ON THE CASE – EMERGENCY SERVICE DEFEATS OCCUPATIONAL STRESS CLAIM

Tuesday 2 February 2021

A case study detailing the issues that arose and lessons learnt from defending an occupational stress claim.

Background

The Claimant, an emergency worker, claimed six figure damages for occupational stress.

Claim

The Claimant allegedly suffered post-traumatic stress disorder (PTSD) as a result of (1) the failure of the employer to recognise mental distress following personal issues, and/or (2) not being supported following a traumatic call-out.

The Claimant submitted that an emergency service role was inherently dangerous, and it was foreseeable that such work may render employees vulnerable to sustaining psychiatric injury, particularly when there was a known vulnerability.

The Claimant complained that contrary to being supported during personal issues, their line manager dealt with them unfairly in relation to their work performance. The Claimant took exception to being told: “not to discuss personal problems at work”. They maintained that as a result when suffering stress after a subsequent traumatic call-out, they did not feel able to mention the symptoms. 

The Claimant alleged the traumatic event was a task they had not trained for and were insufficiently prepared to handle the stress and that no support was offered.

Defence

The Defendant conceded there was a lack of formal stress risk assessment and no written procedure in respect of traumatic call-outs. However, the Defendant submitted that the Claimant’s line manager carried out all the relevant steps of a formal stress risk assessment.

Some contemporaneous documents created difficulties for the Defendant, such as a grievance outcome making criticisms of the line manager. Also a return to work form, read in isolation, corroborated the Claimant’s assertion of a lack of sympathy. This was confounded by email communications between senior managers comparing varying levels of support between organisations.

Notwithstanding the above, the Defendant argued that after the Claimant returned to work following personal issues, there were no overt signs of stress, and support was offered but declined. Likewise, there were no complaints in the weeks after the traumatic call-out. Also when an issue was raised, occupational health support was arranged immediately and work activities modified.

Detailed witness evidence expanded on the reasons for the Claimant’s criticisms to demonstrate lack of causative relevance. In particular the allegation that the Claimant was told not to bring their personal problems to work was clarified: the Claimant was told that they should feel free to talk to the line manager but not to other team members. 

The defence case was built around the chronology of events, to demonstrate lack of evidence of impending breakdown, support being provided when the Claimant was forthcoming, and the Claimant only being contemporaneously critical of the support provided after sick pay ended. 

In terms of the law, the Court of Appeal in Melville v Home Office [2005] EWCA Civ 6 were quite clear that an employer should foresee that employees exposed to traumatic incidents might suffer psychiatric injury. The issue in that case was whether there was an appropriate system to deal with it and whether the Defendant had in fact implemented a suitable system. 

In the present case the Defendant accepted that a formal system was only introduced after the Claimant’s illness. However, the Defendant was able to provide evidence of how they debriefed and followed up with team members without a formal process.

Outcome

The case was discontinued shortly before trial. While substantial damages and Claimant’s costs were avoided, with qualified one-way costs shifting, there was no scope to enforce the recovery of defence costs.

Lessons to be learnt

While this claim was successfully defended because many features of the Defendant’s management processes were excellent, there were aspects relevant to claims defensibility that could have been handled better.

These included:  

  • Pre-event - risk management
  • Post-event – incident management
  • Post-claim – claims handling.

From a risk management perspective, there could have been a written policy and procedure for ‘defusing’ (a process using discussion of an event to assist the brain process information and to signpost those involved to available support). Subsequent to the Claimant’s difficulties, greater care could have been taken in the wording of documents. If that had happened, even with a pre-action application for disclosure, there may have been insufficient encouragement within those documents to proceed with a letter of claim.

Following a letter of claim, a tactical decision could have been made whether to minimise costs with a short denial based on the documents, or to undertake detailed investigations to provide a fuller response. Present experience indicates that when a detailed response is provided, demonstrating the Defendant’s resolve, there are greater prospects of the Claimant abandoning the claim pre-litigation. 

Risk management and post-incident steps may avoid defendants having to incur administrative costs in respect of a claim. However, if a claim is made, taking time early on could avoid the substantial risks and costs of lengthy litigation.  

The overriding message is to take appropriate claims defensibility and manage the risk in advance through good risk management measures and appropriate human resources practices. When good measures have been taken but a mistake has been made, a claim can be defended on the basis that the mistakes did not give rise to a reasonably foreseeable risk of harm.

Matthew Atwell (matwell@dacbeachcroft.com) is an Associate at DAC Beachcroft. He specialises in the defence of occupational stress claims, working closely with public sector and corporate clients to provide bespoke claims defensibility solutions.

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