October 15, 2018

Occupational Stress: Vicarious liability claim for harassment fails


The LSE has successfully defended a claim for occupational stress which was valued in excess of £4 million. The Claimant alleged that the LSE was vicariously liable for his harassment by a fellow employee ("the Complainant"). By notifying staff and students, the Complainant had allegedly acted in a malicious manner when making her allegations.


The Claimant was employed as a Teaching Fellow. He was subject to a formal complaint from the Complainant, who was his Graduate Teaching Assistant. The Complainant alleged misconduct on the part of the Claimant following a trip to Boston and Seattle. The Complainant circulated her allegations to various individuals within the Defendant organisation and beyond.

The Complainant instigated a formal complaint, and the Claimant was notified. The Claimant was diagnosed with an acute stress reaction, unable to continue to teach and never returned to work at the LSE. The Claimant did not engage in the formal complaint process.

The complaint was subsequently deemed not proven.

The Claimant brought a claim for damages for psychiatric injury arising from these events. The Claimant sought loss of earnings for the duration of his remaining career due to the after-effects of the Defendant's alleged failures.

The claim was based on the following causes of action:

  1. The Defendant was vicariously liable for the actions of the Complainant, who allegedly harassed the Claimant pursuant to the Protection from Harassment Act 1997 ("the Act");
  2. The Defendant's handling of a complaint against him was negligent;
  3. The Defendant's Harassment Policy was incorporated into the Claimant's contract, which the Defendant then failed to follow;

The Defendant denied any vicarious liability, and contended that the handling of the complaint was reasonable, and thus, not a breach of contract. The Defendant also denied that the Claimant's injuries were foreseeable.


The claim was dismissed, and judgment was ordered for the Defendant.

The Court found that the Complainant had legitimate grounds for her complaint, and it could not be said she was "acting in a malicious, oppressive or unacceptable manner." Therefore, her conduct did not amount to a breach of the Act.

Mrs Justice Davies did accept that stress was reasonably foreseeable stating that: "The nature of Miss D's complaint was serious and had the potential to severely harm, possibly end, the claimant's employment with the defendant."

However, the Court found that the development of the Claimant's depressive illness was not reasonably foreseeable by the Defendant. The nature of the alleged breaches was not "of themselves sufficient to create a foreseeable risk of psychiatric injury."

The Court found that the "severity of the Claimant's reaction… was a reflection of his personality". 

The Defendant was found to hold no relevant information which could have given an indication of this response.

Although the Court was critical of early delays in handling the complaint, these were not sufficiently serious that they gave rise to a foreseeable risk of injury or breach of contract. The Defendant was not otherwise on notice of any particular psychological vulnerability on the part of the Claimant.

It is unclear whether or not the Claimant intends to appeal.

What can we learn?

  • Although the Court accepted that 'stress' was reasonably foreseeable, the judgment made clear that the Defendant had no evidence or information which could have rendered the development and extent of the Claimant's depressive illness foreseeable. The Claimant's allegation he had notified two individuals of previous problems prior to commencing employment was not accepted. However, "even on the Claimant's account, there was nothing to put the Defendant on notice of any vulnerability…"
  • The judgment suggests that simply mentioning previous mental health problems in broad terms to employers is insufficient to be considered as 'notice' of a possible susceptibility to certain illnesses. Although particularly fact specific, employers will require relevant information of an employee's past medical history in order to render development of a subsequent mental illness reasonably foreseeable.
  • The Court was critical of the Claimant's conduct in attempting to deal with the incidents resulting in the complaint. Mrs Justice Davies noted that his action "while well intentioned on his part, was inappropriate and unprofessional." This reinforces that employees should follow mandated procedures and HR processes rather than attempting to resolve issues in their own manner.
  • The course of the evidence in this case and the nature of the cross-examination process, provide a useful illustration of the 'bar' that needs to be cleared if a Claimant is to establish that particular events were likely to present a reasonably foreseeable and clinically significant psychiatric reaction such as to represent a breach of duty on the part of an employer.