83% of workers feel emotionally drained by their jobs. Another 71% say that the workplace has a strong impact on mental health.
Work is stressful: that’s just life. Yet what happens when a workplace becomes truly toxic? What happens when the workplace injury subjects you to emotional abuse or bullying?
In some cases, employers are liable for emotional distress caused at work, either because they failed in a duty of care and created an unusually tough work environment or because a manager or bad actor has committed an intentional tort through bullying and harassment.
When this happens, you may be entitled to compensation.
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How Can You Prove Emotional Distress is Happening at Work?
The proof begins with documentation. You should make a record of every incident that causes emotional distress, especially if the issues are ongoing.
You should also begin working internally first. Report the issue to your boss or supervisor. Document the response. If you get little or no help from your supervisor or from HR then the record that you tried and were rebuffed can serve as evidence in your favour.
Your lawyer will also be looking to prove that the conduct was outrageous and that it was done with either intent to cause harm or with a reckless disregard for the harm it would cause.
What Types of Emotional Distress Can a Person Experience at Work?
Harassment is very common. This can include being embarrassed or humiliated in front of coworkers, being shouted at or verbally abused, or being stalked or bullied. There are also instances where workers are routinely forced to work in uncomfortable, unsafe, or unacceptable conditions.
What are the Signs of Emotional Distress?
Emotional distress usually manifests as a form of depression or anxiety. This can include:
- Changes in sleep patterns
- Changes in appetite
- Withdrawal from family and friends
- Fatigue
- “Brain fog”
- Unexplained aches and pains
- Feelings of helplessness, hopelessness, or worthlessness
- Feelings of guilt or worry
- Loss of interest in work
- Loss of interest in leisure activities
- Mood swings
Your Rights are Protected at Work
The law protects your right to be safe at work. Employers and supervisors have a duty of care to ensure that you are not harassed on the job. Workplace harassment is covered by Alberta’s Occupational Health and Safety (OHS) Act.
“Harassment means any single incident or repeated incidents of objectionable or unwelcome conduct, comment, bullying or action by a person that the person knows or ought reasonably to know will or would cause offence or humiliation to a worker, or adversely affects the worker’s health and safety, and includes: (i) conduct, comment, bullying, or action because of race, religious beliefs, colour, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, gender, gender identity, gender expression and sexual orientation, and (ii) a sexual solicitation or advance, but excludes any reasonable conduct of an employer or supervisor in respect of the management of workers or a worksite.”
Thus you can build a case based on discrimination based on a protected class, on sexual harassment, or on offence or humiliation, but will have to show that this was not reasonable conduct in light of what it takes to manage work or the worksite.
Suing for Emotional Distress at Work
When you sue for emotional distress at work you are using the “harassment tort.” This tort has not seen very much play in Alberta courts.
It’s also possible to use “constructive dismissal” to get severance pay and damages. The employer has failed to live up to their OHA responsibilities and so the employee is forced to quit their job to protect their mental health.
The two tests of a constructive dismissal claim are whether the employer’s act breached the employment contract or whether the employer’s ongoing conduct demonstrates an intention to no longer be bound by the employment contract. Case law has already supported that harassment meets the second test.
Before quitting your job you should always consult with a lawyer. If you quit and your constructive dismissal claim is not upheld then you might be out of a job and unable to recover any money. In addition, the length of time you have been on the job will matter, as that will impact the amount of severance pay you could be legally entitled to.
You can also use the intentional infliction of mental suffering tort instead of the harassment tort, or a violation of human rights claim. This has three elements. The first is that your employer has engaged in outrageous or extreme conduct. The second is that you and your lawyer must provide proof of actual intent to cause harm of the kind that was suffered. The third requires you to show that you have actually suffered emotional distress or mental harm as a result of this conduct.
In some cases, the courts will require the Worker’s Compensation Act to be used for an emotional distress claim instead. For example, WCB already makes provisions for suffering PTSD on the job. This is most likely to happen when emotional distress arises from the nature of the employment. Police officers, social workers, and first responders all face the risk of emotional distress simply by the nature of the work you do.
In worker’s compensation cases, psychological injuries are accepted for WCB claims when you’ve been “formally diagnosed with a psychological injury after exposure to a traumatic event(s) at work, or you have experienced an accumulation of stressors at work or a significant stressor that appears after a long period of time. A confirmed psychological injury may also be accepted if it develops due to an emotional reaction from being injured and/or undergoing treatment for your injury.”
How Much Does Suing Your Employer Cost?
The cost of suing your employer varies depending on where you live, the lawyers you pick, the purpose of your case, and the defendant’s settlement willingness.
The majority of employment lawyers work on a contractual basis, which means that you only pay for their services if your case is successful. The percentage charged will vary based on the nature of the case, the market in your city or state, and the lawyer’s skill. It typically ranges between 33% and 50% and may change depending on when the case ends during the court proceedings. Some lawyers will charge a fee for the first meeting. some do not.
Some lawyers who work on a contractual basis ask for a deposit to cover time and money such as taking legal action, court reporter fees, expert fees, etc. Others will pay the bill up front and receive a refund from the proceeds. Before you sign your agreement, you should make sure that you are not bound to cover charges if you lose your case.
Damages in a Successful Emotional Distress Claim
If you and your lawyer choose one of the available tort claims then you could be entitled to lost wages for your entire period of employment, damages for loss of dignity and self-respect, which are essentially pain and suffering damages, and in some cases reinstatement, though this may not be possible in all workplaces.
In a worker’s compensation claim you would receive compensation for psychiatric bills and compensation for the wages lost while recovering from the workplace harassment.
Will Your Emotional Distress Case Go to Court?
Most cases are settled out of court, either through negotiations between both parties or through the alternative dispute resolution (ADR) process with the help of a formal mediator. This is usually for the best. Settling out of court offers more control and more chance that you’ll be compensated for your damages and losses.
Court becomes unpredictable: we don’t know what judges will do or what juries will see. Nevertheless, our team is known for our litigation skill and we’re not afraid to tell your story in front of a jury if we need to.
Get Help Today
If you are dealing with emotional distress as a result of the conduct of your coworkers or supervisors, and you can’t get help from your own company, turn to us. Our lawyers have over 20 years of experience handling tort claims, and we take your emotional distress seriously.
Call (403) 269-7777 to schedule a case evaluation today.
