Case highlights limits to employers’ duty of care

State Hospitals Board could not have predicted causing employee’s psychiatric illness, says Scottish Court Session

Most employers will be aware, not least from recent cases concerning stress, that they have a duty to take reasonable care of the health and safety of their employees. They have a responsibility to make reasonable efforts to avoid exposing employees to the risk of injury, including psychiatric harm.

The development of the case law in this area has given employers cause for concern, given the apparent increase in the number of employees reporting stress and anxiety within the workplace. How far, then, does the employer’s duty go?

Some comfort may be taken from the recent case of Fraser v State Hospitals Board for Scotland which indicates there are limits to the duty to take reasonable care when it comes to stress.

The case came before the Scottish Court Session. Fraser had been employed as a nurse in a high-security prison hospital. In 1994, he was accused of failing to ensure that proper security checks were carried out.

He refused to accept that he was responsible for these security breaches, as a result of which, in 1995, his manager decided to remove some of his responsibilities and put him under supervision of a lower grade nurse for three months.

In the event, this supervision lasted longer and in January 1996 Fraser, who was resentful about the treatment he had received, went off sick. He did not return to work. He was diagnosed as suffering from a combination of stress and depression and told the board that this had resulted from his inability to cope with the changes made to his responsibilities. He was subsequently dismissed on grounds of mental health in June 1996. Fraser claimed damages for personal injury.

The court looked at three issues:

– Whether Fraser was suffering from a condition for which damages were potentially recoverable.

– Whether the employer was responsible for causing that condition.

– Whether it was reasonably foreseeable that he would suffer the condition.

In answer to the first question, the court accepted medical evidence that, although stress, anxiety and depression were not psychiatric illnesses, a depressive disorder, such as that suffered by Fraser, was.

The court also accepted that the changes to Fraser’s responsibilities were contributory causes to his illness.

Finally, the court considered the third question – had it been reasonably foreseeable that the board’s treatment of Fraser would cause him to suffer harm?

The answer was "no". The employer’s duty to protect employees from injury does not go beyond taking reasonable care to prevent psychiatric or physical harm. It is not intended to protect employees from feelings such as anger and bitterness or normal conditions such as stress or anxiety which do not cause "injury".

It was accepted that managers often have to take decisions, for example, in relation to disciplinary issues, which they know are likely to cause anger and anxiety for the employees concerned. However, it is going too far to say that a manager ought to anticipate that these decisions will cause the employee to suffer a psychiatric illness – actual harm.

Key points

– The court held that it did not matter whether the employee was a person of "normal fortitude" or somebody particularly susceptible to psychiatric harm as a result of the employer’s acts.

– If an employer can say that they knew a certain act or decision would make an employee upset but there is nothing to suggest that the employer should have known it would make the employee ill, the employer will have a defence to the claim.

– The way in which the medical information was considered by the court reinforces the need to ensure that expert evidence is as specialised for the particular condition as possible.

By Sarah Lamont, partner at Bevan Ashford

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