Can you claim compensation for psychological injuries in the workplace?

There are many misconceptions when it comes to the legal obligations of employers towards their employees. The idea that protection for employees only relates to physical injuries is simply wrong. All employers have a duty of care towards their employees, which includes their physical health and their mental well-being. Consequently, if you have suffered psychiatric or psychological issues as a consequence of your work, you may be entitled to compensation.

What are the most common psychological injuries?

When looking at psychological issues, this is best described as:-

Mental harm, suffering, damage, impairment or dysfunction as a direct consequence of an action or failure to take action by an individual.

Some of the more common psychological issues include:-

• Post-traumatic stress disorder
• Depression
• Anxiety

This is by no means the complete list of psychological injuries which can lead to compensation, but it gives you an idea of their nature. Unfortunately, many people believe that an injury claim must be physical, something you can see with your eyes. Consequently, we can only imagine the number of legitimate psychological injury compensation claims which have not been pursued.

What are the most common reasons for stress in the workplace?

Unfortunately, stress is a common factor for many people in the workplace, often unavoidable in certain circumstances. While this does not reduce an employer’s duty of care towards employees, it will be factored in if you were to pursue a claim. Some of the more common forms of stress in the workplace are brought about by:-

• Constant pressure to hit deadlines
• Long hours
• Lack of training
• Substandard support
• Inexperienced staff given inappropriate roles

Such is the pressure in the modern-day employment market that many people feel they have to “just get on with it” even if they are under constant stress. However, when people are under constant stress, the pressure will build and ultimately, something will have to give, often their mental well-being.

What health conditions can stress bring about?

Unfortunately, the idea that once your stress has been alleviated, everything will be okay is another misconception. The effects of stress on the body and the mind can sometimes be long lasting and potentially life-threatening. Some of the more common health conditions associated with stress include:-

• Migraines
• High blood pressure
• Heart problems
• Asthma
• Skin conditions
• Arthritis
• Depression
• Anxiety

There are various physical and mental symptoms relating to stress which can act as an early warning sign. Some of the physical symptoms of anxiety include:-

• Increased heart rate and chest pains
• General aches and pains with particular emphasis on the shoulders, neck and back
• Constant headaches
• Grinding of teeth
• Shortness of breath
• Dizziness
• Constantly tired, anxious and depressed
• Change in eating habits
• Problems sleeping
• Regular gastrointestinal problems
• Reduced libido

Some of the mental symptoms associated with stress include:-

• Constantly feeling emotional
• Always feeling overwhelmed/on edge
• Short-term memory loss
• Difficulty concentrating
• Use of alcohol/drugs as an emotional crutch

Those suffering from psychological issues can experience one or more of the above symptoms, leading to one or more of the above short, medium or long-term health conditions. As with physical injuries, psychological injuries need to be treated as soon as possible. There is no reason why the sufferer will not “return to their former self”, but there is enormous emphasis on early diagnosis and early treatment. Don’t suffer in silence!

Proving psychological injuries

In theory, the idea of proving psychological injuries is relatively straightforward. You would have to prove that the “damage” suffered was a direct consequence of “reasonably foreseeable scenarios”. In essence, this is a long-winded term for lack of wholesale risk assessment.

As part of an employer’s duty of care, they must carry out constant risk assessments in the general working environment and for specific activities. They are also obliged to put in place “reasonable measures” to reduce both the potential for physical and mental harm. Failure to carry out both of these elements could leave an employer open to compensation claims from employees.

Primary and secondary victims

There are two specific areas to consider when looking to pursue a claim for psychological injuries in the workplace. These are known as primary and secondary victim status, both of which are legitimate reasons to seek damages.

Primary victim

As the term suggests, a primary victim in this scenario is usually involved in a traumatic accident in the workplace or subjected to unfair pressure. In this instance, the employee must be able to attribute negligence to an employer or a work colleague.

Secondary victim

A secondary victim has witnessed a traumatic accident or unfair treatment of a colleague in the workplace. Traditionally, the secondary victim would need to prove a relatively close tie with the affected party.

Gathering evidence for your claim

Many people are put off claiming for psychological distress because they believe it can be challenging to prove. However, we have seen great strides in psychological treatment in recent years. Consequently, clinical psychiatrists or consultant psychologists are often called upon to examine and assess the claimant. At this stage, the courts expect to see a summary of the victim’s psychological situation and a detailed treatment plan.

As we touched on above, there are various mental symptoms and physical attributes associated with psychological damage. Therefore, where there are genuine psychological injuries, it should be relatively easy to diagnose. While it will depend upon the individual’s scenario, other types of supporting evidence would include:-

Examples of negligence

Ultimately, any claim for psychological injuries would need to provide examples of negligence by an employer or work colleagues. These examples may include issues such as:-

• Substandard training
• Lack of equipment
• Constant pressure to hit deadlines
• Bullying and harassment in the workplace
• Lack of support services

This list is by no means exclusive, but it does give you an idea of what kind of workplace pressures may lead to psychological injuries.

Diary of events

It is often the victim who is the last to realise they are suffering from psychological injuries. In a perfect world, the claimant would keep a diary of events that led to their psychological injuries. However, these scenarios are not always apparent to the claimant, and therefore a diary of events may not be possible.

Witness statements

The support of your colleagues is critical in assisting your recovery and proving you are the victim of negligence. However, finding colleagues prepared to speak out about their employers can, on occasion, be challenging. Even though employees have various legal rights, one of which is whistleblowing protection, these are not always respected by employers.

Evidence of similar actions in the past

Time and time again, it is only when employers are hit in the pocket that they will change their workplace practices. Consequently, if the claimant can provide evidence of similar negligence in the past, this can very often strengthen their claim. It may also open a window of opportunity for previous sufferers to claim compensation.

Historic correspondence

Many compensation claims against employers will involve historical correspondence between the two parties. This correspondence will often prove that the employer was made aware of “challenging situations” and took no action in many cases. If these situations led to psychological damage, this would severely weaken the case of the defendant. Of course, there may be occasions where the concerns were legitimately rejected, but there would need to be a strong argument.

Appointing a personal injury solicitor

After putting together as much evidence as possible to support your claim, it is time to approach a personal injury solicitor. A claims representative will review your claim, and where they see a good chance of success, they will likely offer a no-win no-fee arrangement. Consequently, they would take on your claim with the likelihood of reclaiming costs if successful and negotiating a success fee.

The maximum fee allowed under current regulations is 25%, although this may be negotiable. Typically, you can only pursue compensation within three years of receiving the psychological injuries in question. However, if you were unaware of the injuries at the time, this three-year window of opportunity can be extended. Your solicitor will be able to advise you accordingly.

Claiming for damages

When a claim for damages is associated with psychological injuries in the workplace, there are two specific types of damages to consider:-

General damages

General damages relate to compensation for distress, suffering and the impact on your working and personal life. This payment does not relate to physical treatment or loss of earnings; simply the psychological damage experienced due to the negligence.

Special damages

Special damages are best described as a reimbursement of costs incurred and funding for treatment and related expenses going forward. When you start to look at the loss of earnings and future earnings, not to mention extended psychiatric treatment, some compensation claims may be relatively large.

Worker’s rights

When pursuing a claim against your employer, it is essential to realise that you still have an array of worker’s rights which an employer cannot infringe. For example, they are not allowed to sack you as a consequence of your claim. In addition, any detrimental treatment connected with your claim would not be looked on favourably by the courts.

Upon your return to work, your employer is legally obliged to map out a return to work route. These plans tend to include phased returns, reduced hours and very often an agreed change in role. There may even be the option to work from home for some time. In this scenario, everything is negotiable within the specific legal rights of workers and employers.

Conclusion

Many people somehow believe psychological injuries are “less serious” than their physical counterparts. However, in law, psychological injuries and physical injuries are considered on the same level. Consequently, if you can prove negligence by your employer led to psychological injuries, there is every chance you can claim compensation.

We can only imagine the number of legitimate psychological injury claims which have “fallen by the wayside” due to misconceptions and a lack of advice. If in doubt, speak to your personal injury claims solicitor.