How do we value compensation for ‘injury to feelings’?

Thank you to Kate Wilson at Park Square Barristers for this post. Please follow this link to view her CV.

As was considered in the previous post, ‘injury to feelings’ (i.e. an emotional reaction falling short of a diagnosed psychiatric disorder) may be compensated for if an employee is able to bring a claim pursuant to the Protection from Harassment Act 1997. Here we consider how to approach the task of valuing awards for injury to feelings.

The starting point for the quantification of such awards are the guidelines set down by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871. Noting the difficulties presented in valuing compensation for intangible losses that are incapable of objective proof, for example subjective feelings of upset, frustration, mental distress, fear, humiliation and anguish of varying degrees of intensity, the Court of Appeal identified three broad bands of compensation for ‘injury to feelings’ (as distinct from compensation for a psychiatric injury). These were updated on 25th March 2019 and are set out in tabular form below.

BAND 1 Awards of between £900 and £8,800 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
BAND 2 The middle band of between £8,800 and £26,300 should be used for serious cases, which do not merit an award in the highest band
BAND 3 The top band should normally be between £26,300 and £44,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £44,000.

Unlike damages for personal injury, the gravity and duration of the acts themselves will influence the level of award, together with the motivation of the harassing party and the effect of the harassment on the employee, whereas personal injury damages focus entirely on the effect on the injured party. The amount awarded will depend upon the aggravating circumstances of each case. Personal injury practitioners see the Vento bands as generous compared to the damages available for psychiatric injuries as set out in the Judicial Collect Guidelines (14th Edition). How, therefore, do we value claims for injured feelings and psychiatric harm suffered by the same individual in response to a campaign of harassment?

This was the question for the Court of Appeal in Martins v Choudhary [2007] EWCA Civ 1379. Some courts have made separate awards, whereas others provide a global award. The Court of Appeal concluded that there should be no hard and fast rule about whether separate awards should be made. There may be some cases where it is more just and convenient to assess compensation covering both aspects. However, and particularly where the psychiatric injury is more substantial, it may be more appropriate to make a separate award to understand the reasoning underpinning the judgment. This is especially so if the judge is to avoid falling into error by compensating the employee twice on the same basis, a principle known as ‘double recovery’.

Occasionally the conduct of the defendant in non-harassment claims may be so atrocious that an award of general damages alone would be insufficient. In such rare instances justice may be achieved by the making of an additional award of aggravated damages to compensate for injured feelings as well. In the modern slavery case of AT and Others v Dulghieru and Another [2009] EWHC 225 (QB), in which the claimants had been trafficked into the sex industry, Mr Justice Treacy stated “In my award of general damages, I have included an element to cover the psychiatric harm suffered. That however, is to be distinguished from the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the Defendants.” He then went on to make an enhanced award to account for the appalling actions of their traffickers.

In conclusion, the Vento guidelines can produce sizeable awards where the harassed employee has not endured psychiatric harm. Damages for injury to feelings arising out of harassment in the workplace may take into account both the nature of the conduct complained as well as its effect. Making an award for both injury to feelings and a psychiatric injury is not only permissible, but in the most outrageous cases may be desirable.

In the next post we will consider the availability of damages for the loss of congenial employment.

Can you be compensated for ‘injury to feelings’?

We last examined how we define an injury of the mind, and in particular the point that to have a valid claim for occupational stress or nervous shock it is necessary to prove the existence of a psychiatric disorder, as distinct from mere grief and upset. There are, however, cases in which this rule is not observed.

Bullying and harassment in the workplace that causes a person to suffer ordinary emotional reactions, such as anger and bitterness, can be recompensed without the individual needing to have suffered a diagnosed condition. Just as damages are available for ‘injury to feelings’ arising from a breach of the Equality Act 2010, since the landmark House of Lords decision in Majrowski v Guy’s and St. Thomas’ NHS Trust [2006] UKHL 34 it has been possible for employees to seek compensation in the civil courts for the misconduct of co-workers that amounts to a breach of the Protection from Harassment Act 1997. Section 3(2) of the 1997 Act empowers the courts to award compensation for “any anxiety caused”. As was said by Mr Justice Nichol in S&D Property Investments Ltd v Nisbet [2009] EWHC Civ 1726 “…Parliament was here intending to make plain that compensation could be given for the concern that harassment can generate even if it does not give rise to any psychiatric or medical condition.” He added that it could be proved by the claimant’s own explanation of the effects of the harassment, without the need for expert psychological evidence.

Before Majrowski the Court of Appeal gave guidance in Vento v The Chief Constable of West Yorkshire [2002] EWCA Civ 1871 on the correct scale of awards for injury to feelings falling short of a psychiatric disorder. The subsequent ‘Vento guidelines’ are periodically updated, and were last revised on 25th March 2019.

Whether the employee establishes harassment in breach of the Equality Act 2010, or the Protection from Harassment Act 1997, the considerations involved in valuing awards for injury to feelings are similar, but not identical. The distinction was explained by Mr Justice Nichol in S&D Property Investments Limited in which he stated “Compensation for discrimination necessarily involves an award for the humiliation of being treated differently on an impermissible ground such as race or sex. That is not a necessary feature of a claim under the 1997 Act. On the other hand, it is an essential characteristic of a claim under that Act that there has been a course of conduct. There will not be a case where damages for harassment have to be assessed for an isolated or one off occurrence.”

So to conclude, claims for harassment in the workplace are the exception to the rule that compensation for occupational stress is reserved only for those who have suffered a psychiatric injury. The amount of any award will be affected by factors such as the gravity and duration of the acts complained of, as well as the motivation of the harasser and the effect on the employee. In this sense injury to feelings awards are distinct from ordinary personal injury damages, which focus entirely on the harm caused to the individual.

In our next post we will consider the guidance offered by the Court of Appeal on how to approach the task of valuing awards for injury to feelings in the cases of Vento (2002) and Choudhary v Martins (2008).

How do we define an injury of the mind?

English law suffers from a Latin hangover, as illustrated by the antiquated maxim de minimis non curat lex, literally meaning “The law does not concern itself with trifles”. As we shall see, psychiatric injury claims are not exempt from the de minimis principle. Injuries to a person’s mental health caused by the circumstances of his or her employment are frequently referred to by lawyers as ‘stress’ claims, which is an oxymoron as stress is not a psychiatric condition and therefore cannot give rise to a claim. Indeed, stress is an essential aspect of the human condition, and may just as equally be beneficial.

In truth, anxiety and depression are ordinary human emotions, so said Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410. He continued – “So, the first hurdle which a plaintiff claiming damages… must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.” A decade later, in Hicks v Chief Constable of the South Yorkshire Police [1992] All ER 65, he repeated “it is perfectly clear that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded”. This was applied most recently by Mr Justice Stewart, who in the Kenyan Mau Mau litigation held that fear alone does not amount to personal injury: see Kimathi v FCO [2018] EWHC 1305 (QB).

The term ‘nervous shock’ is one used by lawyers to describe a category of cases concerning those who have been traumatised by terrible events, whether as a primary victim or as a witness. Speaking in Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, Lord Ackner explained “‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period in time of more than gradual assaults on the nervous system.” Again, in Page v Smith [1996] AC 155, Lord Keith defined it as “a reaction to an immediate and horrifying impact, resulting in some recognisable psychiatric illness. There must be some serious mental disturbance outside the range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear.” A simple application of the principle was seen in Reilly v Merseyside RHA [1995] 6 Med LR 246, in which the unsuccessful claimant sought damages for claustrophobia and fear suffered when trapped in a lift. Ordinary emotional responses to unpleasant experiences of even the most serious type cannot found a claim for damages.

Likewise, distress brought about by the apprehension of a physical injury that has not materialised, and may never do so, is not actionable. This was the conclusion of the House of Lords in Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39, in which it was held that the inhalation of asbestos dust and fibres leading to innocuous pleural plaques could not give rise to a claim for anxiety arising from concern over the possibility of suffering a future disease.

In the workplace context employers are under no obligation to protect their staff from normal reactions. An employee who suffers no more than distress at work, falling short of a psychiatric injury, cannot recover damages for negligence. As was explained in Fraser v State Hospitals Board for Scotland [2000] ScotCS 191 (11 July 2000) “…the duty is only to take reasonable care to prevent psychiatric harm. It is not to protect an employee from unpleasant emotions such as grief, anger and resentment or normal human conditions such as anxiety or stress. These do not involve and form of ‘injury’ at all.”

In Hussain v Chief Constable of West Mercia Constabulary [2008] EWCA Civ 1205 the claimant sought damages from the police for misfeasance in public office by failing to respond to his numerous calls for assistance. As it is tort that is non-actionable without proof of damage, the Court of Appeal was concerned with the question of whether the superimposition of transient “somatised physical symptoms of anxiety such as numbness and discomfort in the left arm and left leg” was sufficient. Perhaps unsurprisingly, it was unanimous in its conclusion that this did not amount to material damage.

The practical application of this principle is straightforward. To advance a claim it is necessary first to obtain expert psychiatric evidence diagnosing an illness recognised by a consensus of professional opinion, such as those contained within The World Health Organisation’s Classification of Mental and Behavioural Disorder (ICD-10), or the American Psychiatric Association’s statistical diagnostic criteria (DSM 5). Any psychiatric injury will suffice, however peculiar: Hinz v Berry [1970] 2 QB 40. In reality the psychiatrist’s first port of call is the patient’s medical history. Absent any past GP attendances presenting with symptoms of psychological illness it is likely that the individual’s condition will be seen as ‘sub clinical’, for which read non-actionable.

If there’s one thing that lawyers enjoy more than Latin then it’s laws that they can disregard. Having illustrated the rule, therefore, in the next post we shall examine its exceptions.

 

Prevention is better than litigation.

Tackling workplace stress is becoming an important business topic, with many organisations realising that good mental health is just as important as good physical health. Many pioneering organisations are incorporating the topic of stress within their wellbeing initiatives, helping to raise awareness of the issues as well as break down stigma.

In the last few years initiatives such as mental health first aid, mindfulness and resilience training have become very commonplace interventions. And while such interventions are widely adopted, you still need to add a big dose of prevention into the mix.

How effective is your current approach to managing stress in your workplace? Do you know whether it contains the right mix of primary, secondary and tertiary interventions to truly be effective?

The HSE are presently advertising a course this it says “will help you to understand the essential components you need to develop a successful strategy, recognise the features, benefits and limitations of popular interventions, critique your current approach to ensure it contains the right ingredients and help you refine your strategy to set you on the road to success.”

If you would like to reduce the risk of costly and time consuming litigation then join the HSE in helping ensure that we all go home healthy.

The scale of the problem.

Some say that occupational stress is the back injury of the 21st century, such is its prevalence. Looking at the statistics published by the Labour Force Survey on 31st October 2018 it is easy to understand why.

  • 595,000 workers were suffering from work-related stress, depression or anxiety in 2017/18.
  • 4 million working days were lost as a result.
  • It accounted for 44% of all work-related ill health cases and 57% of all working days lost due to ill health.
  • The economic cost is around £8.5 billion a year.

Don’t simply take my word for it. The General Secretary of the TUC, Frances O’Grady, says: “Work-related stress is a growing epidemic. It’s time employers and the Government took it more seriously. Warm words are not going to fix this problem. Managers need to do far more to reduce the causes of stress and support employees struggling to cope. This means tackling issues like excessive workloads and bullying in the office. Toxic workplaces are bad for staff and productivity.”

Dr Carole Easton, chief executive of Young Women’s Trust, says: “Many young people, especially young women, are facing huge pressures in the workplace and mental health concerns are skyrocketing. Low pay, insecure work and workplace inequalities are leaving young women struggling to make ends meet and impacting on their mental health. When we have surveyed young people, half of young women said their work has had a negative impact on their mental health.”

Duncan Spencer, from the Institution of Occupational Safety and Health, says: “Evidence continues to grow about the negative impacts of poor mental health at work. Poor mental well-being caused by stress, depression and anxiety accounts for a very high proportion of sickness absences in the UK, despite legal and moral imperatives for employers to manage psychosocial risks in the workplace.”

Courtesy of EU Directive 90/269/EEC the 1990’s saw a revolution in our approach to manual handling in the workplace, which brought prosperity to the manufacturers and retailers of lifting and carrying equipment, and created a regiment of lawyers keen to capitalise on avoidable back injuries suffered at work. This blog is a call to arms to lawyers. Until employers are fearful of receiving a letter of claim then the problem will not be abated.

Not all work-place stress gives rise to an actionable claim, but many potential claims are being missed though ignorance. This blog aims to contribute to a greater understanding of what constitutes a viable claim, and the measures that managers should adopt to protect their workforce from becoming psychiatrically damaged by their role or environment.

Framing the case.

Unlike the effects of falling off a ladder, injuries arising from occupational stress are difficult to foresee and tend to occur over a substantial time frame. Explaining why the employer was responsible is also relatively straightforward i.e. he shoud have used a scaffold or a harness. Not so with occupational stress claims, which are unique in personal injury litigation in that they often have an involved narrative. In that respect they have more in common with employment tribunal claims. How you present the facts and apply them to the law requires editorial judgment, and may determine the success or failure of a case. This is what is meant by the term ‘framing the case’.

The following tips on the topic of drafting particulars of claim are taken from a workshop delivered for the benefit of Oakwood Solicitors, who specialise in claimant occupational stress claims.


 

Stick to the facts. In particular, establish what happened to the claimant, who knew about it, how and when. The opinions of non-expert witnesses are inadmissible. It is therefore irrelevant to describe what a person may have thought or felt at any given point in time.

Tell the story, and keep it tight. If you want to get a judge offside then just write an impenetrable account of what happened and leave him or her to figure it out. Alternatively, you could describe the factual matrix in a readable manner than has a good flow and is easy to appreciate on first reading.

Set out the employer’s actionable duties. Citing inapplicable regulations and directives does not help the claimant’s cause, nor does rehearsing the HSE’s guidance. For example, if the case is about harassment cite the Protection from Harassment Act 1997, then set out the employer’s common law duties and explain why it is vicariously liable for the actions of the claimant’s co-workers.

Nail foresight from the outset. As the issue of whether the employer foresaw a real risk of psychiatric injury in the claimant is often ‘the threshold question’ answer it properly and from the outset. Explain who knew about his or her mental state, what they knew, how and when.

Only allege breaches of duty that you are able to prove. This may be obvious, but cut and paste particulars are unpersuasive and cloud the judge’s view – they need to be bespoke. It is better to dedicate three or four paragraphs to what should have happened, and how it would have made a difference to the claimant, than to take a vague ‘scatter gun’ approach containing dozens of broad allegations.

Only allege breaches of duty that were causative. Again, this sounds self-evident, after all, why would you do otherwise? However, it’s rarely so simple. The best approach is to draft the particulars of breach and seek the opinion of a psychiatrist as to which, on balance, caused or materially contributed to the illness suffered. There’s no point in alleging a failure to provide counselling when the expert states that it wouldn’t have made a jot of difference absent a dramatic reduction in the client’s workload.

Ensure that the breaches that you allege dovetail with the story. Does the narrative account contain material that is irrelevant to whether or not the employer was in breach of duty? More importantly, does it omit some fact or detail that is key to proving your case? Always check that the factual background explains all that it has to, and no more.

Include a summary on the cover page. This is required whenever the particulars of claim extend to 20 pages or more, but is often best practice in any stress claim. The point is to explain what the case is about, and more importantly, why you should win. The exercise is probably lost if the summary extends to more than a page.

Keep It Simple Silly! The particulars of claim are supposed to be a concise explanation of the claim, so is it really necessary to set out all that happened before a time when foresight is established? A verbose and needlessly complicated explanation for why the employer is possibly liable helps nobody, least of all the claimant. Always stay focused on the task of establishing the facts and explaining why they prove the mental illness suffered was necessarily the employer’s fault.

Finally, don’t take my word for it. Instead read the stinging rebuke of Lady Justice Thirlwall in Marsh v Ministry of Justice: “The amended particulars of claim is 38 pages long. The amended defence runs to 114 pages. Both pleadings are far longer than was necessary to identify the issues in the case. The defence in particular includes unnecessary detail, much of which is irrelevant to the claimant. Had proper focus been applied at an earlier stage the trial would have taken at most 8 days, instead of the 15 that it occupied.”