeing. Employers must also ensure the steps they take to manage mental health minimise the risk of negligence and related claims.