When we think about the risks that arise from a failure to properly manage a disciplinary procedure involving an employee with a history of mental ill health, disability discrimination and unfair dismissal immediately come to mind. However, in Woodhead v WTTV Ltd & Anor the High Court has upheld a claim for negligence against an employer, based on the manner in which disciplinary proceedings were conducted.
Background
The claimant was Managing Director of WTTV Limited. In November 2019 he was given 6 months' notice of termination of employment by reason of redundancy. On 28 November 2019 he was invited to a meeting and told that complaints of sexual harassment had been made against him. In what turned into a lengthy meeting, the claimant was required to immediately respond to the allegations, which related to events in 2017/18. He was then suspended while further investigations took place. On 2 December the employer decided not to pursue a number of the allegations but failed to convey this to the claimant - indeed they continued to actively pursue responses from him to these allegations. They also continued to pursue the disciplinary proceedings while the claimant was off sick, despite there being no urgency. They also attempted to require him to undergo what was described by the Court as an "entirely pointless" occupational health appointment.
The claimant had a history of mental ill health and had been a recovering alcoholic since 1991. He was signed off work on 3 December 2019 suffering from an adjustment disorder that "severely affected his ability to function". On 4 December a letter from the claimant's psychologist confirmed to the employer that the meeting on 28 November had precipitated a relapse of his depressive illness. The claimant was admitted to hospital on 13 December and remained there until January 2020. On discharge he continued to be treated as an outpatient for a further 7 weeks. He did not return to work prior to the redundancy taking effect in May 2020.
High Court action
The claimant brought three claims seeking damages for psychiatric injury. The first was based on the misuse of private information and was unsuccessful. The second was based on negligence and the last based on breach of the implied duty of trust and confidence (breach of contract). The court found it unnecessary to consider the breach of contract claim as it added nothing to the negligence claim. The claim in negligence succeeded in part.
The duty upon which the claimant's case relied was that an employer will not, in the course of an individual's employment, expose them to an unreasonable risk of psychiatric injury arising from employment. In this case, the court concluded that the psychologist's letter of 4 December put the employer on notice that the claimant was at risk of psychiatric injury. This then meant that claims related to events that predated that letter failed. However, the court held that the failure to inform the claimant that some of the allegations were not being pursued, the attempts to continue the disciplinary procedure while the claimant was on sick leave and the requirement to attend the OH appointment were a breach of duty. Expert evidence during the court hearing evidenced psychiatric harm caused by these breaches.
What can be learnt from this?
Throughout this judgment the court refers to the need for the employer to take "reasonable care". In this context that is reasonable care to prevent or reduce foreseeable harm to the claimant's health.
Employers must find the right balance between the need of their business to progress a disciplinary process and the needs of the employee, with particular care being taken where there is known mental ill health. In many cases employers will be within their rights to seek independent OH advice on whether an employee is able to participate in a disciplinary procedure, but it should not be done automatically. Taking some time to assess the circumstances, considering the risks to the business (including other employees) of not progressing a matter versus the risk of harm to the employee being disciplined, will be important. The question of whether an employee could be disabled, and the need for reasonable adjustments, should also always be considered.
