The recent case of Woodhead v WTTV Limited and anor reminds employers of the importance of handling disciplinary processes with sensitivity, especially when mental health issues are involved. Employers must act transparently, avoid unnecessary urgency, and adapt their approach once informed of an employee’s psychiatric vulnerabilities.

What happened in this case?

The Claimant was employed by the Respondent television company as its Managing Director.  In November 2019, he was selected for redundancy and his employment was due to terminate in May 2020.  On 28 November 2019, the Claimant was asked, without notice, to attend a “fact finding” meeting with the Director of Fair Employment Practices and the Director of Human Resources of NBC Universal International Ltd (NBC), being the Respondent’s majority shareholder.

At the meeting, the Claimant was informed that a freelance colleague, known as “NPQ”, had made complaints of sexual harassment against him.  He was not shown NPQ’s written complaint during the lengthy meeting.  Instead, the complaints were explained to him, and he was asked for his responses.  After the meeting, the Claimant was suspended pending further investigation. 

At the time of suspension, the Claimant suffered from long-standing psychiatric conditions.  He was a recovering alcoholic since 1991 and had been in therapy since 1992.  He suffered from compulsive sexual behaviour disorder, anxiety and depression and he had a history of self-harm.  After the meeting, the Claimant’s mental health rapidly declined.  He was signed off work with depression and anxiety from 3 December 2019 and diagnosed with “adjustment disorder” on 11 December 2019.  He was admitted to hospital for in-patient treatment on 13 December 2019.  He was discharged in January 2020 but treated for a further seven weeks as an out-patient and remained signed off sick until 8 May 2020, when his employment terminated by reason of redundancy.  The disciplinary decision was sent to him in September 2020.

The Claimant brought a personal injury claim (alongside other claims) in the High Court, arguing that the Respondent’s conduct of the investigatory and disciplinary process between 28 November 2019 and the end of September 2020 breached their duty of care not to expose him to a risk of psychiatric injury.

What was decided?

To succeed, the Claimant needed to show that:

• it was reasonably foreseeable that he could suffer an injury to his health attributable to the conduct of the investigatory and disciplinary process;
• the Respondent breached its duty of care to him by failing to take reasonable care to reduce or prevent the harm; and
• that breach of duty caused or materially contributed to the harm suffered.

Was the risk of an injury reasonably foreseeable?

The Judge determined that, as of 4 December 2019, it was reasonably foreseeable that the Claimant could suffer harm to his health from stress due to the process.  It was on this date that the Respondent received a letter from the Claimant’s psychologist stating that the Claimant was a recovering alcoholic and that this traumatic episode had destabilised him, causing a relapse of depression.  The letter said it was essential that treatment was effective and ongoing before the Claimant was subjected to further stress.  The Judge concluded that upon receipt of this letter, the Respondent was on notice that the Claimant suffered from long-term and serious mental illness and that there was a risk to his health by continuing with the disciplinary process.

If yes, did the Respondent breach its duty of care to the Claimant?

The Judge identified four significant failings in the Respondent’s conduct of the process, three of which were found to amount to breaches of the duty of care.

Failing 1 – The conduct of the investigatory meeting

First, the fact-finding meeting of 28 November 2019 was handled badly.  The Claimant was called into a lengthy meeting without notice.  He was not given a written copy or summary of the complaints.  He was not suspended pending an investigatory meeting (which would have been in line with NBC’s Disciplinary Policy).  Instead, the meeting was conducted as an investigatory meeting.  The Claimant clearly found it intensely distressing – he later said he experienced a “disassociative episode” in the meeting and was left “reeling”. 

The Judge observed that there was no reason why matters had to be dealt with in this way.  There was nothing that required urgency or a response on that day rather than a few days later.  It was not the approach of an employer acting reasonably and it had a particularly severe impact on the Claimant’s mental health.  However, this could not amount to a breach of the duty of care because it took place before the date on which the risk of harm became reasonably foreseeable (i.e. 4 December 2019).

Failing 2 – The conduct immediately following the meeting until 11 December 2019, when the process was suspended

On 29 November 2019, the Claimant’s solicitor wrote to the Respondent to ask for all communications to go to him and for the investigatory meeting to be rescheduled, this time with written notice of the questions.  He also said that the Claimant was suffering from stress, taking medical advice and may be disabled.  On 2 December 2019, the Respondent refused to reschedule the investigatory meeting but gave the Claimant until 4 December 2019 to comment on the investigatory report (a copy of which was sent to him later that day).  When the investigatory report was sent to the Claimant,the “findings” column was left blank – suggesting that all complaints against him were still live.  In fact, by the time the report was sent to the Claimant, the Respondent already knew that some of the complaints would not be taken forward.  It later emerged that this was not an inadvertent error.  Rather, the column showing the findings (including the findings favourable to the Claimant) had been deliberately removed.

The Judge criticised the Respondent’s imposition of a short deadline for a response; there was no sufficient reason for it and no cause for urgency.  Although the Respondent’s tactics were worthy of criticism, ultimately, the Judge held that it was not a breach of the duty of care to have continued with the process until 11 December 2019, after which the process was suspended in light of the Claimant’s hospitalisation.  However, the decision not to tell the Claimant that some of the complaints against him had been dropped was a breach of duty.  It gave a false impression of the extent of the matters that he had to respond to.  It would have been reasonable and appropriate to make clear that only part of the complaints would be going forward.

Failing 3 – Attempting to revive the disciplinary process when the Claimant was still on sick leave in February 2020

The Claimant’s sick note at the relevant time stated he was suffering from PTSD, anxiety and acute depression with suicidal ideation and receiving ongoing therapies/psychiatric treatment.  Nevertheless, the Respondent sought to revive the disciplinary process on 12 February 2020. The Claimant’s solicitor wrote on 13 February 2020 to remind the Respondent that the Claimant was still signed off and not able to engage in the process.  The Respondent continued to chase a response.

The Judge found that the Respondent’s approach was neither necessary nor reasonable and was a breach of duty.  It ought to have been clear that he was not fit to participate in the process and if there had been any doubt, the Respondent should have sought clarification from his doctor or referred him to Occupational Health.  The Judge discounted the Respondent’s suggestion that it needed to resume the process due to NPQ’s ongoing distress.  This was not borne out by evidence.  Emails from the time showed her to be lucid and clear-headed and preoccupied with seeking financial compensation.  There was no evidence of distress. 

Failing 4 – Pursuing an Occupational Health referral between 16 April 2020 and 8 May 2020

During this period, the Claimant was certified as sick.  Covid restrictions meant that any Occupational Health professional would not have been able to meet with the Claimant in person.  At best, it would have been a video call, which the Judge said was “highly unlikely” to afford any information sufficient to assess the Claimant’s state of health.  Yet the Respondent’s solicitor continued to pursue the point, even when asked to refer to the Claimant’s doctor instead.  No consideration was given to the Claimant’s circumstances, the fact of the lockdown restrictions or the option of getting information from the doctors treating the Claimant.

The Judge remarked the Respondent’s solicitor was pursuing an “entirely pointless” referral and appeared to be more concerned with form over function.  This was not a reasonable course of action and was another breach of duty.

If yes, did the breaches cause the Claimant’s injury?

Two of the three breaches were held not to have caused injury.

First, the attempts to revive the disciplinary process when the Claimant was still on sick leave in February 2020 did not materially add to the injury the Claimant suffered either by exacerbating or prolonging it. The issue had been dealt with by the Claimant’s solicitor and any distress that the Claimant experienced was not long lasting.

Second, the pursuit of an Occupational Health referral between 16 April 2020 and 8 May 2020 did not materially add to the Claimant’s injury.  It had been dealt with by solicitors and the requests were not communicated to the Claimant at the time.  He was only told when the issue had been dropped. There was no evidence that it had a significant impact on the Claimant.

However, the decision to mislead the Claimant about how much of the complaint against him remained live did cause injury.  The initial shock and breakdown he suffered was worsened by the perception of not being heard or understood by the Respondent.  This contributed to the existence and duration of the psychiatric condition.  The failure to inform the Claimant that the scope of the disciplinary proceedings against him had been narrowed materially contributed to his psychiatric injury.

What does this mean for employers?

Although the Claimant’s victory was limited to one point, employers should pay close attention to the Judge’s scathing comments about the employer’s conduct.  Importantly, this was a personal injury claim in the High Court, but the employer’s serious failings may have also provided a sufficient basis to claim constructive unfair dismissal and/or disability discrimination in the Employment Tribunal. 

• Remember your duty of care to employees accused of sexual harassment. Employers often feel under pressure to investigate allegations of sexual harassment promptly and robustly, however, this case reminds us that employers continue to owe a duty of care to the accused as well as to the complainant.  Investigatory and disciplinary processes should be approached with compassion, transparency, and fairness, particularly where an employee is known to be vulnerable. 

• Always follow a fair process. Sudden and lengthy investigatory meetings without prior notice or disclosure of allegations can be highly distressing. Similar issues arose in the case of Weir v Citigroup Global Markets Ltd, which drew criticism from the Employment Tribunal. Employers must follow their owndisciplinary policies, ensuring procedures are fair, consistent, and not unnecessarily urgent or onerous.

• Make adjustments to processes as needed. Once on notice of an employee’s mental health condition, takereasonable steps to prevent further harm.  Pursuing disciplinary processes despite clear medical advice that an employee is not fit to participate can constitute a breach of the duty of care.

• Transparency is critical. Failing to communicate that certain complaints had been dropped was found to be misleading and harmful. Misleading an employee in this way is also likely to amount to a serious breach of the duty of trust and confidence, meaning an employee could constructively dismiss themselves.

• Use Occupational Health appropriately. Occupational Health referrals should be meaningful and appropriate to the context.  If better information can be obtained from the employee’s own doctors, this route should be pursued instead. 

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.