FOR THE GREATER GOOD?
SUMMARY DISMISSAL, PSYCHIATRIC INJURY AND REMOTENESS
While stress at work claims where a Claimant has been exposed to a lengthy and continuous period of
stress recently benefited from judicial guidance (Daniel v Secretary of State for the Home Department
[2014] EWHC 2578 (QB) and Bailey v Devon Partnership NHS Trust [2014] WL 338768), the law
when dealing with claims for psychiatric injury arising from the a single act, despite the recent Court
of Appeal Judgment in Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 remains
fluid and turbulent.
Historically, the Courts have taken a somewhat cautious approach to this area of law for a number of
reasons, primarily in fear of creating flood-gate litigation. However, as our understanding of
psychiatric injury continues to grow, alongside a fluctuating employment market and a marked
dilution of the rights of employees to bring claims, the opportunity for the abuse of power has become
a genuine cause for concern, specifically in the service industries of the UK’s major cities.
Johnson, Eastwood and Monk
An employer’s potential liability for psychiatric injury occasioned by a single event was dealt with by
the House of Lords in the case of Johnson v Unisys Ltd [2001] UKHL 13. Here it was held that
employees were not entitled to attempt to rely on statutory provisions pertaining to unfair dismissal in
order to circumvent the statutory unfair dismissal regime, by bringing claims in common law alleging
that that their dismissals breached the implied term of trust and confidence. These claims fell within
what become known as the Johnson exclusion area, namely, they should be adjudicated on in the
Employment Tribunals. Lord Hoffmann justified this on the basis that it would be contrary to
parliamentary intention to develop a general common law right, whose substance would shadow the
right not to be unfairly dismissed, but dispensing with the limitations that Parliament had imposed on
the statutory right.
However the House of Lords in Eastwood and anor v Magnox Electric plc [2004] UKHL 35 held a
that a distinction should be drawn between events leading up to the dismissal in respect of which a
common law breach of contract claim may still be brought, and the dismissal itself for which the only
remedy is an unfair dismissal claim. This principal was further refined by the Court of Appeal in the
case of Monk v Cann Hall Primary School [2013] EWCA Civ 826 where a Claimant was allowed to
bring a claim for damages for psychiatric injury resulting from the manner in which she was
dismissed, having been publicly escorted from her workplace. The process of dismissal and the
dismissal itself where held to be distinct, and if an employee could show that the facts relied upon
occurred prior to any dismissal, a claim for psychiatric injury could be advanced.
Yapp v Foreign and Commonwealth Office
The Court of Appeal in the case of Yapp have again reassessed this area of law showing a clear
acceptance that such claims are not only possible, but can succeed in the correct circumstances.
The facts of Yapp are that in January 2007 Mr Yapp was appointed to the post of High Commissioner
in Belize by the Foreign and Commonwealth Office (FCO). Ten months after commencing this post,
the FCO received allegations in confidence that Mr Yapp had sexually harassed women at social
events and had behaved in a manner likely to damage the reputation of the United Kingdom. It was
also alleged that he had bullied and harassed staff members. In dealing with these allegations, the
FCO withdrew Mr Yapp from his role on the basis of the first allegation (which was later found to be
unsubstantiated) and he received a written warning in respect of the second allegation. Mr Yapp
became depressed and remained unable to work for several years until his retirement in 2011. A claim
was brought and Cranston J sitting in the High Court held that the decision to withdraw Mr Yapp
amounted to a breach of contract, and a breach of the FCO’s duty of care to Mr Yapp. It was also held
that these breaches caused Mr Yapp to develop a depressive illness.
The FCO appealed and argued that firstly that Cranston J had applied the wrong test to the question of
whether Mr Yapp’s withdrawal was fair, and secondly that even if Mr Yapp’s illness was caused by
the breach of contract or breach of duty of care, it was too remote to attract damages. The issue of
whether not the FCO’s conduct amounted to a specific breach of the common law duty of care owed
to Mr Yapp was not explored, the respondent focusing on the issue of whether the decision was unfair
and the issue of the remoteness.
The Court of Appeal decided that while the FCO enjoyed a broad discretion whether or not to
immediately withdraw a post-holder for operational reasons (precluding any effective and fair
investigation) this was not inconsistent with the exercise of such discretion being unfair. It had been
unnecessary for the FCO to act pre-emptively, without making any further inquiries or even putting
the allegations to Mr Yapp. Cranston J had been entitled to find that if the FCO was going to take
such a drastic step, it should have found a way of dealing with the issue of confidentiality (§60-67).
However, with regard to foreseeability and remoteness, Mr Yapp’s psychiatric injuries were deemed
to be too remote, and the appeal succeeded on this point.
The approach to remoteness
The Judgment in Yapp provides a useful summary of the law on remoteness and sets out the test to be
applied in such cases (§119), which can be summarised as follows. Firstly, where considering the
common law duty of care, and in particular whether it was reasonably foreseeable that an employer’s
acts or omissions would cause an employee psychiatric injury, such an injury would not usually be
foreseeable unless there were indications of some problem or psychological vulnerability on the part
of the employee (Barber v Somerset CC [2002] EWCA Civ 76, [2002] 2 All E.R. 1). Secondly, where
a Court is dealing with claims for breach of the common law duty of care these such claims were
governed by the law of tort, (Walker v Northumberland CC [1995] 1 All E.R. 737), and it was
necessary to establish that psychiatric injury was reasonably foreseeable. If a Claimant could satisfy
this point, then the issue of remoteness could not arise. Thirdly, these principals applied to cases of a
one-off breach or act, as in Mr Yapp’s case, and as established in Deadman v Bristol City Council
[2007] EWCA Civ 822, [2007] I.R.L.R. 888). Fourthly, the Court of Appeal stressed that there was no
hard and fast rule with all cases turning on their own facts. Fifthly, when dealing with a claim based
on breach of the implied duty of mutual trust and confidence, or of any express contractual term, the
action was rooted in contract, and accordingly the contractual test of remoteness would be applicable,
The Court of Appeal accepted that an employer’s conduct might be so devastating that it was
foreseeable that a person of ordinary robustness might develop a depressive illness, but that it would
be exceptional for an apparently robust employee, with no history of psychiatric fragility, to develop a
depressive illness as a result of even a very serious setback at work.
It was on this basis, and with some sympathy for Mr Yapp, that Underhill LJ found on the facts of the
case there was no evidence of sufficient weight to render it foreseeable that the withdrawal of Mr
Yapp from his post would have caused him to suffer a psychiatric injury. Factually, the FCO’s actions
had not been tantamount to dismissal, and Mr Yapp was told that if exonerated by the investigation,
the FCO would try to find him another posting. The FCO was in essence attempting to follow due
process, despite the unfairness of what had occurred. Therefore the psychiatric injury suffered by Mr
Yapp was not reasonably foreseeable and could not give rise to a claim for a breach of the common
law duty of care.
Where does this leave us?
Usefully for Claimants, the Court of Appeal has provided in the Judgment that claims for psychiatric
injury as a result of a single breach of duty of care can succeed. Of note Underhill LJ, at §123-133
reiterated that:
“I have not found this issue easy, but in the end I have come to the conclusion that the Judge was
wrong to find that it was reasonably foreseeable that the FCO's conduct in withdrawing the Claimant
from his post without having had the opportunity to state his case might lead him to develop
psychiatric illness…. it will in my view be exceptional that an apparently robust employee, with no
history of any psychiatric ill-health, will develop a depressive illness as a result even of a very serious
setback at work… But his decision was not one of primary fact, or indeed one of fact at all. Rather, it
was a judgment… This Court is as well placed to make that judgment as he was; and, having reached
a different conclusion I am, I think, obliged to give effect to it.”
Underhill LJ was effectively stating that all such cases are purely fact-dependent and must be
approached in a bespoke format, with the decision formed by the Judge relating to remoteness
remaining a deciding factor. The inference to take from the Judgment is that assuming a Claimant can
satisfy the issue of remoteness or foreseeability, then a Court is likely to be favourable to such claims.
Practically this could involve supplying medical evidence asking for a period of leave before any
action is taken, and expressly stating that any disciplinary process needs to be halted due health
reasons. In the bulk of such cases, a period of paid leave could be granted in which an employer could
consider any allegations, and deal with them fairly. The refusal to do so then would be likely to reflect
either unreasonable behaviour, or an intention to run the risk of injury that has been brought to its
attention.
Conclusion
Whilst Mr Yapp was not successful with regards to his claim for psychiatric injury it needs to be
remembered his claim for unfair dismissal succeeded.
Yapp sets out that claims of this nature can and will succeed where “the employer was, or should have
been, already aware of some relevant susceptibility or vulnerability on the part of the employee”
(§156). This is actually quite an easy a step for a Claimant to begin to surmount when the
requirements are considered.
At trial, a potential issue may be whether or not (due to the speed with which such disciplinary
proceedings moved) a Claimant may practically have lacked the time to clearly voice their concerns,
or suggest alternatives. On this basis, early intervention which clearly communicates the risks faced
by Claimants prior to such a dismissal, and seeks to delay proceedings on a fair and balanced basis
would be likely to be viewed as strong evidence that the employer not only knew of the risk, but went
a step further and ignored a reasonable suggestion which would have preserved both parties positions.
As the cases of Monks and Yapp both show, employers no matter their size will on occasion decide on
a course of conduct which is not entirely reconcilable with the issue of fairness and their duty of care
to an employee on the basis that it is necessary for the greater good of their interests.
In this sense, their conduct is unlikely to change no matter what a Claimant says, but where a
Claimant draws their concerns to their employee’s attention, a claim for psychiatric injury would be
likely to succeed. As Underhill LJ took pains to stress, all such claims turn on their own facts, and in
this sense, there is a certain sense of justice to a well-informed Claimant seeking to use the bullish
intentions of their employer against them, to generate a scenario where their claim must succeed.
LIAM RYAN