Respon­sibi­lity for mental work-related injuries

Despite much focus on the mental working environment for the last 10-15 years, case law concerning the employer’s responsibility for mental work-related injuries is still relatively limited.

Under the statutory industrial injury system mental work-related injuries are to some extent recognised due to accidents and industrial diseases, and if an injury is recognised under the industrial injury system, the injured employee may receive damages for insurance items under the Industrial Injury Insurance Act.

Claims for damages that go beyond the Industrial Injury Insurance Act may be made only against a liable employer, and case law is very limited when it comes to the employer’s liability in damages for mental work-related injuries.

Roughly speaking, case law may be divided into the following:

• Has a serious event/experience taken place?
• Is it stress, too heavy workloads, etc.?
• Is it bullying, harassment and/or sexual harassment?

Serious events/experiences

There is a Supreme Court judgment from 2012 where a municipality was found liable in damages as an employee was briefly subject to a serious event/experience. In connection with a staff weekend, the employee was exposed to very irresponsible conduct as the employee was severely criticised and exposed to what she experienced as a public dismissal.

In this case, the Supreme Court fund that the municipality was liable in damages for the “irresponsible conduct during the staff weekend”, which resulted in a significant increase of the risk of a mental injury.

Apart from this judgment, there is no printed case law on employers’ liability in damages in case of serious events/experiences which have led to a mental injury.

It is worth mentioning that if there has been a threatening situation or the like which has resulted in criminal proceedings against the threatening party, the affected employee may make his claim against the threatening party directly, and there will therefore (often) not be additional claims for damages against the employer.

Stress, too heavy workloads, etc.

A number of judgments exist in which the theme of the legal assessment has been whether the employer is liable in damages if an employee develops a mental illness due to e.g. stress, too heavy workloads, etc.

In two judgments from 2008 and 2017, the Supreme Court found in favour of the employers in relation to liability in damages for the employees’ development of a mental illness due to stressful working conditions/too heavy workloads.

In general, the Supreme Court found in both judgments that it is decisive when assessing the employer’s liability in damages that the employee has sufficiently made the employer aware that the employee was subject to a work strain which exceeded what the employee was able to cope with, and that the employer therefore had to take special measures to help the employee.

Case law is therefore very restrictive when it comes to imposing liability on the employer for an employee’s mental illness due to stress, heavy workloads, numerous deadlines, burnout, etc.

Important moments under case law are:

• Whether the employer has knowledge of the burden imposed by the performance of the work, has knowledge of the employee or the work situation or information from the employee or a third party, e.g. in connection with supervision by the Working Environment Service.
• Has the employer reacted adequately, including with "official means" and at an appropriate pace after having received sufficient knowledge.

Bullying, harassment and/or sexual harassment

Mental work-related injuries may also arise in connection with bullying, harassment and/or sexual harassment. When focusing on bullying, harassment and/or sexual harassment, it is important that the bullying or harassment is based on gender, ethnicity, religion, age, disability - i.e. the criteria of protection of the Equal Treatment Act and the Anti-Discrimination Act, which may trigger the offended party’s claim for compensation against the employer.

This also applies to sexual harassment under the Equal Treatment Act or offences based on sexuality under the Anti-Discrimination Act.

If we instead look at the liability for damages, which is different from the claim for compensation which the offended party may claim under the Anti-Discrimination Act, present case law may be divided into the following:

• Situations where the employer or a member of the management defined as the employer performs the bullying, harassment and/or sexual harassment.
• Situations where the bullying, harassment and/or sexual harassment are performed by others, and where the employer should have prevented it.

In the situations where the bullying, harassment and/or sexual harassment are performed by the employer or a member of the management defined as the employer which has resulted in a mental injury, the employer will be liable in damages.

In the situations where the bullying, harassment and/or sexual harassment are performed by other persons than the employer or a person who cannot be identified with the employer, the question is then whether the employer has taken sufficient measures to ensure a harassment-free environment. In the above situations, the courts are a bit more reluctant as the employer will only be liable in damages if the employer has obtained sufficient knowledge about the bullying, harassment and/or sexual harassment, and the employer has not acted adequately within a reasonable period of time to protect the offended employee.

In relation to bullying, harassment and/or sexual harassment, we strongly recommend that you have a public policy specifying who the offended employee may contact and how a complaint is handled. You thereby ensure that you may react on knowledge of an offence.