Val Pitt

Mr Frame raised an action based upon alleged failures on the part of his employer, Abellio Scotrail Limited, to establish and follow protocols, procedure and systems relating to grievances raised, which, it was claimed, had caused him to suffer a psychological injury.

Mr Frame’s initial grievance had been raised in November 2017 and, although various action points were proposed at a meeting with a manager, the grievance was not resolved. In December 2018, Mr Frame was signed off sick due to stress at work. His employers then took steps to have regular welfare meetings and he was referred to occupational health. In February 2019, Mr Frame informed HR that he did not wish his grievance to be referred to again until he was fit and well. Despite this, in March and May 2019, a manager wrote to Mr Frame twice stating his grievance was closed, which the pursuer alleged caused him upset.

The court noted that the legal test was whether or not the employer had fallen below the standard expected of a reasonable and prudent employer, taking positive steps for the safety of workers, in the light of what it knew or ought to have known. In applying the test, the court considered legal principles and guidance set out in Barber v Somerset County Council [2004], including the “threshold question” of whether the kind of harm suffered was reasonably foreseeable.

The court was critical of the actions of the individual who dealt with the initial grievance meeting, but noted, at that stage, Mr Frame had not exhibited any signs of mental disorder or at least hadn’t drawn them to his employer’s attention. Not until he was absent from work with stress in December 2018 did the court consider there was a foreseeable risk of injury to Mr Frame by his employers failing to handle his grievance correctly. Against that background, the court accepted the letters sent to Mr Frame in March and May 2019 constituted a breach of the employers’ duty of care.

However, to be awarded damages, a party must prove that, but for the breach of duty, the harm would not have occurred, in addition to establishing a breach of duty of care. In circumstances of multiple sources of harm impossible to differentiate between, it must be proven on a balance of probabilities that the breach of duty materially contributed to the harm or materially increased the risk of injury.

The court found there were multiple factors causing stress, anxiety and upset for Mr Frame and noted he was signed off work with stress prior to the breach of duty in 2019 which had given rise to a foreseeable risk of injury. The consultant clinical psychologist giving evidence had not been given details of all relevant factors said to have been causing the stress and anxiety. The court found the witness was therefore unable to give reliable evidence to permit a finding that the breach of duty caused or materially contributed to Mr Frame’s developing psychological injury. No damages were awarded.

The case highlights the importance of providing full information to a skilled witness before leading their evidence to ensure their opinion can be relied upon.

Val Pitt is a partner at Horwich Farrelly. This article first appeared in The Scotsman.