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Psychiatric Damage Arising From Disciplinary Proceedings - Angela Williams, Browne Jacobson LLP

08/01/18. The recent High Court case of Marsh v Ministry of Justice (2017) provides that employers must give consideration to the effect on employee’s mental health any suspension from work might have and highlights the importance of dealing promptly with misconduct and disciplinary issues.

The facts of the case were that Mr Marsh (a Prison Officer) was accused by a female prisoner of sexual misconduct including rape. The allegation arose in January 2009 but initially the MoJ took no action. Later in 2009 the prisoner made further allegations against Mr Marsh who asked that the prisoner be moved to another prison. The Police began an investigation into her complaints in January 2010 when she made further more serious allegations. Mr Marsh’s home was searched by the Police in February 2010 and the MoJ suspended Mr Marsh. In September 2010 the Police confirmed that no action was going to be taken against Mr Marsh. Despite this the MoJ did not lift the suspension, claiming that whilst other officers were being investigated for alleged offences committed against the same prisoner Mr Marsh must remain suspended.

The suspension was not lifted until June 2012 by which time Mr Marsh said that he was too ill to return as he was suffering from depression. In May 2013 he was dismissed on the grounds of ill health.

Mr Marsh brought a claim against the MoJ for psychiatric injury arising from negligence and breach of contract. He alleged that the MoJ had acted negligently and in breach of the contract of employment by failing to properly investigate the prisoner’s allegations and by failing to move her when he asked.

The Court held that there was no breach up to and including when Mr Marsh’s home was searched and there was no breach in not moving the prisoner for two months. However, there was a breach of the duty of care to Mr Marsh by the MoJ continuing the suspension whilst the allegations against other officers were investigated. Without this breach the Court considered that Mr Marsh would have recovered from his psychiatric injury and returned to work in May 2012. The Court went on to say that this prolonged investigation caused the premature termination of Mr Marsh’s career and awarded him substantial damages.

This case highlights the need for employers to act promptly when investigating misconduct and disciplinary matters even when, or perhaps particularly when, those allegations are of the utmost seriousness. The Court considered the Court of Appeal case of Yapp v Foreign & Commonwealth Office (2014) and the older case of Malik v BCCI (1998). In the latter case the Court held that it is an implied term of any contract of employment that the employer shall not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

Although not referred to in the judgment, the cases of Johnson v Unisys Ltd (2002) and Monk v Cann Hall Primary School (2013) are worth considering as well. In Monk the Claimant was made redundant and made to clear her desk before being publically escorted from the building. She brought a claim for psychiatric injury which was struck out as it fell within the Johnson exclusion. In Johnson the House of Lords held that an employee cannot recover damages for loss caused by the fact or manner of dismissal. Nevertheless, employers must take into account their employees’ mental health particularly when dealing with obviously stressful situations like suspension and investigation of serious misconduct.

Angela Williams
Browne Jacobson LLP

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