UK: failure to inform employee with mental health condition of narrowed scope of disciplinary process was breach of duty of care

Employers on notice that an employee has a mental health condition may need to adjust the way in which they conduct disciplinary proceedings, given the inherent stress they involve.  Care should be taken to ensure employees are not misled as to the allegations and evidence against them and are given appropriate time and support to respond.  Deadlines should be adjusted where appropriate, and the appropriateness and timing of occupational health assessment given careful consideration.

In this case, a sexual harassment complaint was made against W (concerning disclosure of information about his sex life to a freelance worker with whom he worked).  W was already on notice for redundancy.  He had an existing long-standing psychiatric condition for which he was receiving psychiatric care.  On receipt of the complaint, the employer invited him to a meeting, without prior notice of the content of the complaint, and questioned him for a lengthy period (without giving him a copy of the written complaint) before suspending him pending investigation.  Following the meeting W became very unwell, was signed off work with depression and anxiety and two weeks later was admitted for in-patient treatment followed by continuing out-patient treatment. He remained suspended and was signed off work sick until his contract ended.  He claimed that the conduct of the investigatory and disciplinary process amounted to a breach of the duty of care not to expose him to an unreasonable risk of foreseeable psychiatric injury. 

The court found that the initial meeting was badly handled and it was unreasonable to confront W with serious and intimate allegations and expect him to respond to questions over a lengthy period without prior notice, when there was no need for such urgency.  The employer should only have informed him of the complaints and suspension and fixed another meeting to allow him to respond.  However, the court noted that there is nothing inherent in the conduct of a disciplinary procedure from which a risk of psychiatric injury would ordinarily be foreseeable.  Although the meeting had a severe impact on W's mental health, it occurred before the risk of harm became reasonably foreseeable and therefore did not breach the duty of care.

The employer then received correspondence from W's psychologist explaining that the trauma and stress of the disciplinary meeting had destabilised him and precipitated a relapse of his depressive illness such that further treatment was needed before the process could continue.  From this point, the employer was on notice both of W's condition and the risk that his health could be affected by continuing the disciplinary process.  The court noted that, when the risk of harm is foreseeable, the obligation is to take reasonable care to prevent or reduce the harm; this obligation can (and may often) require the employer to adjust its usual procedures or courses of action.  It must take steps "that are reasonable in the circumstances bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicality of preventing it and the justifications for running the risk". 

W instructed a solicitor who requested further time for W to provide comments on the allegations.  The employer imposed unnecessarily short deadlines, given W's condition and its own delays in providing written confirmation of the complaints and evidence.  More significantly, the employer provided a copy of the investigation report suggesting all five allegations were being pursued, when it became apparent during disclosure that the 'findings' column of the report had been deleted and the investigator had actually rejected some of the complaints.  The intentional failure to inform W that no further action would be taken on some of the complaints, once W's mental condition became known, was a clear breach of the duty of care.  The court accepted medical evidence that W's perception that he had not been heard or understood contributed to the existence and duration of the psychiatric condition that developed; had he been given the information that some complaints has been rejected, this would have demonstrated to him that his response to the complaints was being heard and understood.   The continuing failure to inform him that the scope the of the disciplinary proceedings against him had narrowed therefore materially contributed to his psychiatric injury (quantum still to be assessed).

The court also found that the employer's attempts to restart the disciplinary process, while W remained certified off sick and receiving out-patient treatment, were unreasonable.  There was no need to give him 7 days to confirm whether he wished to respond to the complaints in writing or at a further meeting;  there was no evidence to support the employer's contention that it needed to resume the process because of ongoing distress to the complainant.  It was also unreasonable to attempt to require W to have an occupational health assessment (in accordance with its contractual right and usual policy), given that the efficacy of this was reduced due to it having to be by video during the pandemic, that the employer had plenty of evidence from W's own doctors (and could seek further information from them) and that W's doctor had stated that it would be counter-productive to his condition to be interrogated about his fitness to work at that point.  However, neither of these two breaches materially added to W's psychiatric injury, in part because the distress was minimised by the fact that W's lawyer handled the requests.   (In other cases, such failings might well exacerbate the condition of an unrepresented employee, or contribute to a claim of constructive unfair dismissal or of failure to make reasonable adjustments for disability.)

More helpfully for employers, the court rejected W's claim for misuse of private information.  W had shared information about his sex life with the complainant in the context of what he thought was a friendship, developed outside of work through AA meetings and other interactions.  The information was heldto be private, but the complainant was justified in disclosing it for the limited purpose of making a harassment complaint in accordance with the employer's policy.  Equally, the employer was justified in using the information in the disciplinary proceedings. (Woodhead v WWTC Ltd)