Last week’s workshop on the defence of harassment claims was well attended. Insurers were keen to put probing questions to Professor Tom Fahy, a consultant psychiatrist they regularly instruct in stress at work claims. Dr Max Henderson, a fellow psychiatrist and expert in occupational health and stress at work, was also quizzed. Following my overview of the different legal frameworks applicable to bullying claims, Professor Fahy confirmed that bullying is most damaging when the perpetrator intends to upset the victim or wants others to dislike them. Identical behaviour that is no more than a joke at work is much less undermining.
This ties in quite neatly with the definition of harassment in the Protection from Harassment Act 1997. It covers ‘alarming a person or causing a person distress in circumstances where the bully knows he is having that effect or where a reasonable person in possession of the same information would know this was the effect’ - it depends on context. So what amounts to bullying in an office may not cause alarm or distress amid the general banter on a construction site, for example.
‘Stress’ is not a recognised psychiatric injury and so the courts cannot compensate for it in negligence. However, the courts can compensate for simple alarm and distress under the 1997 Act. The most common psychiatric injuries arising from stress at work and for which the courts can award damages in negligence are: adjustment disorder, anxiety disorder, depression and post-traumatic stress disorder. Insurers noted an increasing tendency to attach adjustment disorder to EL fast track claims. Professor Fahy confirmed this was the appropriate diagnosis where there had been an adverse effect on function. Consequently, sleepless nights may be a basis for making the diagnosis, adding a minimum of £1250 to the claim. No clarification could be given as to the precise tipping point when a set of symptoms becomes an adjustment disorder.
Against this background, there was little comfort to be had from the difficulties claimants encounter in proving anxiety disorder, depression or PTSD. These conditions are multifaceted and it is crucial to obtain and review a complete set of medical, occupational health and counselling records. Chronologies that include events at work interwoven with the relevant records can be revealing and assist in distinguishing between an alleged perception of bullying by management and simple performance management issues. They also identify non-work related triggers.
Dr Henderson made a refreshing contribution by confirming that distress and unhappiness are part of the human condition and do not necessarily indicate mental illness. Furthermore, there are different risks at different points along a claimant’s journey with psychiatric illness, which is a process rather than an event. What did not constitute a risk at work when a claimant was well may become a risk when returning to work after a period of stress related absence.