to what extent is an employer liable for psychiatric injury?

Yapp In Yapp v Foreign and Commonwealth Office the Court of Appeal was asked to consider to what extent an employer can be held liable for injuries suffered by an employee, in this case depressive illness and associated symptoms.

Mr Yapp was, with effect from January 2007, the British High Commissioner in Belize. In June 2008 he was withdrawn from his post on operational grounds and disciplinary proceedings were commenced. He received a written warning. His suspension was lifted but in the meantime he suffered from a depressive illness and had heart surgery. He did not take up any other post in the FCO until his retirement in January 2011.

In May 2011 he commenced proceedings against the FCO. He maintained that his withdrawal from the post of the High Commissioner and the handling of the disciplinary proceedings had brought about the depressive illness which in turn caused his inability to work and consequential financial losses.

At a liability hearing in February and March 2013 Mr Justice Cranston found that the withdrawal from the post was a breach of contract and a breach of the common law duty of care owed to him by the FCO. However claims relating to the disciplinary process were dismissed.

Mr Justice Cranston also found that Mr Yapp was entitled to recover damages in connection with his depressive illness, subsequently agreed in the sum of £320,000. However there was a dispute about whether interest on that sum should also be paid. At a further hearing in June 2013 it was held that Mr Yapp was also entitled to interest.

The appeals in the Court of Appeal concerned:

  1. – the FCO’s appeal from the finding that the withdrawal from post constituted a breach;
  2. – that, even if there was a breach, Mr Yapp should not be entitled to damages for depression and its consequences on the basis that they were not caused by the breach and/or that they were not foreseeable consequences;
  3. – Mr Yapp’s additional grounds for upholding the Judge’s order; and
  4. – the award of interest.

The allegations that had led to disciplinary action against Mr Yapp included that he was arrogant and had a bullying style. Complaints about him were also made by the former Belizean Minister for Foreign Affairs, Eamon Courtenay, including that he behaved inappropriately with women, including touching Mrs Courtenay’s bottom, so that people were no longer willing to invite him to events, that he was having a relationship with a member of staff at the Ministry of Foreign Affairs of Belize, that he was not joining diplomatic events, that he had adopted an inappropriate tone with the Belizean Prime Minister and numerous other allegations. He was withdrawn from post because it was considered that, in light of the allegations it was untenable for him to remain in post and he was suspended pending the outcome of the disciplinary process.

During the process the allegations came to the attention of the British media and stories ran in the Mail on Sunday and the Daily Telegraph, a matter of days before the disciplinary hearing. the sanction was a final written warning, to remain on record for two years and a recommendation that he should not be given another appointment as head of mission. It was subsequently agreed that the warning would remain on record for one year.Attempts to arrange a return to work were unsuccessful as a result of Mr Yapp’s ill health.

Mr Justice Cranston found that there had been breaches of duty for various reasons including insufficient preliminary investigations which might have called into question the strength of the allegations.

As for whether the events caused the illness Mr Justice Cranston was unequivocal – his depressive illness was caused by the withdrawal [from his post]: “the depression he began to suffer is also attributable to the decision to withdraw; if he had not been removed from his position as High Commissioner he would never have been affected.” His subsequent cardiac illness did not break the chain of causation. He also found that the financial losses claimed were reasonably foreseeable.

Having considered the relevant authorities Lord Justice Underhill concluded that there was no reason why the FCO should have believed that Mr Yapp had some special vulnerability to depressive illness. This consequence was not reasonably foreseeable and the decision made by Mr Justice Cranston in this regard was therefore wrong. Consequently, although the findings of breach of contract and causation were upheld, the claim in respect of psychiatric illness had to fail.

Martin Malone

By Martin Malone

I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department.
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