Skip to main content

Mental Distress Claims: What You Need to Know

Richard B. Johnson

Co-Founder + Partner
November 18, 2021

Being fired is rarely a pleasant experience. Feelings of embarrassment, disappointment, anger, and anxiety often arise for the former employee and sometimes for the employer as well. These negative feelings are normal and understandable when someone is experiencing job loss. However, if a termination is carried out in such a way as to inflict undue psychological harm on the employee, above and beyond these normal stressors, this can lead to a mental distress claim. 

What Is a Mental Distress Claim?

A mental distress claim is a claim by an employee (plaintiff) against the employer (defendant) who inflicted the distress. In this type of court proceeding, an employee is suing the employer for “aggravated damages” — monetary compensation for severe mental distress caused by the firing process, beyond the expected negative feelings that would arise in any termination. 

To understand these claims completely, it’s important to understand what a termination normally entails. Every job involves a contract — an agreement that exists between the employee and the employer. When the employer decides to end that contract, they are obligated to compensate the employee for breaking the contract itself (except in cases of just cause). This compensation for ending the employment contract is what’s often called severance pay — pay in lieu of reasonable notice, or some combination of pay and notice prior to the employee leaving the job. Aggravated damages, then, are compensation amounts above and beyond the severance pay that the employee would be entitled to based on the length of their service. 

A mental distress claim is not a dispute over whether the employee should have been fired in the first place, but over the manner in which the employee was fired. While mental distress claims are frequently related to wrongful dismissal claims, they are a distinct claim. A mental distress claim argues that the method of termination was unduly distressing or humiliating, and caused lasting psychological damage to the employee.

Claiming Mental Distress

If you feel you have experienced undue mental distress as a direct result of a former employer’s method of firing you, then you have up to 2 years after the incident to claim aggravated damages. 

The nature of mental distress claims means that there is often overlap with other workplace issues, like bullying, constructive dismissal, or even defamation. However, it is important to recognize that BC courts have a fairly high and narrow standard for what they will accept as genuine mental distress. You have to be able to prove that your distress had a real negative impact on your life, and that it was caused by the method of termination, regardless of whether there were other issues going on during your time at a job. If your issue concerns more long-term bullying or negative treatment during the course of your employment, you may have better luck pursuing, for example, a human rights complaint.

How Can You Prove a Mental Distress Claim?

In terms of building a case against a former employer, the key is being able to prove, via concrete evidence, that:

  1. You experienced a tangible negative psychological effect upon being fired, above and beyond what would normally be expected, and;

  2. The psychological distress was a direct result of the employer’s method of terminating your employment.

In practice, it’s often difficult to build a strong mental distress case, because psychological symptoms can be nebulous, and hard to conclusively tie to one particular event. Ideally, a plaintiff in a mental distress case would be able to provide a written diagnosis from a qualified medical provider to show that they indeed suffered lasting mental trauma. 

Having witnesses to corroborate that anxiety, depression, or post-traumatic stress as a result of the termination affected your daily life and functioning can also be helpful. Keep in mind that many people suffer from anxiety or become depressed following job loss — even if family can corroborate your being upset or lethargic for a week after a termination, this will likely not be enough for you to win aggravated damages. The BC Court of Appeals maintains a very high standard for awarding these damages, for the very reason that negative feelings following job loss are so common. 

A mental distress claim asserts that you experienced a legitimate reaction. Perhaps you suffered from a prolonged bout of depression, or you began to question your self-worth, or your relationship with your family, spouse, or children was affected. These are all foreseeable to some degree, but it’s when they have a significant impact on your life and your ability to function — to maintain your health, your relationships, or your career — over a prolonged period of time, that a mental distress claim becomes concrete. 

Overlap with other types of claims

Mental distress claims rarely occur in a vacuum. As mentioned earlier, they are often linked to wrongful termination and constructive dismissal cases. Though it’s theoretically possible for a worker to be subjected to distressing treatment around termination while still being provided adequate notice or pay in lieu of notice, this is not something we see often. 

In some cases, a mental distress claim is brought about because a company levies accusations of misconduct against an employee in order to try to dismiss that employee for cause. If these accusations are false, this can be both a mental distress claim and potentially a defamation claim. Of course, even if you have strong evidence for a defamation case, this won’t necessarily win you aggravated damages. It’s likely that defamation would cause mental distress, but you still need to be able to conclusively prove not only that the distress is legitimate, but that it was directly linked to false accusations from your employer.

As a final note, keep in mind that mental distress claims are separate from the types of psychological issues that may be covered by WorkSafe. WorkSafe does compensate for qualifying mental disorders, but their area of compensation is limited.