Lessons learnt from a stress at work case

We have recently had the good fortune to be involved in a successful stress at work claim where the employer eventually agreed to an out-of-court settlement of a little over £250,000.

In this case, the employee brought a personal injury claim for workplace harassment and bullying in his role as an administrative officer for a well-known government agency. Over two periods, he was subjected to a high level of scrutiny and micro-management, which ultimately resulted in a diagnosis of an Adjustment Disorder and an inability to return to any form of work.

The employee had also alleged that he was the victim of a sham redundancy, but had not acted in time to bring a successful claim in the employment tribunal.

Stress at work claims are notoriously difficult to win for employees due to problems proving whether the employer could have forseen a psychological injury occurring and whether their wrongdoing was the true cause of the harm suffered rather than their normal working life or any other aspect of the employee’s life.

So where did it go wrong for the employer?

As one might expect, the employer defended the case on the basis that the employee was performing poorly and being managed appropriately in the circumstances and that psychological injury was not foreseeable.

Courts expect a paper trail from an employer to support an assertion that an employee is a poor performer, particularly where events have continued for a number of years. The employer had no such records in this case. In fact, the only documented grievances had come from the employee. The employer was left with the factual evidence of its two protagonists who held much more elevated positions than the employee, but whose evidence was contradicted by other employees who had witnessed their management style and the deterioration in the mental state of the employee. The employer was on the back foot from the start.

Another aspect in which stress at work claims often fall down is where the role itself naturally involves pressure and tight deadlines and so it then becomes difficult to say whether the psychological damage suffered was caused simply by the job itself and not due to any bullying by the employer.

The employee’s role in this case was an administrative assistant, which one might not necessarily categorise as an unusually stressful role. His case was that it was transformed into a stressful role by excessive micro management and unnecessary and heavy-handed chastisement. The witness evidence of ex–colleagues was key, which is often difficult to secure in these cases due to employees fearing for their own positions. Unfortunately for the employer, the managers’ behaviour over time had upset a number of other employees who had since moved on and felt no loyalty.

The medical evidence is of course also of crucial importance. The parties’ respective psychiatrists were agreed that the behaviour of the managers had caused the injury. The employee’s medical history revealed that he was a vulnerable character, which often assists the employer in the “how could we have known?” defence, but the experts were also agreed that even a person of reasonable fortitude would have been psychologically damaged in the face of similar treatment.

The main difference between the experts was their view on whether the employee would ever be able to work again. The employee having been off work for some four years, the employee’s expert considered that the position was irreversible. The employer’s expert disagreed.

As can sometimes happen, the employee themselves can unwittingly harm their own case. He had started working in a charity shop for one day a week and this had improved his confidence. It was a far cry from a full-time job, but a path to recovery could be seen. His own remarks on this improvement reflected the tendency of those who are psychologically damaged to paint a far rosier picture of themselves than is in fact the case perhaps to hide the embarrassment from being out of work. There was a risk at trial that this rosier view of the future would have been taken by the judge. This was the only saving grace for the employer.

Lessons learned? The obvious point if a bullying style of management extends over a number of years, it is far more likely that the unlucky employee suffering injury will have corroborative evidence. Secondly, if an employer is going to allege poor performance as part of its defence, there must be a paper trail to support this. If the employer cannot point to minutes of meetings or staff appraisals, for example, which reflect what is alleged, it will be in difficulty. Finally, it pays to make some assessment as to the effect that the employer’s behaviour – however justifiable it may seem – is having on the employee. To simply continue with one’s own agenda regardless is asking for trouble……..…or maybe just be nice?

Ben Norman (Barrister at Laveer Legal Ltd.) 29th January 2015