Vicarious Trauma: Employers’ Duty of Care to Provide a Safe Working Environment
On 13 April 2022, the High Court of Australia allowed an appeal from the Victorian Court of Appeal concerning a decision around vicarious trauma and the duty of care that employers have to safeguard the psychological safety of their employees. The full decision can be found at this link (Decision). This Decision makes clear that the duty of care to provide a safe working environment is not limited to physical health and extends to psychological safety and places the onus on employers to take steps to prevent psychological harm to their employees.
Background
Zagi Kozarov, a solicitor, began a new role in the Specialist Sexual Offences Unit (SSOU) of Victoria’s Office of Public Prosecutions (OPP) in 2009, which involved prosecuting serious sex offences. Her work involved observing graphic images and included child sexual abuse cases.
After a few years, Ms Kozarov began to complain about the impact her job was having on her personal life, including the excessive workload and stress. She found it particularly confronting that many of the children she was dealing with at work were of similar ages to her own children. She became hypervigilant, which affected her parenting, as she was unwilling to leave her children alone with adults after prosecuting many of those who held positions of trust, including teachers and coaches.
Ms Kozarov had discussions with her manager following a period of sick leave about her ability to complete her work, sending emails explaining that her doctor recommended she take further time to recover.
Unbeknownst to both Ms Kozarov and her manager, the OPP did have a workplace vicarious trauma policy in place which detailed the role of the OPP when dealing with staff who are working in confronting or traumatic situations. The policy recognised that a person working in the SSOU for two years could develop adverse mental health outcomes, and indicated that employees should be regularly rotated. However, this policy was not implemented.
Ms Kozarov was ultimately diagnosed with post-traumatic stress disorder (PTSD) and suffered a major depressive disorder (MDD), as a result of the vicarious trauma she suffered in the course of her employment. She unsuccessfully requested to be rotated out of the SSOU, and her employment was ultimately terminated. Ms Kozarov later sued the OPP for negligence.
What is Vicarious Trauma?
Vicarious trauma is a psychological response to ongoing exposure to other people’s trauma. Employees repeated exposure to traumatic events through their work, can in turn affect an employee’s health and wellbeing. You can read more about this here.
Vicarious trauma shares many similar symptoms with trauma, burnout and stress. Symptoms of vicarious trauma can include:
- Nightmares or difficulty sleeping
- Flashbacks
- Obsessive thoughts
- Increased time off work
- Comfort eating and increased alcohol use
- Difficulty concentrating
- Hyper-vigilance
The High Court Decision
The High Court (Court) found that the OPP was negligent in failing to protect Ms Kozarov’s mental health and had breached their duty of care. Ms Kozarov was awarded $435,000 in damages for the PTSD that she suffered while working at the OPP.
The Court held that Ms Kozarov’s role was ‘inherently and obviously dangerous’ to her psychological health and the OPP had a duty to proactively assess her welfare and put measures in place for her to complete her work safely. They had a duty of care to take all reasonable steps to prevent foreseeable harm to their employees.
The Court found that the OPP was on notice that Ms Kozarov was suffering after her communication with her manager and should have implemented preventative measures before her condition worsened.
The Court stated that the OPP should have implemented measures such as:
- Welfare checks
- More comprehensive training for management and staff about the risks of PTSD and vicarious trauma
- Optional rotating out of the SSOU
- An actively implemented policy around vicarious trauma
What Does the Decision Mean?
This Decision makes it clear to employers that they need to understand the psychological risks involved in the work that they are assigning their employees and that their duty of care to provide a safe working environment extends to safeguarding the mental health of their employees.
Employees need to take steps to identify and prevent psychological harm to their employees. This includes:
- Being aware of the warning signs of vicarious trauma and responding to them
- Responding to concerns raised by employees about their work efficiently and in a trauma-informed manner
- Providing comprehensive training to management and staff on vicarious trauma
- Ensuring that policies and procedures are in place and actively implemented to address psychological safety in the workplace
- Promoting a culture of safety and encouraging employees to seek support when needed
How can Safe Space Legal help?
The team at Safe Space Legal have extensive experience working with employers across Australia to support and strengthen their safeguarding practices. We frequently conduct independent workplace investigations into vicarious trauma and psychosocial hazards, including sexual harassment and bullying. All investigations are conducted in a trauma-informed manner.
Safe Space Legal provides the following services to ensure employers meet their legal obligations to safeguard employees:
- Conducting independent investigations which are compliant with commonwealth, and relevant state and territory legislation and regulations.
- Ensuring that complaints handling and reporting processes are compliant with legal obligations and are trauma informed.
- Assistance and support to respond to allegations of workplace health and safety breaches.
- Delivering training to ensure employers and employees are aware of their legal obligations in respect to vicarious trauma, workplace bullying and harassment.
Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.