Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 44
Mismanagement of disciplinary
process leaves employer liable for
psychiatric injury
by Sarah Gilzean, Partner - www.mfmac.com
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consider the breach of contract claim as it added
nothing to the negligence claim. The claim in
negligence succeeded in part.
When we think about the risks that arise from a
failure to properly manage a disciplinary procedure
involving an employee with a history of mental ill
health, disability discrimination and unfair dismissal
immediately come to mind. However, in Woodhead v
WTTV Ltd & Anor the High Court has upheld a claim
for negligence against an employer, based on the
manner in which disciplinary proceedings were
conducted.
The duty upon which the claimant's case relied was
that an employer will not, in the course of an individual's employment, expose them to an unreasonable
risk of psychiatric injury arising from employment. In
this case, the court concluded that the psychologist's
letter of 4 December put the employer on notice that
the claimant was at risk of psychiatric injury. This then
meant that claims related to events that predated that
letter failed. However, the court held that the failure
to inform the claimant that some of the allegations
were not being pursued, the attempts to continue the
disciplinary procedure while the claimant was on sick
leave and the requirement to attend the OH appointment were a breach of duty. Expert evidence
during the court hearing evidenced psychiatric harm
caused by these breaches.
Background
The claimant was Managing Director of WTTV
Limited. In November 2019 he was given 6 months'
notice of termination of employment by reason of redundancy. On 28 November 2019 he was invited to a
meeting and told that complaints of sexual harassment had been made against him. In what turned into
a lengthy meeting, the claimant was required to immediately respond to the allegations, which related to
events in 2017/18. He was then suspended while further investigations took place. On 2 December the employer decided not to pursue a number of the
allegations but failed to convey this to the claimant - indeed they continued to actively pursue responses
from him to these allegations. They also continued to
pursue the disciplinary proceedings while the
claimant was off sick, despite there being no urgency.
They also attempted to require him to undergo what
was described by the Court as an "entirely pointless"
occupational health appointment.
What can be learnt from this?
Throughout this judgment the court refers to the
need for the employer to take "reasonable care". In
this context that is reasonable care to prevent or
reduce foreseeable harm to the claimant's health.
Employers must find the right balance between the
need of their business to progress a disciplinary process and the needs of the employee, with particular
care being taken where there is known mental ill
health. In many cases employers will be within their
rights to seek independent OH advice on whether an
employee is able to participate in a disciplinary procedure, but it should not be done automatically. Taking some time to assess the circumstances, considering
the risks to the business (including other employees)
of not progressing a matter versus the risk of harm to
the employee being disciplined, will be important.
The question of whether an employee could be disabled, and the need for reasonable adjustments,
should also always be considered.
The claimant had a history of mental ill health and
had been a recovering alcoholic since 1991. He was
signed off work on 3 December 2019 suffering from
an adjustment disorder that "severely affected his ability to function". On 4 December a letter from the
claimant's psychologist confirmed to the employer that
the meeting on 28 November had precipitated a relapse of his depressive illness. The claimant was admitted to hospital on 13 December and remained
there until January 2020. On discharge he continued
to be treated as an outpatient for a further 7 weeks.
He did not return to work prior to the redundancy
taking effect in May 2020.
About the author
Sarah Gilzean, Partner
Sarah is an accredited specialist in discrimination law,
one of only fourteen in Scotland.
High Court action
The claimant brought three claims seeking damages
for psychiatric injury. The first was based on the misuse of private information and was unsuccessful. The
second was based on negligence and the last based on
breach of the implied duty of trust and confidence
(breach of contract). The court found it unnecessary to
EXPERT WITNESS JOURNAL
Sarah is highly regarded in the sector as a discrimination lawyer and is Convener of the Law Society
Equalities Law Reform Committee and a member of
the Scottish Discrimination Law Association.
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OCTOBER/NOVEMBER 2025
