Marsh v Ministry of Justice

In claims for psychiatric injury caused by workplace events, foreseeability depends on the particular facts. Ordinary occupational stress does not ordinarily make psychiatric injury foreseeable without indications of a particular problem or vulnerability, but that approach is guidance rather than an absolute rule. It may apply to a single act of alleged unfairness, including disciplinary action.

Where an employer knows, or should know, that an employee is suffering psychiatric difficulties, postponing an internal disciplinary investigation and prolonging suspension may breach both the common-law duty of care and the implied contractual term of mutual trust and confidence. The employer must consider the employee’s health against any request by the police or prosecution authorities to defer its own process. Damages are recoverable for loss caused by the unreasonable delay, subject to causation and remoteness.

The claimant, a prison officer, claimed damages for psychiatric injury and consequential losses arising from allegations of misconduct, a police investigation, a search of his home, suspension and a delayed internal disciplinary process.

The defendant denied breach, causation and loss, and contended that the claimant would have been dismissed for misconduct in any event. The court rejected that case. It found no breach in the events up to and including the search, arrest and initial suspension, but held that the defendant’s decision in November 2010 to postpone its internal investigation, and its continued suspension of the claimant thereafter, caused foreseeable psychiatric injury.

1. Liability before November 2010. The claimant failed to establish breach in relation to the handling of the initial complaint, the police investigation, the search, the arrest, the initial suspension or the defendant’s failure to provide exculpatory material. The search and arrest would have occurred in any event because the allegations required police investigation. The circumstances were distressing and embarrassing, but psychiatric injury was not then reasonably foreseeable.
2. Foreseeability. The court adopted the principles summarised by Underhill LJ in Yapp v Foreign and Commonwealth Office [2015] IRLR 128. Psychiatric injury will not usually be foreseeable without indications of a particular problem or vulnerability, but the approach is guidance and each case turns on its facts. The principles apply to a one-off act of alleged unfairness, including disciplinary action.
3. Delayed disciplinary process. By October 2010 the defendant knew, or should have known, that the claimant was suffering from depression, receiving treatment and was seriously affected by the continuing suspension. The police and CPS request to defer the internal investigation was not binding advice. The defendant had to exercise its own judgment, apply its procedures and consider the claimant’s health. It failed to examine whether there was any real witness-overlap problem and failed to balance the request for delay against the foreseeable risk to the claimant’s health.
4. Breach and causation. The postponement in November or December 2010 was a breach of the common-law duty of care and of the implied contractual term recognised in Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International. The disciplinary process should have concluded by 1 May 2011 and the suspension should then have ended. The breach prolonged the claimant’s depression and caused recoverable loss from May 2012.
5. Outcome and damages. The defence allegation that the claimant would have been dismissed for misconduct failed. Judgment was entered for the claimant. General damages were assessed at £23,500, with further awards for proved financial losses. The £25,389.67 compensation payment under the Civil Service Compensation Scheme was deductible from loss of earnings. The applicable discount rate was -0.75 per cent under the Damages (Personal Injury) Order 2017.
6. Abuse application. The application to strike out the defence was dismissed. Although the defendant’s preparation was unfocused and contained significant flaws, it had not prevented a fair trial or caused injustice.