On 6 November 2019, the Western High Court ruled on the question whether an employer was liable to pay compensation for an unskilled employee’s mental illness as a consequence of working at a school with pupils with problem behaviour. The High Court ruled in favour of the employer taking into account that the employee had not said no to the work, on the contrary, he wanted more time with the pupils.

The High Court’s judgment reflects that it takes quite a lot before an employer is subject to liability for mental work-related injuries.

YOUNG AND UNSKILLED RELIEF ASSISTANT

A relief assistant was employed at a school for a two-year period where he joined a team in connection with two pupils behaving problematically. He went on long-term sick leave and was diagnosed with a mental illness. He then claimed that he was subject to violence and threats from the pupils during his employment and letdown from the management and his colleagues which led to his mental illness.

The mental injury was recognised as an industrial disease under the Industrial Injury Insurance Act according to which there is no requirement for the employer’s liability. On the contrary, the employer must act in a way giving rise to liability if the employee wishes to direct a claim for compensation (differential claim) against the employer, and all other conditions for compensation must be met.

The employee’s union commenced proceedings against the employer claiming compensation for the loss (differential claim) that the employee had suffered due to the mental illness, and the union claimed that the working conditions gave rise to liability for the employer.

A HEALTHY AND SECURE WORKING ENVIRONMENT

According to the rules of the Working Environment Act, the employer must ensure a healthy and secure physical and mental working environment. This includes an obligation to ensure that the work is planned, arranged and performed in such a way that it is safe and healthy.

One of the central questions was therefore whether the school’s management had done enough to prepare the young, unskilled relief assistant for the work with the children having special needs, and whether the school had performed the required supervision.

The district court and the high court attached importance to the fact that the employee’s team had had special focus on preparing him for the work with these pupils. He received neighbour training from experienced and trained relief assistants, and he had participated in supervision with the school’s psychologist. On the basis of the above, the High Court found that the school’s management had done enough to give the employee the training and instruction.

WRITTEN VIOLENCE POLICY

Another central question was whether the school’s management had done enough to prevent and handle episodes with violence and treats against the staff. The district court took into account in its grounds - which were affirmed by the High Court - that the school had a written violence policy and fixed procedures as to when employees were to report violent episodes. Notwithstanding that the employee disputed that he had been made aware of the violence policy, the district court found that the policy applied at the school and constituted a relevant and sufficient measure to prevent and handle violence.

SHOULD THE EMPLOYER HAVE KNOWN ABOUT THE MENTAL STRAIN?

According to case law, it is decisive whether the employer knew or should have known that the employee was subject to a mental strain when performing his work.

The High Court found that the relief assistant had not said during his employment that the work was a mental strain. Also, he had not asked the management to provide him with tools to handle his work, and he had not expressed any dissatisfaction with the working environment. On the contrary, he had asked to become more involved with the allegedly violent pupil by way of extra hours and contact on weekends. The High Court also found that there was no reason to ascertain that the relief assistant had been subject to violence and treats to the extent claimed.

Based on the above, the High Court ruled in favour of the employer and affirmed the district court’s judgment.

WHAT CAN WE CONCLUDE?

In line with case law concerning liability for mental work-related injuries, it was of decisive importance that the relief assistant was willing to take on more work with the pupil in question, and that he never said that he had been subject to the alleged mental strain by way of violence and treats and letdown from the management. And this regardless of the fact that the relief assistant was employed without any relevant education to work with pupils with special needs.

The employer therefore had no reason to assume that the working conditions unhealthy for him. If the situation had been different, and the employee had said that the work made him mentally ill, it cannot be ruled out that the employer would have been subject to liability.

The judgment indicates that quite high requirements are made for the connection between a mental injury and the work performed, and it is another example of how a recognised work-related injury within the industrial injury system does not imply that the employer is subject to liability.

Attorney Maria Schmiegelow represented the employer.

contacts

Maria Schmiegelow

Attorney