Employees’ Compensation Claim
Negligence Claim under Common Law
Duty of Care
A Medically-Recognised Psychiatric Illness
Reasonable Foreseeability of the Psychiatric Injury
Standard of Care and Breach of Duty
1. The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary.
2. To trigger a duty for the employer to take steps, the indications given by the employee of impending harm to mental health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
3. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.
4. The employer can only reasonably be expected to take steps which are likely to improve the employee’s situation.
5. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
6. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
Implications for Employers and Employees
Nevertheless, the High Court of Australia in Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 set more stringent requirements in terms of duty of care and foreseeability of psychiatric illness. It held that employers would not owe such duty of care in the first place if employees are told to simply perform their contractual obligations, and the employees have to complain specifically about the likelihood of psychiatric illness in order that the illness be reasonably foreseeable.
It is possible for Hong Kong courts to follow the English or Australian authorities to impose liability on employers for their employees’ work-induced psychiatric illness.
The issue of foreseeability of psychiatric illness, stated as the “crucial test” by the Court of Appeal in Barber, largely depends on the information that the employer possesses about the particular employee when signs of psychiatric illness begin to arise. Therefore, in order to maintain a potential claim on psychiatric illness induced by occupational stress, an employee should inform his or her employer clearly of excessive stress and seek help at the first instance.
For employers, to minimise risks of negligence claims based on psychiatric illness induced by occupational stress, they should be more acquainted about and cater for the mental conditions of their employees. Moreover, employers should be encouraged to recognise psychiatric illness and excessive stress in the workplace, and should not treat such illness as a taboo or perceive it as mere weakness or incompetence. As suggested by Lord Walker in the House of Lords in Barber, employers must recognise that it is not in their interests that a valuable employee is permanently lost through psychiatric illness.
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2015