11 October, 2017
Case Name: Marsh v Ministry of Justice  EWHC 1040 (QB)
Legal point of interest: The common law duty of care towards employees to prevent exposure to any foreseeable risk of injury and/or psychiatric damage.
In January 2009, Mr Marsh, Prison Officer, was accused by a female inmate of having committed sexual misconduct. He was investigated by the Ministry of Justice (MoJ) but they determined to take no further action.
Later in 2009 however, Surrey Police were invited into the prison by the MoJ in order to investigate allegations that a number of Prison Officers were involved in sexual misconduct with inmates at the female prison.
In February 2010 the Police, with the agreement of the MoJ searched the suspects' homes, including the home of Mr Marsh. Subsequently, Mr Marsh was suspended from duty. The Claimant was then arrested in March 2010 on suspicion of sexual misconduct in public office, arising out of alleged sexual intercourse with a prisoner to whom it was alleged he had previously supplied alcohol and arising out of a second allegation that the claimant had "grabbed or slapped" the buttocks of the same prisoner when she was lying on the bed in her cell.
In May 2010 however, the Police reviewed the evidence against Mr Marsh and on 16 September 2010 wrote to him advising him that he would not face any charges and/or criminal prosecution.
Notwithstanding the decision of the Police, the MoJ did not lift the claimant's suspension from duty due to the ongoing criminal investigations against other prison officers relating to the same prisoner. The Claimant remained suspended from duty on full pay until the conclusion of the disciplinary hearing.
Other Prison Officers were convicted of sexual offences and subsequently imprisoned in July 2011.
The disciplinary hearing concluded in June 2012 and Mr Marsh was invited to resume his post. By this time however, Mr Marsh was suffering from depression and was unable to return to work.
On 30 May 2013, Mr Marsh was dismissed from his employment on the grounds of ill health. He alleged that his psychiatric injury and all consequential losses were caused by the negligence and/or breach of contract of the Defendant. As a result, he alleged that the MOJ had acted negligently and in breach of contract by failing to properly investigate the original allegation and by failing to remove the prisoner from the prison straight away. Mr Marsh also claimed that the MOJ had failed to complete its disciplinary process within a reasonable timeframe.
The High Court held that there was no breach of contact up to and including the point at which Mr Marsh's home was searched and held that the delay of approximately two months in moving the prisoner did not expose the Claimant to injury and was not a breach of contract.
The High Court did however find that there was a breach of the employer's duty of care to their employee, Mr Marsh, by their decision to suspend his disciplinary investigation whilst allegations against different officers were investigated.
It was held that without this breach, Mr Marsh would have recovered from his psychiatric injury and returned to work by May 2012. The Claimant was therefore entitled to damages relating to the prolongation of his illness from May 2012 and for the losses consequent upon that prolongation.
It is well known that employers have a common law duty of care towards their employees and must not expose their employees to any foreseeable risk of injury and/or psychiatric damage.
The High Court considered the past cases of Yapp v FCO  EWCA CIV 1512, in relation to remoteness, as well as Malik v BCCI  when assessing Mr Marsh's claim for damages. Malik found that it is an implied term of any contract of employment that the employer shall not without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.
In Gogay v Hertfordshire County Council , the council's failure to consider alternatives to suspension, such as re-deployment or a short period of leave, was taken into consideration by the Court.
In Marsh, the court found that the MOJ had failed to give any consideration to the effect of the Claimant's suspension from work on his mental health and highlighted again the importance of employers acting promptly when dealing with misconduct and disciplinary issues against an employee to prevent, as far as is possible, a breakdown in the relationship between the employer and employee. Indeed, the Court of Appeal advise that abuse allegations should be dealt with as quickly as possible for the sake of all concerned. Suspensions of employees during such investigations should therefore be kept under regular review.