Learn what the High Court says about employer's duty to protect 'mental integrity'
The High Court has recently ruled over a case of an employee who sued an employer for a psychiatric injury allegedly caused by her workplace.
The case pins down an employer’s duty of care to take reasonable steps to avoid excessive stress and trauma that may cause “serious harm” to the “mental integrity” of its employees. Learn how HR can minimise the risks of psychiatric harm and specific policy changes that an employer could implement to prevent it.
The employee was formerly employed by the Victorian Office of Public Prosecutions (OPP), working in the specialist sexual offences unit (SSOU). She was constantly exposed to material of a “graphic sexual nature,” including child pornography, and said that “there was not a day” that she wasn’t exposed to graphic images of rapes or assaults on children.
She had to watch explicit child pornography repeatedly to shed light on patterns of behaviour, fetishes or the age group that offenders were targeting. She added the work exposed her “to cumulative trauma and the risk of mental harm, including post-traumatic stress disorder (PTSD).”
The employee said that while employed in the OPP, she suffered chronic PTSD and major depressive disorder, so in October 2016, she sued the State of Victoria for damages based on negligence, breach of contract and breach of statutory duty.
She said that her work caused the injuries due to the “ongoing, repeated exposure to a high volume of sexual offence cases, which included the commission of serious offences against children and other cases of an abhorrent nature.”
The employer denied liability, but the trial judge upheld the employee’s claim and rejected the state’s defence, finding that “if action had been taken to reduce [the employee’s] exposure to vicarious trauma, she would not have suffered PTSD of the same severity and chronicity.”
But the Court of Appeals (CA) overturned the trial judge’s decision based on the employee’s behaviour that “seemed to contradict her claims.” It noted an instance where “she had reacted strongly against the suggestion that she was not then coping with the workload at SSOU.”
The CA also cited an email written by the employee in which she said, “I want to make it clear that I am passionate about continuing my work in the sexual offences unit, and I don’t want to leave the unit.” She had sought a promotion and eventually signed a contract for a permanent position.
The employee then submitted before the High Court that the CA was wrong to reverse the trial judge’s decision, saying that the CA’s ruling failed to consider the employer’s duty of care which meant that it should have taken “positive steps to reduce exposure triggers to PTSD.”
The High Court’s decision
The High Court said that if the employer “had taken the reasonable steps of making a welfare enquiry” and offered the employee a referral for occupational screening with a clinician, then her condition would have revealed that she had symptoms of PTSD.
“Her psychiatric injury would not have been exacerbated,” the court said.
Thus, the High Court stressed the importance of an employer’s role in minimising or preventing work-related psychiatric injury.
An employer’s duty to protect ‘mental integrity’ is imposed by law
The High Court explained that the employer’s duty to ensure the “protection of mental integrity from the unreasonable infliction of serious harm” is imposed by law. This duty is “not dependent upon any undertaking by the employer.”
“In this sense, it is no different from the employer’s duty to protect an employee’s physical integrity from the unreasonable infliction of harm,”
“It has long been recognised that psychiatric injury ‘is just as really damage to the sufferer as a broken limb ... [and] equally ascertainable by the physician’,” it said. The High Court’s judgment was delivered on 13 April.
What steps could HR make to avoid a psychiatric injury in the workplace?
As discussed by the trial court in this case, HRD has compiled a few potential policy strategies for employers to ensure that their duty to “protect the mental integrity” of employees from “serious harm” is fulfilled:
Make sure your OH&S framework is adequate
An employer should include a sufficient rigorous training program for staff and management about the cumulative impacts of work-related mental health risks.
Provide training to spot ‘red flags’
Provide training to assist management in identifying ‘red flags’ or training on how and when managers should respond to signs of concern. This includes conducting welfare checks or referring an employee for optional work-related screening.
Occupational screening on-standby
If an employee is subject to a welfare inquiry, an offer of occupational screening should follow to assess if an employee could still fulfill the position. The employer should also have a system in place to respond to the outcome of any such screening.
