A claim for compensation will need to show that there was something more, a specific psychiatric injury. Medical evidence will need to be obtained to prove the psychiatric illness, and this will need to be from a qualified Psychiatrist. A person's GP's opinion would not be sufficient.

These types of claims are notoriously difficult to win and it may be difficult to find a solicitor to take on a claim under a 'no win – no fee' arrangement.  This is because the solicitor will need to spend a significant amount of time reviewing all the evidence before they can start to advise whether there is any prospect of a successful claim. Many solicitors will therefore ask you to pay for their initial investigation time. 

The sort of evidence that needs to be reviewed will be employment records, such as personnel file and occupational health records as well as medical records from the hospital and GP. Witnesses will need to be spoken to and statements taken. Statements already taken, possibly by the employer, will need to be reviewed.

Evidence in these cases is key. If an employee wishes to base a claim on facts or behaviour such as the working environment or bullying by a senior person, then they will need to provide evidence of that. That could be from a complaint or grievance procedure which has already been made and investigated.

The chronology – dates and the sequence of events – is also very important and will need to be accurate.

If the claim then proceeds and is successful, the legal costs for those investigations will be recoverable from the employer's insurance company on top of the compensation. Once the investigations have been completed the solicitor will assess the merits of the case and will reconsider whether they can take the case forward on a 'no win – no fee' basis. The investigation costs could be money well spent.

There are other ways to proceed which can be considered as alternatives to a claim for compensation in the civil courts.

The employment tribunal can deal with a claim in some situations although there is a shorter time limit (3 months) for bringing a claim in a tribunal, and this would need to be dealt with by an Employment Law specialist rather than a Personal Injury Lawyer. It is not possible to recover legal costs for a tribunal claim. Sometimes lawyers from both specialisms will share their expertise in dealing with a claim. It is also possible to claim under the Protection from Harassment Act 1997 or the anti-discrimination legislation.

To succeed in a claim for compensation for psychiatric injury there are a number of hurdles to be successfully negotiated otherwise the claim will fail.

An employer has a duty to take reasonable steps to prevent an employee suffering from a psychiatric illness in the same way as any physical injury. However, in the same way as a physical injury, a psychiatric illness – as opposed to 'normal stress' – needs to be foreseeable. So, it would need to be obvious that the situation that the particular employee is put in is likely to result in a psychiatric illness. Usually there will be some warning to the employer, such as complaints by the employee about feeling stressed, or time off sick due to stress. Even so, this may not be enough to put the employer on notice that they might suffer a psychiatric illness rather than the 'normal stress' of work.

Many companies offer a confidential advice and counselling service to its staff and that can show that they have acted reasonably.

An employer is entitled to take what the employee says at face value. Therefore if the employee insists that they are fine and coping, the employer is entitled to rely on that. However, if that person has already shown that they are not coping, perhaps by sick leave due to stress, then the employer will be expected to take that into consideration and not simply return the employee to the exact same job and conditions that had caused the stress in the first place without a proper review of the problems.

The employer has to take steps which are reasonable in the individual circumstances. Factors taken into account when considering what is reasonable for an employer to do will be the size and scope of the company and the resources available to it. More will be expected from a large multi-national company than from a small business struggling to stay afloat in the current economic climate.

Sometimes the only option open to a company whose employee is unable to cope with the stress of a job is to dismiss or demote that person. However, they are not required to go that far.

Most people have stresses in their lives coming from all sorts of directions. They may have family or other health problems so that they are already vulnerable to stress. In that case if a claim is successful, any award of compensation could be reduced to reflect the likelihood that work was not the only cause of the psychiatric illness, or that the employee may have suffered the illness for other reasons even if they had not been stressed at work.

I think that these points show how complicated these claims can be. It is vital to speak to a solicitor as soon as possible after you have exhausted the grievance and complaints procedures at work, and to make sure that you take advice from a specialist.




For further information, or should you wish to make a claim for psychiatric injury, please contact Julia Prior, a Senior Solicitor in our Personal Injury team, on 02380857316 or at julia.prior@bllaw.co.uk. Alternatively, please fill in our Contact form at we will call you back.