Claims Defensibility

In this fourth article in our series for Mental Health Awareness Week, we focus on how to ensure you are in the best position to defend a stress-related claim, should one be pursued.

Claims arising out of stress at work can take different forms. It might be presented in the Employment Tribunal as a discrimination or constructive unfair dismissal claim, or in the court as a claim for negligence or breach of contract. Claims for negligence often rely on breach of the Management of Health and Safety at Work Regulations 1999, which require written risk assessments and health surveillance where any significant risk to mental health is identified.

Our previous articles provided guidance on assessing the risks posed by excessive stress in the workplace and preparing a plan for addressing this, including advising employees on how to raise issues and signposting the available support. Our third article focused on what to do if an individual employee is struggling with mental health problems, inchuding preparing an individual plan with them to address their specific issues and seeking medical guidance, if appropriate, with a process for monitoring and review. All of this should put an organisation in a good position to prevent claims and defend any claim that might be received.

But what else do you need to consider for claims defensibility? Supportive documentation is essential. If a matter gets to court, the focus is on proving what has been done. Any changes made and support given should be recorded. Risk assessments can take many forms so all discussions with the employee should be set out in writing. Avoid expressing any opinions and stick to the facts.

Do bear in mind that every document is potentially disclosable. Claims can be won and lost based on how a manager expresses themselves in an email about a member of staff. Internal emails between managers and HR or even with external HR advisors are likely to be disclosable.

Document retention is also key. While it is important for data protection compliance not to keep data longer than is necessary, it is reasonable to retain documents to allow an organisation to investigate and potentially defend a claim (even if a formal claim hasn’t been received, but it is anticipated that one might be pursued).

Documents are not simply paper records. In this age of digital working, it will include electronic information such as emails, texts, WhatsApp messages, anything stored on PCs, laptops, handheld devices and mobile phones. It will also include anything on a company’s system and databases. So make sure that it is all retained (and passwords obtained for devices and protected documents). This is particularly important when there is a change in personnel at which point there is a tendency to wipe laptops and mobile phones.

Also consider opportunities to prevent or ‘buy-off’ a potential claim at an early stage. Litigation is costly and time-consuming, so an early resolution is beneficial for all. If a member of staff is leaving, think about whether any potential claims could be compromised as part of any exit package. Settlement agreements can be worded to include most types of claims. Or, if an Employment Tribunal is pursued, could resolution of that include personal injury?

It is important for organisations, brokers and insurers to work together even if it is not clear whether the claim pursued will be covered by a policy. For example, if an Employment Tribunal claim is brought which includes any stress-related issues, organisations should consider whether Employers’ Liability insurers need to be notified and insurers need to consider whether they want to be actively involved. Early communication and collaboration means that insurers get the information they need to defend or resolve the claim and the business gets advice and support at the earliest stage.