Latest news on claims for stress at work

Background

It is an employer’s duty in law to make sure that employees (and others) are not made ill by their work. The duty is imposed or implied in both civil and criminal law. In the former the employer has a duty of care to protect employees from risks of foreseeable injury, disease or death at work. This principle was first identified in the House of Lords in the case of Wilson’s & Clyde Coal Co. Ltd v English as long ago as 1938. It was held that employers should provide and maintain–

• A safe place of work with safe means of access and egress
• Safe appliances and equipment for doing the work
• A safe system of work
• Competent fellow employees

Although this case relates to physical matters there is no reason why the principles may not be applied to mental health and well being. The duty of care is of a personal nature i.e. it applies to each person as an individual in the workforce.

The duty to ensure as far as is reasonably practical the health, safety and welfare of all employees arises in criminal law through the Health and Safety at Work Act 1974. This duty arises equal in mental health and psychological well being as it is in terms of physical health and well being. The Management of Health and Safety at Work Regulations 1999 updated in November 2001 state that “It is the duty of all employers to make sure that their employees are not made ill by their work. Where stress caused or made worse by work could lead to ill health, employers must assess the risk. If necessary, [they] must then take reasonable steps to deal with those pressures”. These Regulations do not include the “as far as is reasonably practical” condition and oblige an employer to undertake a risk assessment of possible hazards including mental as well as physical health. A civil sanction i.e. damages is available for the tort of breach of statutory duty i.e. breach of the Management Regulations.

The criminal law is enforced by the HSE and Local Authorities which have power to serve improvement notices and prohibition notices and to bring criminal prosecutions in the magistrates or Crown Court. In civil law an employer is under a duty of care, both in law of contract and tort. In contract law there is an implied term that an employer will take reasonable care for the employee’s health and safety at work and will also observe a duty of mutual trust and confidence.

Important cases that should be considered in interpreting the law are–

Sutherland v Hatton

The claimant was initially awarded £90765 but the Court of Appeal held that she had suffered some distressing events outside work; that she had not given her employer notice that she was becoming unable to cope with her work and because other similar staff did not suffer from ill health as a result of re-structuring her employer was not held liable.

Importantly the Court stated that teaching cannot be regarded as intrinsically stressful.

This is a much quoted case that employers have taken comfort from but beware – see Dickins v O2 below.

Barber v Somerset County Council

Barber was originally awarded £101042 after re-organisation increased his workload which led to him becoming depressed and taking early retirement. Since he was not the only person to have an increased workload and he did not inform his employer of his depressive symptoms the employer was held not to be in breach of its duty of care.

Bishop v Baker Refractories Ltd

Similarly this case in which Bishop was originally awarded £7000 damages rested on restructuring and the claimant’s failure to make his employer aware of his symptoms nor that his doctor had advised him to change job. It was held that he was “set in his ways” and wanted his old job back.

Jones v Sandwell MBC

Sandwell MBC’s appeal was dismissed on the grounds that they knew of Jones’ excessive workload and had given no help. Jones was awarded £157541 because it was reasonably foreseeable that knowing of her excessive workload her employer had failed in its duty of care.

A very important recent case has changed the landscape somewhat–

Dickins v O2

This case as recent as October 2008 is an indication that the Court can prefer the evidence of the claimant in making an award.

Dickins was awarded £219508 reduced by 50% to £109754 for injury caused by occupational stress. After initially responding well to Dickins’ stress by moving her to a different job the new job included some of the type of work that she found difficult to handle. A colleague who was to help left and Dickins was left to cope alone; she spoke to her manager and asked for a less stressful job and was told that there were no vacancies. She subsequently asked for a sabbatical saying she was concerned that the stress of the job would make her ill. Her manager promised to make enquiries and suggested she contact the Company’s counselling service. During an appraisal she said that she was feeling very stressed and that her symptoms would lead to her being off work. She was referred to occupational health department but the paperwork went astray. Dickins took time off work due to stress.

The Court of Appeal decided that O2 was in breach of its duty of care for not referring Dickins to occupational health quickly enough, referring her to a counselling service or even sending her home (we advise that anyone reporting stress, depression or anxiety should be seen within 24 hours) and for failing to recognise the foreseeablility of a harm to health.

Importantly, as we understand the case, the £109754 was upheld by the Court of Appeal after the trial judge had reduced the damages by 50% because it held that the psychiatric injury should be seen as indivisible from non employment factors. In other words if the employer has made a material contribution to the onset of the illness it is liable for the whole injury.

Conclusion

Litigation is the last thing that employers and employees want. It is costly, not only in financial terms, but also in time and mental energy. Employers are best advised to take seriously any employee who claims that they are suffering from stress, anxiety or depression and ensure that professional and proportionate help is provided. The provision of a counselling service will not, as has been previously argued, be sufficient. Employees take note that you must advise your employer as soon as you feel that you may be experiencing stress.

See our White Paper (Free Guide to Stress at Work) available on our web site.