Personal injury: Depression was not a reasonably foreseeable consequence of summary withdrawal from office
Published 17 December 2014
In this case the Court of Appeal considered whether an employee who was summarily withdrawn from his post as High Commissioner was entitled to damages for depression.
In January 2007 the Claimant, Mr Yapp, was appointed British High Commissioner in Belize by the Foreign and Commonwealth Office (FCO). In June 2008, allegations were made to the FCO "on a confidential basis" about Mr Yapp's sexual misconduct at public functions and his bullying and harassment of his staff. In light of its concerns that Mr Yapp's misconduct was damaging the UK's relationship with Belize, the FCO withdrew Mr Yapp from his post on "operational grounds" with immediate effect and suspended him pending an investigation into the allegations. Mr Yapp was informed of this decision at the suspension meeting, but received no prior notice about the allegations against him. The FCO explained to Mr Yapp that he was being withdrawn because the allegations made his position "operationally untenable". He was offered counselling and told that if he was exonerated by the investigation, the FCO would do its best to find him another posting.
A former ambassador was appointed to carry out a fact-finding exercise and, subsequently, to conduct a disciplinary hearing. The hearing took place in August 2008 and concluded that the allegations of bullying were substantiated, but that the allegations of sexual misconduct were unfounded. He was then given a final written warning lasting 12 months. He appealed unsuccessfully against the decision. Although his suspension was lifted he had developed depression and went on sick leave. He also had to undergo heart surgery, but as a result of recurrent depression he did not take up another post before his retirement in January 2011.
In May 2011, Mr Yapp began proceedings in the High Court against the FCO for breach of contract and breach of its common law duty of care in relation to his withdrawal from office and the FCO's unfair conduct of the disciplinary procedure. He claimed that the resulting stress had caused his depressive illness. The High Court upheld the majority of Mr Yapp's claims. It held that the FCO had acted in breach of contract, and in breach of its duty of care by withdrawing Mr Yapp from his post without affording him fair treatment. In particular the FCO had not carried out a preliminary investigation, which would have shown that withdrawing Mr Yapp from the post was an over-reaction, nor allowed him the opportunity to respond to the case against him. Mr Yapp's withdrawal from office caused his depressive illness and the loss he had suffered as a result was not too remote to be recoverable. The FCO appealed against the decision, arguing it was not in breach of contract or of its common law duties in withdrawing Mr Yapp from his post. However, if it was in breach, the High Court was wrong to award damages in respect of Mr Yapp's depressive illness because his illness was not foreseeable so damages for it should not be recoverable.
The Court of Appeal upheld the High Court's decision that the FCO had acted in breach of contract. The Court of Appeal agreed that it was irrelevant that Mr Yapp was subsequently treated fairly in the disciplinary process, and given access to counselling which he took up. The Court of Appeal did not find it unfair that the ambassador who investigated the allegations also decided the disciplinary sanction. The Court of Appeal went on to overturn the decision that Mr Yapp was entitled to damages, holding that in the absence of any sign of Mr Yapp having a particular vulnerability, the FCO should not have forseen that he might develop a psychiatric illness as a result of the withdrawal from his post.
What this means for employers
The Court of Appeal's findings, that different people should carry out an investigation and disciplinary hearing, is not a requirement of fairness in every case, but a matter of good practice, and confirms that employers, even large ones, do have flexibility when carrying out disciplinary procedures. Indeed, in some cases, like this one, the investigator's knowledge of the detail, and experience of interviewing a large number of witnesses will give them an important advantage which will justify them taking the decision maker role.
This case is also a helpful reminder that the courts will not usually be prepared to find that psychiatric injury is a foreseeable consequence of a claimant's unfair treatment unless there is evidence of some pre-existing vulnerability. However, each case depends on its own facts, and the Court of Appeal recognised that an employer's conduct in a particular case might be so devastating that it is foreseeable that even a person of ordinary robustness might develop a depressive illness as a result.