Compensation awarded for stress caused by rushed suspension
The Claimant was employed by the Foreign & Commonwealth Office (FCO) as the UK High Commissioner to Belize. Following allegations of sexual misconduct made against him, the Claimant was withdrawn from his post and suspended pending a disciplinary hearing.
The Claimant became ill with depression after being subjected to a lengthy disciplinary process, at the conclusion of which the allegations were dismissed.
The Claimant never returned to work and eventually retired. He brought High Court proceedings against the FCO for compensation for personal injury, alleging that stress resulting from the unfair process had caused his depression.
The Court of Appeal upheld the ruling of the High Court that the FCO owed the Claimant a duty of “fair treatment” under both the terms of his letter of appointment and by the implied term of trust and confidence and that duty was breached by the FCO withdrawing the Claimant from post and suspending him without any inquiries of any kind into the allegations and without even putting the allegations to him. The Court said it did not require the whole panoply of a fact-finding investigation: only that the FCO should have made “some preliminary investigation” and exercised “some critical judgement” of the allegations made against the Claimant before suspending him.
However, the Court of Appeal decided that the Judge was wrong to conclude that the Claimant’s psychiatric injury was a reasonably foreseeable consequence of withdrawing him from post and suspending him, stating that it would could not be predicted that an apparently robust employee, with no history of any psychiatric ill-health, would develop a depressive illness as a result even of a very serious setback at work. In the absence of awareness, or reason to be aware, of any particular susceptibility of the employee to stress or other vulnerability, an employer is entitled to assume that an employee is of “reasonable fortitude”.
Accordingly, although the FCO acted in breach of the Claimant’s contract, and its duty of care to avoid injuring the Claimant, the Court of Appeal ruled that the Claimant was not entitled to compensation for the psychiatric injury that he had suffered.
Suspension has traditionally been seen as a neutral act, although this might be changing. In 2012, the EAT criticised what appears to be the almost automatic response of many employers to some allegations to suspend the employees concerned as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established.
The latest ruling of the High Court in this case builds on the earlier decision of the EAT and suggests that a precipitate suspension is likely to breach the duty of fair treatment owed to employees.
In appropriate cases, a breach of the duty of fair treatment may support a claim for unfair dismissal but something more is required for a claim for compensation for any psychiatric injury suffered. The test for liability for personal injury is whether the injury suffered is a reasonably foreseeable result of the breach of the duty of care. The Court of Appeal decided that the FCO had acted in breach of its duty of care by withdrawing the Claimant from office without investigating the allegations of misconduct; however, his resultant depressive illness was too remote in this case to be foreseeable.
However, there will be cases where an illness, which flows from an employer’s conduct of a disciplinary process, is not too remote. For example, where there are prior indications of underlying anxiety.