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Occupational stress claims
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Practically every job involves some level of stress, and stress can be beneficial in motivating and driving people. However, when stress levels get too high, this can cause health problems, both physical and psychological. Employers have a duty to ensure that this does not happen.
The definition of occupational stress
In Hatton v Sutherland; Barber v Somerset County Council; Jones v Sandwell Metropolitan Borough Council; Bishop v Baker Refactories Ltd  EWCA Civ 76,  2 All ER 1, Hale J made reference to three documents which she said that the Court had found helpful:
- Stress in the Public Sector – Nurses, Police, Social Workers and Teachers (1988) – this defines stress as ‘an excess of demands upon an individual in excess of their ability to cope’.
- Managing Occupational Stress: a Guide for Managers and Teachers in the School Sector (Education Service Advisory Committee of the Health and Safety Commission, 1990) – this publication defines stress as ‘a process that can occur when there is an unresolved mismatch between the perceived pressures of the work situation and the individual’s ability to cope’.
- Stress at Work (HSE, 1995) – this defines stress as: “The reaction people have to excessive pressures or other types of demand placed on them. It arises when they worry that they can’t cope… Stress is not the same as ill health. But in some cases, particularly where pressures are intense and continue for some time, the effect of the stress can be more sustained and far more damaging, leading to longer term psychological problems and physical ill health”.
In Hatton v Sutherland, the judge observed that harmful levels of stress tend to happen where people find themselves in situations where they feel trapped or powerless. They are therefore a lot more likely to affect those that hold junior positions. It was also observed that stress is a psychological phenomenon that can lead to mental ill health, physical ill health – or to both.
The duty of care
The ordinary principles of employers’ liability apply to claims for psychiatric illness that arise from employment (Petch v Commissioners of Customs and Excise  ICR 789).
Whilst the claim in Petch failed, the same principles were upheld in Walker v Northumberland County Council  1 All ER 737. In this case, the Claimant was an overworked manager who complained, asking for extra help and leave. The judge ruled that the first mental breakdown he suffered was not foreseeable – however, upon returning to work with the promise of additional help, which was then not given to him, he experienced a second mental breakdown for which there was liability.
Both the Walker and Petch cases were cited with approval in Garret v Camden LBC  EWCA Civ 395.
Breach of duty, reasonable foreseeability and causation
In Hatton v Sutherland 2002] EWCA Civ 76, the Court laid out guidelines for occupational stress cases, and these were later approved by the House of Lords in Barber v Somerset  UKHL 13. The Hatton guidelines are as follows:
- There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work an employee is required to do. The ordinary principles of employer’s liability apply.
- The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. This has two components: (a) An injury to health (as distinct from occupational stress) which, (b) Is attributable to stress at work (as distinct from other factors).
- Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury but may be easier to foresee in a known individual than in the population at large.
- An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
- The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
- Factors likely to be relevant in answering the special question in the context of this case include:
- The nature and extent of the work done by the employee. Is the workload more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or same department?
- Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
- The employer is generally entitled to take what he is told by his employees at face value unless he has good reason to think to the contrary. He does not have to make searching inquiries of the employee or seek permission to make further enquiries of his medical advisors.
- To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employers to realise that he should do something about it.
- The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.
- An employer can only be reasonably expected to take steps which are likely to do some good: the court is likely to need expert advice on this.
- An employer who offers a confidential advice service with referral to appropriate counselling or treatment services is unlikely to be found a breach of duty.
- In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty.
- The claimant must show that the breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
- Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the Defendant to raise the question of apportionment.
- The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.
Following Hatton, in the case of Young v Post Office  EWCA Civ 661 the Court considered whether the Claimant had a duty to tell their employer if they were unable to cope – and whether the Claimant might be contributory negligent if they did not do this. The facts of the case are that the Claimant, an employee of the Post Office, was promoted to the position of Workshop Manager. The Claimant had no manager above him. A new computer system was brought in at work and the Claimant was expected to get to grips with it, without any training being offered. He started to show signs of stress at work and suffered a nervous breakdown, taking four months away from work to recover. An arrangement was agreed whereby the Claimant would return to work gradually, working flexibly. But when the Claimant did return, he quickly took on the same management position that had caused him to have a breakdown. Some seven weeks after returning, the Claimant could not continue as a result of his stress, and left. The Defendants argued that in offering a flexible work pattern to the Claimant, they had done everything they could to reduce the stress. However, the Court ruled in favour of the Claimant, as it was plainly foreseeable that a recurrence might happen if no suitable steps were taken on the Claimant’s return to work, and the Defendant as his employer was under a duty to take these steps. Despite the Defendant telling the Claimant that he could work flexibly, the Claimant in reality was a conscientious hard-working person, and it was foreseeable that he would go back to overworking again. It was the employer’s duty to make sure the Claimant had help, which they failed to do. The Defendant alleged contributory negligence and the Court found this to be irrelevant for the case in hand, remarking that it would be unusual although ‘theoretically possible’.
A further more recent case of note was Connor v Surrey County Council  EWCA 286. The Claimant in this case was the head teacher of a primary school and the Defendant was the Local Education Authority. The Court awarded damages for the Defendant’s failure to have regard to the effect of its conduct on her health or to give her the support she needed, which led to the Claimant suffering from severe depression. The Defendant argued that there were no signs of any impending harm to the Claimant’s health, suggesting therefore that the injury was not reasonably foreseeable. The Court rejected this – the fact the Claimant had not been away from work was irrelevant, with the risk being obvious from comments that were made by both the Claimant and others. This decision was upheld by the Court of Appeal.
Other decisions of interest include:
- Barlow v Broxbourne Borough Council  EWHC 50 (EB),  All ER (D) 208 (Jan) – a good example of the application of the Hatton principles.
- Intel Corporation (UK) Limited v Daw  EWCA Civ 70 – Pill LJ approves of Hatton guidelines but warns courts not to follow it too slavishly, in particular commenting that the provision of a counselling service by the employer does not discharge the duty of care of an employer in all cases.
- Dickens v O2 plc  EWCA Civ 1144 – again supports that provision of a counselling service doesn’t exonerate an employer.
Once a breach of duty of care has been demonstrated, it is necessary to prove that breach of that duty caused the harm in question. If there are a number of different possible causes, it may be difficult to prove that employer’s breach of duty was one of these, and expert medical evidence will often be needed. Two useful cases on this point are:
- Bonnington Castings Ltd v Wardlaw  AC 613 – the Claimant does not need to show that the breach of duty by the Defendant was the sole cause of their ill health – only that it made a material contribution to it.
- Garrett v Camden LBC  EWCA Civ 395 – the main cause of the harm was the Claimant’s vulnerable personality which the Defendant employer did not know of.
Image source: http://www.nhs.uk/Tools/Pages/Workplacestress.aspx
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