In Yapp v Foreign and Commonwealth Office the Court of Appeal (CA) held that the Foreign and Commonwealth Office was in breach of contract when it withdrew Yapp from his position without conducting a preliminary investigation into allegations of sexual misconduct and giving him the opportunity to respond. However, Yapp was not entitled to damages for the depression he suffered because it was not reasonably foreseeable that depression would be the result of removing him from his post. The latter aspect of this case is of real interest to employers for two reasons:

– The CIPD Absence Management survey 2014 showed that 43% of organisations witnessed an increase in reported mental health problems such as anxiety and depression among employees in the past 12 months.

– The CA reviewed the case law relating to personal injury claims involving psychiatric illness and set out three key principles that apply when assessing whether mental illness was reasonably foreseeable.

An employer has a common law duty to take reasonable care of its employees, which requires a safe place of work, a safe system of work, safe equipment and employing competent work colleagues. A breach of this duty can lead to a claim for damages in the civil courts where it is claimed that the breach has resulted in a physical injury or a mental illness. Establishing that an employer is liable in such cases requires showing that the injury/mental illness was caused by work, or a work related issue, the damage must have been reasonably foreseeable and the employer was negligent by not taking reasonable steps to prevent the risk of damage to the employee’s health.

The Court of Appeal's previous ruling Hatton v Sutherland in 2002, provided guidelines on the nature and scope of the employer's duty of care in the workplace where stress-related illness is concerned and in Paragraph 43 of the judgment, the Court set out 16 principles that should be applied to the facts of each case which employers are often referred to as ‘the guiding light’. Having reviewed a number of previous cases involving claims for damages for psychiatric illness, then with regard to the issues of foreseeability, the CA in this case held that the three propositions set out below apply.

– In considering, in the context of the common law duty of care, whether it is reasonably foreseeable that the acts or omissions of the employer may cause an employee to suffer a psychiatric injury, such an injury will not usually be foreseeable unless there were indications, of which the employer was or should have been aware, of some problem or psychological vulnerability on the part of the employee.

– The approach [in 1 above] is not limited to cases of psychiatric illness caused by over-work or other kinds of inability to cope with pressure at work, but can extend to cases of psychiatric illness caused by the employer committing a one-off act of unfairness, such as imposing an unjustified disciplinary sanction, insensitively handling the disciplinary process, not following disciplinary procedures, or suspending an employee where there were no reasonable grounds for the allegation against him or her, or the act of suspension itself.

– Each case must turn on its own facts and while the principles set out in Hatton v Sutherland provide useful practical guidance they must be read as that – guidelines – and they do not have anything like statutory force.

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