Labour & European Law Review Weekly Issue 402 14 January 2015
When making a claim for damages for psychiatric injury, the Court of Appeal has held in the case of Yapp v Foreign and Commonwealth Office (FCO) that unless claimants have shown signs of “special vulnerability”, employers cannot be expected to foresee that they might develop a psychiatric illness as a result of a decision to suspend them.
Less than a year after being appointed the British High Commissioner in Belize, Mr Yapp was told in April 2008 that a number of informal allegations of bullying and harassment had been made about him. A few months later, a former Belizean government minister alleged that Mr Yapp had sexually harassed the wives of Belizean officials at private events.
In June 2008 he was told that he was being withdrawn from post with immediate effect and suspended pending a disciplinary investigation. Following a disciplinary hearing in August, Mr Yapp was given a final written warning for bullying members of staff (but cleared of the allegations of sexual misconduct). His suspension was lifted but due to ill health (which included a depressive illness) he was not given any other appointment in the FCO until his retirement in January 2011.
In May 2011 Mr Yapp commenced proceedings for damages against the FCO complaining that his depressive illness was caused by being withdrawn from his post and the way in which the disciplinary process was conducted, as well as its outcome.
High Court decision
The High Court judge held that withdrawing Mr Yapp from his post was both a breach of contract and a breach of the duty of care which the FCO owed him at common law, but dismissed the claims relating to the disciplinary process.
He also held that Mr Yapp was entitled to recover for the depressive illness which he had developed, not least because if the FCO had carried out a preliminary investigation it would soon have realised that the allegations of sexual misconduct against him were full of inconsistencies.
Decision of Court of Appeal
The Court of Appeal agreed with the trial judge that the FCO should have made further inquiries, including putting the allegations to Mr Yapp, before it suspended him. That did not mean it had to carry out “the whole panoply of a fact-finding investigation”, just that it should have made "some preliminary investigation" and exercised "some critical judgment”.
It also held that the trial judge was entitled to accept the view expressed in the medical report that several factors had a cumulative impact in causing the depression suffered by Mr Yapp. For instance, his sense of injustice and a perceived failure by his employers to follow due process, as well as his suspension.
However, the Court concluded that there was nothing about the circumstances of this case that were “sufficiently egregious” for the FCO to be able to foresee that withdrawing Mr Yapp from his post would result in a psychiatric injury. In the Court’s view, it would be “exceptional” for an an apparently robust employee, with no history of any psychiatric ill-health, to develop a depressive illness as a result even of a very serious setback at work.
Although his withdrawal was a major setback to his career and was bound to cause distress and anger, it was not tantamount to dismissal. Nor was it a disciplinary sanction. Mr Yapp was withdrawn because the allegations made his position operationally untenable. In any event, he had been told by a manager that if he was exonerated by the investigation she would do her best to find him another posting. Given those circumstances, the FCO could not have foreseen, in the absence of any sign of special vulnerability, that Mr Yapp might develop a psychiatric illness as a result of its decision to withdraw him from his post.