UK: The Cost Of Good Health - Court Awards £800,000 To Bullied City Worker

Mishcon de Reya represented Helen Green against Deutsche Bank in this landmark case, which saw her being awarded over £800,000 in damages.

Miss Green was the victim of "a relentless campaign of mean and spiteful behaviour designed to cause her distress" which amounted to a deliberate and concerted campaign of bullying. Miss Green was singled out by four women at Deutsche Bank and had done nothing to justify the bullying and harassment, which included verbal abuse and denigration, "lewd and crude comment" and interference with her work.

It was held that bullying in the department in which Miss Green worked was "a long standing problem" but the management was "weak and ineffectual" and the managers collectively "closed their eyes to what was going on". Deutsche Bank's HR department was also guilty of "culpable want of care".

Damages were awarded to Miss Green for pain and suffering, her disadvantage on the labour market and past and future loss of earnings.

The case is both unusual and significant because it was brought as a personal injury claim in the High Court, rather than as a claim in the Employment Tribunal for unfair dismissal or discrimination. The claim against Deutsche Bank was that it was in breach of its duty of care to protect Miss Green from foreseeable harm to her physical or mental health. The leading case for personal injury claims for work place stress is Hatton v Sutherland, where the Court of Appeal held that unless the employer knows of a particular problem or vulnerability, it is usually entitled to assume that the employee can withstand the normal job pressures. Many cases therefore fail because the courts have held that any psychiatric injury was not foreseeable by the employer. In the case of Helen Green, the fact that she had already had a nervous breakdown and then returned to work meant that Deutsche Bank would have known she had a particular vulnerability.

The case highlights the importance of effective and attentive management of employees and the need to address bullying, harassment or victimisation in the workplace. A document that sets out the company's policy on this type of behaviour can help explain and define what behaviour would fall into these categories and can serve to highlight the importance placed on these issues by the company. It is also important to make clear to employees, the potential consequences of engaging in this kind of behaviour.

Employers without this type of policy are well advised to consider adopting one. If a policy is already in place, it would be a good idea for it to be reissued to all employees, especially if it was adopted some time ago, together with a memorandum reminding them of the importance of complying with the policy. The memorandum should then be signed by each employee to signify their understanding of the terms of the policy and their agreement to abide by its contents.

Since the case of Meikle v Nottinghamshire County Council, there has been a degree of uncertainty as to whether employers breach the Disability Discrimination Act (DDA) if they fail to provide full pay to employees who are off sick as a result of a disability-related illness. However, the Employment Appeal Tribunal (EAT) has recently decided, in the case of O'Hanlon v Commissioners of HM Revenue & Customs, that employers will not be guilty of unlawful discrimination if they apply their sick pay policy to employees absent from work due to a disability-related illness where that results in the employee receiving less than their full pay.

Mrs O'Hanlon, who was employed by Her Majesty's Revenue & Customs (HMRC), suffered from clinical depression and was disabled within the meaning of the DDA. Over four years, she had a total of 365 days sick leave.

HMRC’s sick pay policy provided that full pay would be provided for up to six months absence in any 12 months, and half pay for up to a further six months, subject to an overriding maximum of 12 months paid leave in any four-year period.

Mrs O'Hanlon brought a claim under the DDA, contending that she was substantially disadvantaged by her employer’s policy compared to a non-disabled person, and that HMRC had failed to make reasonable adjustments to its policy so as to enable her to continue to receive full pay for all of her period of absence. She also claimed that she had been subject to disability-related discrimination since her absence was related to her disability and the failure to continue paying her was unjustified.

The EAT decided that there was discrimination on the grounds of disability as a result of the reduced sick pay. However, the DDA allows discrimination if it can be justified. There were, in the EAT's view, powerful economic reasons for the sick pay policy adopted. It would have cost HMRC a very significant sum (estimated to be in the region of £6 million per annum) to pay full pay to all disabled employees for their entire period of absence.

Mrs O'Hanlon argued that the Tribunal had focused too much on the wider financial implications of the policy, rather than her own particular hardship. Even if there is a proper justification for adopting a particular policy, she argued, the facts of each individual case should be the main focus.

The EAT observed that it had never been Mrs O'Hanlon's case that she had suffered any particular hardship over and above that suffered by others who were absent through disability-related sickness. In any event, the EAT held that it would be "invidious for an employer to have to determine whether to increase sick payments by assessing the financial hardship suffered by the employee, or the stress resulting from lack of money - stress which no doubt would be equally felt by a non-disabled person absent for a similar period".

The EAT went on to consider the wider question of whether it will ever be reasonable to expect an employer to provide enhanced sick pay to a disabled employee. It made the following observations:

• It will be a very rare case indeed where providing higher sick pay than would be payable to a non-disabled person who does not suffer the same disability-related absences, would be considered necessary as a reasonable adjustment.

• If the Tribunal were to have to decide whether an employee's claim for more generous sick pay should override the other demands on the business, it would be "entering into a form of wage fixing for the disabled".

• The DDA is designed to recognise the dignity of the disabled and to require modifications that will enable them to play a full part in the world of work, not to treat them as objects of charity (which may in some cases act as a disincentive to return to work).

• Although the examples of reasonable adjustments given in section 18B(3) of the DDA are not exhaustive, they are all aimed at integrating disabled persons into the workforce. None of them suggests that it will ever be necessary simply to put more money into the wage packet of the disabled.

Employers will welcome this decision. However, the EAT did try to distinguish this case from the Meikle case. In the Meikle case, the employer was held to have contributed to the employee’s illness and caused it to last longer, as a result of its failure to provide the employee with equipment that would have helped her work and alleviated her health problems. In this situation, the payment of reduced pay may not be justified.

The draft Smoke-Free (General Provisions) Regulations have been published for consultation by the Department of Health.

In summary, the draft Regulations provide that:

1. All work premises are to be 'smoke-free' if enclosed or substantially enclosed, meaning premises with a ceiling (unless more than 50% of the 'wall' area is open to the outside).
2. All occupiers of the premises must display a 'No Smoking' sign of at least A5 size and containing the 'No Smoking' logo together with the words: "No Smoking. It is against the law to smoke in these premises except in a designated room." An employer who fails to display the sign is subject to a fixed penalty of £200. If unpaid, or the fixed penalty is challenged, a fine of up to £1,000 (and a criminal record) may be levied.
3. Company cars are deemed to be entirely non-smoking, if they might be used by more than one person.
4. An employee (or visitor) who is caught smoking is subject to a fixed penalty of £50. If unpaid, or the fixed penalty notice is challenged, a fine of up to £200 (and a criminal record) may be levied.
5. An employer who fails to take reasonable steps to prevent smoking (and displaying the 'No Smoking' sign is not likely to be enough) is liable to a fine of up to £2,500