Armstrong v Secretary Of State For The Home Office

Psychiatric illness caused by work does not establish an employer’s breach of duty. The claimant must show that the employer ought reasonably to have foreseen the risk of psychiatric injury and that reasonable steps were omitted. Requiring a prison officer to supervise a prisoner treated as a suicide risk does not, without more, constitute a breach. The assessment remains fact-sensitive, particularly where the employee insists that she is capable of continuing and removal may itself cause unfairness or stigma. An amendment alleging breach of statutory duty may be refused where it is raised too late and has no real prospect of success.

The claimant, a prison officer, sought permission to appeal against Owen J’s dismissal of her claim for psychiatric illness arising from her work supervising Rosemary West at Winchester Prison. The judge found no foreseeable risk of psychiatric injury, rejected the case that the claimant had been encouraged to form an unusually close relationship with Mrs West, and held that allowing her to continue after an emotional outburst did not breach the employer’s duty.

The claimant also sought, very late, to challenge the refusal to amend her particulars of claim to allege breach of statutory duty under regulation 3 of the Management of Health and Safety at Work Regulations. The central questions were whether the factual findings disclosed an arguable breach of duty and whether the proposed statutory claim had a real prospect of success.

1. Application dismissed. The Court of Appeal refused permission to appeal because the proposed appeal had no real prospect of success.
2. The fact that the claimant’s involvement with a prisoner caused or contributed to psychiatric illness did not establish breach. It was necessary to show a foreseeable risk of psychiatric injury arising from the work and a failure by the employer to take reasonable steps.
3. Supervising a prisoner treated by the prison authorities as a suicide risk was not, by itself, a breach of duty. The judge was entitled to find that the cumulative circumstances before the first verdict did not make psychiatric injury foreseeable, particularly given the claimant’s own evidence that her reaction was unexpected.
4. The finding that the claimant’s superiors should have removed her from the duty after her outburst on the following morning was not shown to be irrational or legally flawed. Employers must address the difficult balance between protecting an employee and respecting an employee who presents herself as competent and wishes to continue working.
5. The additional challenge concerning regulation 3 was raised too late. Lady Justice Hale was not persuaded on the material before the court that it had a real prospect of success. She noted Cross v Highlands and Islands Enterprise [2001] IRLR 336, where civil liability under the regulations was rejected and the framework directive was held not to address stress-related psychiatric injury.
6. Lord Justice Simon Brown agreed with Lady Justice Hale. The formal order was: application refused.

• Court of Appeal (Civil Division): Permission to appeal against Owen J’s order of 8 October 2001 was refused. The related challenge to the refusal to amend the particulars of claim was also rejected as too late and lacking a real prospect of success.
• High Court, Queen’s Bench Division: Owen J dismissed the claim for damages, finding no foreseeable risk of psychiatric injury and therefore no breach of duty.