In the pursuit of the physical safety of employees, employers have fire wardens, first aid officers, regular testing of electrical equipment, and trusty “wet floor” signs (only if there’s a wet floor otherwise it forms a hazard). But are employers as diligent in their mitigation of risks when it comes to the psychosocial wellbeing of employees?
Psychosocial risks in the workplace can arise due to bullying, harassment, assault, extensive workloads, and high-pressure environments.
Awareness of psychosocial risks in 2022 is crucial, not least of all due to the ever-evolving workplace and workday, the growing expectations and accountability demanded by society, and the increasing number of psychological injuries in the workplace.
So, what does the law say?
An employer breaches their duty of care if an employee’s workplace injury (including a psychosocial injury) is reasonably foreseeable by the employer. Generally, an employer will be liable if they knew, or ought to have known, that the injured employee was at risk of the harm leading to the injury and did not take steps to mitigate that risk.
Employers can be vicariously liable for negligent acts or omissions of its employees, including where an employee bullies or harasses, facilitating a reasonably foreseeable and recognisable psychological injury. This principle has been tested in recent cases.
Whilst in the case of Hingst v Construction Engineering, where Mr Hingst was disappointed to learn that it was not reasonably foreseeable that a colleague farting on him would cause him psychological distress, other cases such as Keegan v Sussan Corporation (Aust) Pty Ltd, demonstrate that psychological injuries are reasonably foreseeable especially where a complaint is not handled appropriately. In that case, Ms Clarke was comforted when it was determined reasonably foreseeable that she would suffer a psychiatric injury when her supervisor patronisingly responded to her complaint by suggesting that putting on some lippy and going home to her baby would resolve her concerns.
SMA v Johns XXIII College and Kozarov v State of Victoria, highlight that employers should be taking a fresh look at their duty of care to protect employees from psychosocial injury, and what practical steps they should be taking to manage and mitigate these risks.
In Kozarov, the High Court found in favour of a person suffering a psychiatric injury due to burnout in an extremely pressurised environment with high-risk responsibilities. The case affirmed the duty of the employer to provide the employee with a safe system of work, and in this case, the duty included to establish, maintain, and enforce such a system. The High Court specifically mentioned various proactive measures, which if the employer had implemented, would in its view, have prevented the employee’s severe psychiatric injury.
In this recent appeal involving duty of care, although not an employer and employee relationship, it was confirmed that the College had breached its duty of care to a person when that person developed a psychological injury after being sexually assaulted. The College was found to have caused the psychological injury through its mismanagement of the person’s complaint about the assault to the College.
The Court affirmed that both the assault and the injury were reasonably foreseeable by the College, and the College had two opportunities to take mitigating action against the risk of psychological injury, with one of those opportunities potentially preventing the assault, itself.
It is logical to presume that a court would employ similar reasoning and expectations in a case involving an employer/employee relationship, and John XXIII College demonstrates the expectations courts will place on those with a duty of care, to anticipate risks of harm and take preventative action.
Circumstances in this case echo several recent high-profile matters involving harassment and assault with ties to the workplace. The legal outcomes of those matters are yet to be seen.
In 2022, there is a widely developing sense of rejection from employees of psychosocial risks in work environments, this is observed in Kozarov. There is amplified scrutiny of certain environments and situations (note recent reports on toxic, alcohol-fuelled and power-wielding workplaces) and people are realising, this doesn’t smell right. Just because it might appear on the face of it that an employer is far enough removed from an incident, John XXIII College demonstrates courts are willing to look a little closer for the presence of a duty of care and the existence of preventable psychosocial risks.
Several international social movements have impacted on the way society perceives and addresses the disclosure of behaviour and attitudes that often lead to psychosocial injury.
The empowering survivor-centric approach and the revolutionising #MeToo movement, which has stimulated and supported survivors and victims to come forward with allegations of sexual harassment and assault, seems also to have instinctively encouraged others not to accept comparable power-dominating tactics prevalent in the workplace. Grievances relating to the behaviour, attitudes and actions that result in bullying, harassment, and burnout at work, are on the rise.
Let’s not forget about “cancel culture”, the contemporary phrase and crusade, which has successfully been applied in Australia to strike down cheese, beer, comedians, politicians, and commentators. Thanks to social media which provides anyone and everyone a voice, those who speak or act inappropriately (as assessed by society), need to be wary of this call-out culture which might leave them ostracised, boycotted, or simply “cancelled”. Some have argued cancel culture has had a negative effect on public discourse and even considered bullying itself, while others assert that it promotes free speech and accountability. Employers should think carefully about their workplace culture, accepted behaviour, and proactive action, to avoid the demise that significant psychosocial risks and injury invite.
Any employer in 2022 who is confident that psychosocial risks are low in their organisation should think again. While some environments are clearly higher risk, we assert all workplaces have risks that could lead to an employee suffering a psychological injury.
Eliminating harassment, bullying, and power, responsibility, and workload imbalances to change culture, is the goal, but what does that look like? How’s it done? It’s not uncommon for those with operational responsibility to not know where to start. Employers don’t want to be the “fun police” and employees don’t want that either.
Taking steps to reduce psychosocial risks doesn’t need to be difficult. Take “wet floor” signs for example, they pop-up easy, they’re bright, they inform, and they mitigate a risk. Are they always going to prevent a physical injury? No. But is there an attempt to prevent one? Yes.
Employers need to consider the “wet floor” signs they’re using to prevent injuries of the mind. For example, the giving of bad news and feedback. Often these discussions are delayed and indirect to avoid the inevitable awkwardness and hurt feelings; the exact opposite to immediately erecting a “wet floor” sign.
Instead, this discussion should be prefaced by acknowledging the content and the impact it may be likely to have on the employee, i.e., put up the “wet floor” sign. Address the issue and inform the employee of ways to resolve the concern, and before ending the discussion, direct them to methods of support, i.e., point to your “wet floor” sign again.
It is key that employers review their organisation's working environments and reconsider their duty of care with a broader application. Employers must identify and acknowledge psychosocial risks in their workplaces and implement strategies for effectively mitigating and managing those risks.
The Synergy Group are public and employment law, change management, assurance, and human resource, leaders. Our passion is to build and enhance organisations though sharing and imparting knowledge and strategies that enable organisations to achieve independent success.
We can provide practical solutions and strategies with impact, and real insights into how to mitigate risks. We apply a legal lens to identify psychosocial risks and offer tailored approaches to addressing issues with legally sound solutions.
