Disciplinary procedures and workplace stress: Is your organisation at risk of a personal injury claim?

When you are in the middle of a disciplinary investigation, you will undoubtedly be alert to the possibility of a claim for unfair dismissal. However, it is crucial to think more broadly about potential legal risk.

In the recent case of Marsh v Ministry of Justice, the High Court found that a prison officer had suffered psychiatric damage as a result of a protracted and poorly handled disciplinary process. Finding that his employer had given very little thought to the impact on his health of the delay in concluding internal procedures, the Court awarded £280,000 to take into account his pain, suffering and loss of amenity (due to depression and stress) as well as lost earnings and pension rights.

This case is an important reminder that, if excessive delays to a process cause an employee to become genuinely ill, you may face an expensive claim for personal injury.

What happened?

The Claimant, Mr Marsh, was employed as a prison officer at a facility which housed only female inmates.

In 2009, Surrey Police began investigating the prison, following allegations of corruption and sexual misconduct within the prison. Mr Marsh was implicated in a number of allegations of sexual assault made by a serving prisoner.

In February 2010, the police searched Mr Marsh’s home and he was immediately suspended on full pay by his employer. No conduct allegations were put to him by his employer at this stage. He remained suspended for a period of 28 months until his employer concluded disciplinary proceedings in June 2012, when all charges against him were dismissed. This consisted of a 20 month period of inaction and 8 months of internal investigation time.

By this point however, Mr March was suffering from depression and was unable to return to work. He was dismissed due to ill health at the end of May 2013. He alleged that his employer had caused him psychiatric harm in a number of ways, including suspending him unreasonably and leaving him on suspension for an unreasonable period of time.

What did the High Court decide?

Importantly, the employer in this case thought it had robust reasons for placing the investigation ‘on hold’. The police had asked the prison to delay the investigation into Mr Marsh’s conduct as criminal proceedings were being pursued against a number of his colleagues and they were concerned about evidence being compromised.

However, the High Court did not accept this explanation. It held that Mr Marsh’s employer had breached its duty of care to him by delaying the disciplinary investigation and prolonging the suspension. Mr Marsh had been distressed throughout the process and on a number of occasions and expressed a wish for matters to be concluded as quickly as possible. It was apparent that he was unwell and foreseeably likely to get worse.

Although proceedings were ongoing against other prison officers, Mr Marsh had been informed in 2010 that he personally would not face any charges. Additionally, the default position under his employer’s disciplinary policy was that internal proceedings would not be delayed pending a criminal investigation. Mr Marsh’s employer had agreed to the request from the police to delay the process without properly considering whether it was appropriate to depart from their policy or giving any real thought to Mr Marsh’s wellbeing. By the time the employer began its internal investigation Mr Marsh was taking antidepressants and was undergoing counselling.

The High Court acknowledged that it was entirely appropriate for Mr Marsh’s employer to investigate such a serious allegation (regardless of whether criminal charges were to be pursued against him by the police). However, it found that investigation should have begun, at the latest, as soon as it became clear that Mr Marsh would not face criminal charges. Given the “rollercoaster nature of all that had gone before” it held that “any sensible person would have realised that the claimant’s mental health would be adversely affected by a decision to delay further”.

What does this mean for me?

This decision emphatically underlines the importance of progressing internal disciplinary proceedings without delay. This is even more important where you know that an employee is distressed, vulnerable or is suffering from a mental health condition which might be exacerbated by delay. Don’t fall into the trap of thinking that, because an employee has been suspended on full pay, they do not ‘lose out’ whilst on lengthy suspension.

You will no doubt have been involved in a disciplinary investigation where an employee has claimed they are too unwell to proceed due to depression or stress. While this is frustrating, the converse situation arguably carries greater legal risk. In this case, the employer’s inaction in spite of the claimant’s request for swift resolution was ultimately very costly.

Deciding whether to postpone or press ahead with a disciplinary investigation when criminal proceedings are taking place in parallel can be very tricky. Much will depend on the facts of the case, what you disciplinary policy says and whether the individual employee is facing criminal charge and conviction. If you are unsure of the best course of action in these circumstances we would be happy to advise you.

It is always important to remember that claims such as those brought by Mr Marsh will be covered by your EL insurance. That might change the way that you approach risk (possibly depending upon the level of your deductible/excess), but what is of the utmost importance is that you notify your EL insurers promptly when you become aware of the possibility of a claim. If you do not do so you risk coverage issues arising.

This decision is also a reminder that suspension from duty should be handled with care. In the case of Yapp v Foreign and Commonwealth Office (where the facts were in many ways similar to Mr Marsh’s case) the Court of Appeal found that the withdrawal of a diplomat from his post, before any allegations had been put to him or any investigation had taken place, was a breach of contract entitling him to damages. The Employment Appeal Tribunal made a similar finding this month in the case of Agerayo v London Borough of Lambeth where the suspension of a teacher, without proper consideration of any alternative, was also held to breach her contract. Even in concerning circumstances, suspension should not be a ‘knee jerk’ reaction but should be carefully considered and justified.