D. Protection for psychiatric injury
The duty can extend to mental health as well as physical safety. An employer may be liable where work-related stress creates a foreseeable risk of psychiatric illness and the employer fails to take reasonable steps in response.
However, the law is cautious in this area. It generally asks whether psychiatric injury was reasonably foreseeable by a reasonable and prudent employer, and employers are usually entitled to assume that an employee can cope with the normal pressures of the job unless there are clear signs of a particular problem, vulnerability, or harmful level of stress.
A duty to act is more likely to arise where the warning signs are plain enough that a reasonable employer should realise something must be done. Factors relevant to foreseeability include whether the workload was abnormal and emotionally demanding, whether comparable employees were showing signs of harmful stress, and whether the employee had complained, shown signs of strain, or had repeated stress-related absences.
The employer must act as a “reasonable and prudent employer” would, taking positive steps to protect the employee’s well-being. Providing a confidential counselling or an occupational health service often discharges the employer's duty. However, if the stress is caused by a systemic issue like a totally unreasonable workload, the employer must take urgent action to reduce that load; counselling alone will not be enough. If an employee returns from stress-related leave, the employer must take the initiative to investigate the employee’s fitness and monitor his condition, rather than simply “brushing the employee off”.
The duty is not limitless. Negligence law does not generally extend to every upsetting workplace event, and not all anxiety or distress amounts to actionable damage. An employer cannot be expected to foresee psychological vulnerabilities of which they have no knowledge and which are not apparent. Ordinary workplace decisions (such as performance management or disciplinary processes) do not automatically trigger liability merely because they cause stress.
