MODULE FOUR
THE EMPLOYER – EMPLOYEE RELATIONSHIP
UK CASES
Duty of care
Green v DB Group Services (UK) Ltd [2006]
Court: High Court
Damages for psychiatric harm following severe bullying behaviour at work
Green was subjected to a relentless campaign of mean and spiteful behaviour by four
women who worked in close proximity to her and by a male co-worker who acted in a
domineering, disrespectful, dismissive, and confrontatory manner, designed to
undermine and belittle Green in the view of others. Green took a claim for psychiatric
injury to the High Court.
The High Court held that by failing to take adequate steps to protect Green from her
fellow employees' bullying behaviour, the employer was in breach of its duty of care to
her.
A reasonable and responsible employer would have intervened as soon as they
became aware of the problem (as Green had complained about the bullying several
times), but, instead, the managers collectively closed their eyes to what was going on.
Green was awarded £852,000 in damages.
Note for employers
Where a manager becomes aware that an employee is being bullied or
harassed by colleagues, s/he should always take action to put a stop
to the conduct that is causing offence or harm (regardless of whether
the employee has complained). In this case, Green had complained,
but nothing was done to support her. This lack of action led ultimately
to the employee becoming very ill, and to a very large award for
damages.
Negligence
Connor v Surrey County Council [2010]
Court: Court of Appeal
Employee suffered psychiatric injury as a result of the employer’s negligence
Connor was head teacher of a primary school from 1998 until 2005, at which point she
ceased work due to depression. The school was multi-cultural, with a high proportion of
Muslim children and a significant number of children for whom English was not their first
language. The school performed well under Connor's management.
In 2003 there were a number of new members appointed to the school governing body.
This included two Muslim men who had very strong views about Islam and about the
relationship between the mosque and the school. In 2004 Connor complained to the
county council about the way that these two men were behaving.
Over a two year period, these two governors monopolised governors' meetings with
issues relating to Islam, made allegations about poor relationships between the mosque
and the school, made repeated requests for information from the school and made
verbal attacks on Connor's conduct as head teacher. One of the governors in particular
made allegations of racism and 'Islamaphobia' against Connor and sent round a petition
about Connor, trying to stir up criticism of her in the local community.
Connor eventually took ill-health early retirement due to the stress that she endured.
(The county council had been warned by the occupational health adviser that Connor
was being made ill by the situation). Connor took claims of negligence leading to
psychiatric injury, breach of the Protection from Harassment Act 1997, breach of the
duty of trust and confidence and breach of statutory duty under the Management of
Health and Safety at Work Regulations 1999 against the county council.
Connor's claim under the Protection from Harassment Act was unsuccessful, because
the court found that the county council was not vicariously liable for the harassment that
Connor had suffered. However, her claim for negligence (and the other claims, which
were judged to overlap with the negligence claim) was successful. She was awarded
£387,778 damages plus interest.
The court found that the county council should have taken action, and had powers to do
so. They could have removed the governors or appointed additional governors.
However, it had approached the situation by using mediation and holding an
independent inquiry.
The court concluded that the county council had been more concerned about taking the
governors' concerns seriously (their public law duties) than about protecting the health
and welfare of Connor (and some of her staff who were also absent due to the problems
in the school).
Note for employers
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Complaints from outside bodies need to be carefully balanced
against the employer’s duty to take care of its employees’ health
and safety.
Warnings from an occupational health adviser should always be
taken seriously.
Although indications by an employee that he or she is suffering
from stress do not mean that psychiatric injury is certain to
follow, such indications should be taken seriously and steps
taken to remove or reduce the factors that are causing the
stress.
Dickens v O2 [2009]
Court: Court of Appeal
Personal injury claim following work-related stress
Dickens was working very long hours, and generally struggling at work. On two
occasions she told her managers that she was struggling and asked to have some time
off. However, her managers recommended that she make use of the organisation's
counselling service instead.
Dickens went off sick, and her employment was subsequently terminated. She
successfully took a claim of personal injury caused by workplace stress.
The Court of Appeal held that provision of a counselling service may not be enough to
let an employer "off the hook" in stress cases. Rather, active intervention by the
employer may be required. In this case, the employer was negligent because it had
done nothing to reduce the employee’s workload or working hours.
Where an employee has suffered a breakdown to which the employer's negligence
made a material contribution, then the starting point for assessing damages should be
that the employee is entitled to recover full damages, notwithstanding that the employee
might have suffered from stress anyway even if the employer had not been negligent.
The injury to the employee’s health was foreseeable as the employee had advised the
company over a period of time of her problems. The referral to a counselling service
suggested by her manager was held not to have been an inadequate response.
The Court of Appeal also drew an "obvious inference" that the employer's actions
contributed to the employee's psychiatric injury, rather than the employee having to
prove it.
Note for employers
Where the risk of harm to a particular employee from workplace stress
is reasonably foreseeable, and the employer does nothing to protect
the employee from harm, the employer will be liable if the employee
subsequently develops a psychiatric illness as a result of the stress. In
this case, harm was foreseeable because the employee had on more
than one occasion made the employer aware that she was have
serious difficulties coping with her work.
Vicarious Liability
Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd
[2012]
Court: Court of Appeal
Vicarious liability for violent acts carried out by employees
These two cases, both dealing with the issue of whether an employer was vicariously
liable for violent acts carried out by their employees, were heard together at the Court of
Appeal. In the first case, Weddall was deputy manager at a care home. An employee
had not turned up for work, and he needed another member of staff as a replacement.
He phoned Marsh and asked him to work but Marsh was drunk and refused to attend.
Marsh subsequently felt that Weddall was mocking him for being drunk, and told
Weddall that he was going to resign. A short time later he biked to the care home, saw
Weddall in the front garden and violently assaulted him.
In the second case, Brown worked for Wallbank, the managing director of a factory.
They were using an industrial oven as part of a painting process for metallic bed frames.
Brown was loading just one frame at a time, which was wasting time and fuel. Wallbank
told Brown to 'come on', and was intending to help Brown push in more bed frames.
Brown came round to the other end of the oven and assaulted Wallbank, which resulted
in him fracturing vertebrae in his lower back.
In determining the liability of the employer, the Court of Appeal noted that the question
was the extent to which the employee's acts were related to the job that she or he is
employed to do. In the Weddall case, the Court concluded that going to the care home
around 20 minutes after the conversation was independent of work, and hence the
assault was not connected with employment. In the Wallbank case, the assault followed
a work instruction almost immediately and was clearly a response to the instruction. The
Court of Appeal found that the employer was vicariously liable in the Wallbank case, but
not in the Weddall case.
Note for employers
In determining employer liability in these cases, the key question was
whether the acts were connected to the employment. In the Weddall
case, the assault occurred when the employee was off duty, and took
place some time after the conversation relating to work. It appeared
that Weddall went to the workplace specifically to carry out the assault.
However, in the Wallbank case the assault was more clearly related to
work, as it happened directly following a work instruction, and took
place in the workplace when Wallbank was at work.
Source: HRInform