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psychiatric harm arising from disciplinary proceedings

6 September 2017

This article is taken from October's health newsletter. Click here to view more articles from this issue.

The law on psychiatric damage arising from disciplinary proceedings has recently been considered in the case of James Marsh v MoJ (2017). The case involved a prison officer accused of sexual misconduct with a prisoner. The allegation of misconduct arose in January 2009 when the defendant employer the Ministry of Justice took no action against the Officer (Mr Marsh). Later in 2009 Mr Marsh asked that the prisoner who had made the complaint be moved to another prison. At that time the Police began an investigation into the prisoner’s allegations. In January 2010 the prisoner was moved after making further, more serious allegations against Mr Marsh. The MoJ suspended Mr Marsh in February 2010 and the Police searched his house. In September 2010 the Police indicated that they would not take any action against Mr Marsh. Despite this, the MoJ did not lift the suspension stating that because of ongoing criminal investigations against other officers related to the same prisoner, Mr Marsh had to remain suspended.

It was not until June 2012 that the suspension was lifted and Mr Marsh invited to return to work. By that time Mr Marsh was suffering from depression and was unable to return. In May 2013 he was dismissed on ill health grounds.

Mr Marsh alleged that the MoJ had been negligent and in breach of contract by failing to investigate the original allegation when it was made and should have moved the prisoner straight away. He also claimed that the MoJ failed to complete its disciplinary process within a reasonable time. Despite reinstating Mr Marsh, in its defence the MoJ said that in all probability Mr Marsh had misconducted himself. Perhaps unsurprisingly, Mr Marsh applied to strike out the defence.

On the allegations, the court held they were not satisfied that Mr Marsh had misconducted himself. The court also held that there was no breach of duty or breach of contract up to and including the point at which Mr Marsh’s home was searched. There was a delay of approximately two months moving the prisoner but that did not expose Mr Marsh to injury and was not a breach of contract. However, there was a breach of the duty of care to Mr Marsh by suspending the investigation whilst other allegations were investigated against different Officers. Without this breach, Mr Marsh would have recovered from his psychiatric injury and returned to work by May 2012. He was therefore entitled to damages for the prolongation of his illness from May 2012.

Ironically given the initial delay, the court case initially took seven months concluding in December 2016.This case highlights the need for employers to act promptly when dealing with misconduct and disciplinary issues against staff. The case was unusual to the extent that the allegations were very serious and involved a Police investigation. Corruption and significant sexual misconduct was investigated against several members of MoJ staff. Some staff were convicted and imprisoned in July 2011. Nevertheless, even where allegations of this seriousness are investigated, employers must follow their own stress policies. They must also take reasonable care not to expose staff to psychiatric injury. The recent case of Yapp v FCO (2015) was considered as was the older case of Malik v BCCI (1998). The court accepted that the job of a prison officer is stressful. That being the case, the question of foreseeability had to be considered in light of that knowledge. As is often the case when defending occupational stress claims, the employer failed to follow its own policies and procedures; in this case failing to properly record and review the suspension at regular intervals. Support had been offered to Mr Marsh in the form of counselling but he had not taken this up; the court found that this was not the real issue. This is reminiscent of the Intel v Daw (2007) case where the court said that an offer of counselling was not a panacea. The MoJ was found not to have given any consideration to the effect of the suspension on Mr Marsh’s mental health even though they knew/should have known he was taking anti-depressants and receiving private counselling. The well-known case of Johnson v Unisys Ltd (2002) and the case of Monk v Cann Hall Primary School (2013) were not mentioned in the lengthy judgment however for those employers considering dismissal these cases are worth consideration. In Monk the claimant was made redundant and made to clear her desk before being publically escorted from the premises. She brought a claim for psychiatric injury. The claim was struck out as it fell within the Johnson exclusion. The House of Lords in Johnson said that an employee may not recover damages for loss caused by the fact or manner of dismissal.

Employers must take into account their employees’ mental health particularly when dealing with potentially harmful situations such as suspension and investigation of serious misconduct. This case serves as a good reminder of the importance of following policies and dealing with matters as expeditiously as is possible.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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