STRESS AT WORK
The Legal Implications
Court of Appeal Guidance
In 2002, the Court of Appeal, in Chairman of the Governors of St Thomas Becket RC High School v Hatton & Other Cases, considering four cases together, overturned three decisions and upheld one decision of the County Court that employers were liable in the tort of negligence for psychiatric injury suffered by employees. The Court of Appeal held that, in respect of three of the four employees in question, it had not been reasonably foreseeable that they would suffer psychiatric injury as a result of occupational stress and, accordingly, their employers had not been under a duty of care to take steps to prevent such injury. In particular, in its judgement, the Court of Appeal laid down guidance as to how the County Court and the High Court should deal with negligence claims made against employers by employees with psychiatric injury.
The Court of Appeal focused on the key issues of:
a) when a psychiatric injury could be said to have been reasonably foreseeable;
b) what an employer could reasonably be expected to do to prevent such psychiatric injury; and
c) the difficulty of ascertaining the cause of such psychiatric injury.
The Court of Appeal stated that an employer will escape liability for an employee's psychiatric injury unless it was reasonably foreseeable that the employee in question would suffer such an injury as a result of the employer‘s failure of the duty of care.
The Court of Appeal proceeded to consider the circumstances in which it could be said to be reasonably foreseeable that a psychiatric injury would occur. The Court of Appeal that there were no occupations so intrinsically stressful that psychiatric injury was always reasonably foreseeable. Foreseeability would depend on the relationship between the particular demands of a job and the particular characteristics of the employee concerned. With this in mind, the Court of Appeal listed a number of factors which were relevant to the issue of foreseeability. These factors were split into two groups, one relating to the demands of the job and the other to the characteristics of the employee:
Demands of the Job
a) the nature and extent of the work done by the employee;
b) whether the employee's workload was much greater than was normal for the kind of job which he or she performs;
c) whether the employee's work was particularly intellectually or emotionally demanding;
d) whether demands made of the employee were unreasonable when compared with the demands made of others in comparable jobs;
e) whether there were signs that other employees doing the same job were suffering harmful levels of stress;
f) whether there was an abnormal level of sickness or absenteeism in the employee's job or department. Characteristics of the Employee whether there were signs from the employee of impending harm to health
b) whether the employee had a particular problem or vulnerability; whether the employee had already suffered from illness attributable to stress at work; whether there had recently been frequent or prolonged absences which were uncharacteristic of the employee, and whether there was reason to think that these might be attributable to stress at work.
However, the Court of Appeal stated that an employer was entitled to assume that an employee could cope with the normal pressures of a job unless he knew of something specific about the job or the individual employee which should make him consider the issue of psychiatric injury. As for the question of how much an employer is expected to know about an individual employee's circumstances, the Court of Appeal stated that an employer was not obliged to make intrusive enquiries, and was generally entitled to take what he is told by his employee at face value. In conclusion, the Court of Appeal stated that a duty to take steps only arose where signs that an employee might suffer psychiatric injury from stress at work were plain enough that any reasonable employer would realise that he should act.
The Court of Appeal then moved on to warn against the assumption that an employer will always be in breach of his duty of care if he fails to take steps to prevent an employee from suffering a reasonably foreseeable psychiatric illness. A number of factors must be considered before one can conclude that an employer is under a duty to take steps, including:
the magnitude of the risk of psychiatric injury occurring;
the gravity of the injury which may be suffered;
the cost and practicability of preventing such injury - particularly in view of the employer's resources;
the effect that any steps taken would have upon the employer's other employees; and
whether such steps would actually prevent the injury occurring.
The Court of Appeal had two further comments about the steps that an employer might be expected to take. First, they stated that an employer who has a stress management policy and offers a stress management programme is unlikely to be found in breach of duty except where he has been placing unreasonable demands on an individual where the risk of psychiatric injury was clear. Secondly, the Court of Appeal stated that one step an employer is not obliged to take, even where that step would be the only reasonable and effective one available, is to demote or dismiss an employee in order to remove him or her from a stressful situation. In the Court of Appeal’s view, an employer will not be in breach of duty simply by allowing a willing employee to continue in his or her job.
Causation and damages
Even where an employer has breached the duty of care owed to an employee, and where the employee has suffered psychiatric injury, the employee in question still has to demonstrate that the breach of the duty of care has caused or materially contributed to his or her injury. The Court of Appeal went on to note that, unless an employee's psychiatric injury is indivisible from the employer's breach of duty, where a psychiatric injury has more than one cause, the employer should only pay for the proportion of the injury attributable to his breach. The Court further noted that an assessment of damages will take account of any pre-existing disorder or vulnerability which the employee had, and the possibility that the employee would have suffered a psychiatric injury notwithstanding the employer's breach of duty.
The Court of Appeal summarised its guidance, listing the sixteen key principles set out below:
(1) There are no special control mechanisms applying to claims for psychiatric injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer's liability apply.
(2) 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).
(3) Foreseeability depends upon what the employer knows, or ought reasonably to know, about the individual employee. Because of the nature of psychiatric injury, 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.
(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
(5) Factors likely to be relevant in answering the threshold question include:
(a) the nature and extent of the work done by the employee.
Is the workload much greater than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee?
Are the 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 the same department?
(b) 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?
(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.
(7) 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 employer to realise that he should do something about it.
(8) The employer is only in breach of the duty of care if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.
(9) 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.
(10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
(11) An employer who has a stress management policy and offers a stress management programme is unlikely to be found in breach of the duty of care - provided he is not doing anything untoward, such as imposing excessive demands, bullying or harassment.
(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
(14) The claimant must show that that breach of the duty of care has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
(15) 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 employer to raise the question of apportionment.
(16) 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.
Then, having set out the relevant law, the Court of Appeal moved on to apply the law to the facts of the four cases in question, as attached.
The Hatton Case
H taught in a comprehensive school in Liverpool from 1980 until 1995. In 1989, following the break-up of her marriage, she took two months off work with depression. In January 1994 she took a further month off after she was attacked in the street. In April 1994 she was sent home for the rest of the term when her son was admitted to hospital. She saw a stress counsellor in August 1994, but did not mention this to her employer. In October 1995 she was signed off work with depression, never to return. At no stage had H complained to her employer about her workload, which, in any event, had been no more burdensome than that of any other teacher in a similar school. The County Court found H's employer liable in respect of H's psychiatric injury and awarded H damages of over £90,000.
The Court of Appeal overturned the decision of the County Court. The Court of Appeal held that H's employer had not been under a duty of care to take steps to prevent H suffering a psychiatric injury because it had not been reasonably foreseeable, by reference to H's workload and pattern of absence, that she was likely to suffer psychiatric injury as a result of occupational stress. In the Court's of Appeal’s view, H's employer could not have been expected to examine further the causes of H's absences when H attributed them to problems at home. The Court of Appeal added that, in any event, the County Court had not identified a specific breach of the duty of care which had contributed to H's psychiatric injury.
The Barber Case
B was also a teacher. He was Head of Mathematics at East Bridgwater Community School from 1984 until 1996. In 1995 all of the teachers at B's level were being overworked. B developed symptoms of depression at this time, but did not tell anyone about them before taking three weeks off work in May 1996. When he returned to work, he said that he was finding things difficult. B's symptoms continued in the summer holidays. When he returned after the break, the Head Teacher asked a colleague to keep an eye on B. In November 1996 B broke down and was advised to stop work immediately. The county court found B's employer liable in respect of B's psychiatric injury and awarded B over £100,000 in damages.
The Court of Appeal again overturned the decision of the County Court. They held that the judge should have considered whether, at any point, the school had been under a duty of care to take action; what any such action should have been; and whether it would have successfully prevented B's illness. The Court of Appeal noted that B had not let his employer know that, following the summer holidays, he was still experiencing problems. In the Court of Appeal’s view, B's employer could not have been expected to realise that B's problems were continuing when he did not give some indication of that fact. Accordingly, the Court of Appeal held that B's employer had not been under a duty of care to take steps to prevent B's psychiatric injury occurring.
The Jones Case
J worked as an administrative assistant for a local authority from August 1992. J's job was unique, and her employer recognised that she was being expected to do the work of two or three people. The requirements of J's job forced her to work excessive hours. In February 1993 J complained of overwork and head office made provision for help to be provided. However, J's immediate manager diverted this help to other tasks and dismissed J's complaints. J stayed away from work with psychiatric problems in January 1995 and did not return before being made redundant at the end of 1996. The County Court found J's employer liable for her psychiatric illness and awarded her damages of over £150,000.
The Court of Appeal stated that this was a case in which an employer made unreasonable demands upon an employee and in which a manager did not react reasonably to the employee's complaints. The Court of Appeal held that, in the circumstances, J's psychiatric injury had been reasonably foreseeable. Further, J's employer could have done something, i.e. reduced her workload, to prevent the psychiatric injury, and his failure to do so led to J's suffering her injury. Accordingly, in the Court of Appeal's view, the County Court had been entitled to decide in J's favour. The Court of Appeal commented, however, that their decision on liability should not be read as an indication of their view in respect of the sum of damages awarded.
The Bishop Case
B worked as an operative in a factory from 1979 until 1997. In 1995, following a reorganisation, B was expected to perform a greater variety of tasks than previously. He found it difficult to cope and asked to revert to his old system of working. However, since B's old job was no longer available, the foreman did nothing except reassure B that he was doing a good job. In November 1996, B's doctor advised him to find a new job. B did not tell his employer about this advice. B took three weeks off in early 1997, citing 'neurasthenia' as the reason for his absence, and broke down at work shortly afterwards. The County Court found B's employer liable in respect of his psychiatric injury and awarded B damages of £7,000.
The Court of Appeal overturned the decision of the County Court on the ground that the psychiatric injury was not foreseeable. The Court of Appeal noted that B's employer had not made unreasonable demands of B. Further, they noted that, although the employer knew that B was unhappy, he was unaware of the advice of B's doctor. In the Court of Appeal’s view, there was nothing in the sick notes submitted by B which would have given a clear sign to a reasonable employer that action was necessary to prevent B suffering a psychiatric injury. The Court of Appeal went on to state that, even if B's injury had been reasonably foreseeable, there were no steps which B's employer could reasonably have been expected to take. The only effective step would have been to dismiss B and, as the Court had previously stated, an employer cannot be in breach of the duty of care for failing to dismiss an employee who wishes to continue working.
Chairman of the Governors of St Thomas Becket RC High School v Hatton;
Somerset County Council v Barber;
Sandwell Metropolitan Borough Council v Jones;
Baker Refractories Ltd v Bishop.
Court of Appeal, 2002 EWCA Civ 76.
IDS Brief 704 (March 2002).