Should Employers Pay the Cost of Causing Mental Illness?
17 April 2015
The Court of Appeal has ruled that John Yapp, a former British high commissioner in Belize who suffered a mental breakdown at the hands of his ex-employer, the Foreign and Commonwealth Office (FCO), cannot obtain damages for his psychiatric illness – because his illness could not be foreseen.
Yapp had a distinguished 37-year career at the FCO until 2008, when he was wrongly accused by a local politician of pinching his wife’s bottom at a social gathering – an accusation that was denied by Yapp. Yapp was not informed of the case against him, was withdrawn from his post, and forced to undergo a disciplinary process. In 2011, he was forced into retirement by ill-health.
In 2014, the High Court in London found the FCO in breach of contract and duty of care for suspending Yapp without informing him of the charges against him. However, the Foreign Office appealed against the ruling.
While the appeal judges upheld Yapp’s claim for unfair treatment, for which he will be compensated, crucially, they ruled that Yapp was not entitled to recover damages from the Foreign Office for his psychiatric illness, as it was not foreseeable, as dictated under the law of damages.
What does the Yapp ruling mean for employees who have suffered psychiatric illness as a result of their employer’s actions?
At the most basic level, the Yapp ruling means that employees will find it harder to prove that their psychiatric illness was a result of their employers’ conduct. They would need to prove that they have an existing psychiatric disposition, which could be triggered by their employer’s conduct. This would also mean disclosing their psychiatric condition to their employers, which, understandably, many employees are loath to do.
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The Yapp ruling shows the arbitrary nature of psychiatry injury cases in employment law. In the first instance, the High Court ruled that Yapp’s depressive illness was foreseeable, because he was suddenly withdrawn from his post without notice and without any knowledge of the accusations against him. However, this was overruled by the Court of Appeal which held that his illness could not have been foreseen by his employer, because his exemplary employment record (37 years), was such that the Foreign Office could not have known their management of the charges against Yapp would result in him developing a psychiatric illness.
In the past year, thanks to the great and tireless work of mental health campaigners and a number of high-profile figures who have come forward with their own struggles of psychiatric illness, the public’s understanding of this illness has – and continues to – improve. What is clear is that mental – or psychiatric (to use the correct medical term) – illness affects people (one in four) at one point or the other in their lifetime and could be triggered by any event (at work or at home), and for any length of time. This means that it is a prevailing illness in society today and should not be treated as an anomaly by employers.
Employers have a duty of care to their employees. However, the Yapp decision sets a high foreseeability threshold in psychiatric injury claims as it held that an employee must now show that an employer’s conduct must be so “devastating” that even a person of “ordinary robustness” might develop a depressive illness as a result. It is likely that this decision will discourage employees from pursuing claims for illnesses sustained as a result of unfair treatment at work.
There is still scope for employees to pursue damages for psychiatric injury as a part of their discrimination claim in the Employment Tribunal where the test of reasonable foreseeability does not apply.
For the statutory tort of unlawful discrimination it is sufficient to show a causal link between the unlawful act and injury on the victim, at least where there is direct discrimination and intentional harassment on prohibited grounds.
In the case of Essa v Laing  IRLR 313 the Court of Appeal held that a construction worker who suffered petty acts of humiliation and insults on the grounds of his race from fellow workers on a building site which caused a dramatic personality change and severe depression and led to him ceasing work altogether could recover for these losses even though the consequences were more profound than might reasonably have been foreseen. At a time when it has been clearly demonstrated that happy employees make a credible difference to the bottom line, surely this is not the kind of message the law should be sending to employees?