A claim by a former prison officer, who developed a psychiatric injury as a result of the way he was treated by his employer, the Prison Service, following serious allegations of misconduct, has led to strong criticism of Ministry of Justice lawyers in the High Court. The case is likely to have important implications for future psychiatric injury claims and highlights the need to proceed promptly with disciplinary proceedings.

The claim for Mr Marsh was dealt with at a 15 day trial in the High Court before Lady Justice Thirlwall late in 2016.

Two key issues had arisen on the question of liability - whether the prison service was in breach of its duty in proceeding with an internal investigation after it had been confirmed that no criminal charges would be brought and also whether the time involved in carrying out the investigation given the circumstances also amounted to a breach.

Allegations had been raised against Mr Marsh of sexually assaulting a prisoner. One of those allegations had already been investigated by the prison (it was argued (unsuccessfully) to a substandard level). The allegations were then investigated by the police as part of a much larger inquiry into misconduct in the prison and it was decided that no charges would be brought against Mr Marsh. An internal investigation then proceeded some years later, essentially re-investigating the original allegations.

These were serious allegations and there is nothing in the judgment suggesting they should not have been thoroughly investigated, or that the claimant should not have been suspended during the course of these investigations.

The claim however focused on the prolonged suspension and delay before the disciplinary proceedings took place in circumstances where it was already known, or ought to have been known, that Mr Marsh was ill as a result.

As Lady Justice Thirlwall expressed in her judgment, ‘given the cumulative effect and roller coaster nature of all that had gone before... the dropping of the charges [criminal charges] followed quickly by the decision to proceed with the disciplinary proceedings and the frustration already expressed at the delay coupled with the claimant’s depression, any sensible person would have realised that the claimant’s mental health would be adversely affected by a decision to delay further. Injury was plainly foreseeable’.

This should be read in the general context that the court had found the claimant had developed a psychiatric injury, and that given the medical evidence before it, the claimant would on balance have made a recovery from the injury sustained without the delay in the internal investigation.

Although a first instance judgment, which was decided on the specific facts, this case is nevertheless very helpful.

It appears to widen the scope of a potential claim where (a) internal investigations as a result of allegations are delayed without good cause, and (b) where an employer is aware or ought to be aware of the detrimental effect this delay is having on the health of the claimant. It goes without saying that every case should still be considered on its own merits and this case does not purport to undermine the established law.

Tristan Hallam, partner in Penningtons Manches’ personal injury team in London, commented: “It has been the case for some time and in particular in matters involving police officers, where allegations are raised and internal investigations take a long time to be completed, with the officer generally on restricted duties or suspended during the course of the investigation, that no claim could be brought by the officer for the development of a psychiatric injury and for public policy reasons (Calveley v Chief Constable of Merseyside [1989]). It will be remembered however that this case involved breach of statutory duty where judicial review was the adequate remedy in the event of a breach.

“Although each case must be considered individually and while the public policy argument may still be one which is maintained by the courts, the judgment is nevertheless significant and raises some interesting issues.”