In Easton v B&Q, the High Court considered whether an employer was liable for an employee's psychiatric illness, allegedly caused by stress at work. On the facts, the Court decided the employer was not liable, confirming that the employee's task of demonstrating that their psychiatric injury was "reasonably foreseeable" is not easy.
The Health and Safety at Work Act 1974 imposes a general duty on employers to ensure, as far as is reasonably practicable, the health and safety and welfare at work of all of their employees. This statutory protection supplements the common law duty on employers to take reasonable care of the health and safety of employees in the workplace. Employees need to demonstrate that their employer breached the duty of care owed to the employee and this caused a reasonably foreseeable injury.
In this case, the Claimant was a well-regarded store manager, having worked his way up to this level through a string of promotions. In May 2010, he was diagnosed with depression. During a period of time off work, he received treatment for his condition, before a phased return in September 2010. However, the return to work was unsuccessful and the Claimant was again signed off work due to depression. The Claimant claimed damages for psychiatric illness and consequential loss, alleging that the depression was brought on by work-related stress caused by the negligence and/or breach of statutory duty on the part of his employer. The Claimant referred in particular to the lack of a general risk assessment by the employer, which he argued would have given them the requisite knowledge to foresee the damage he suffered.
The judge identified the threshold question to consider as: whether it was reasonably foreseeable that the Claimant risked suffering psychiatric or other harm as a result of stress at work. He referred to the case of Hatton v Sutherland and in particular to the following principles:
- Foreseeability depends on what the employer knows, or ought reasonably to know, about the individual employee. This may include:
- the nature and extent of the work done by the employee, as compared to others in similar roles, or whether the relevant role is particularly physically or emotionally demanding for that employee; and
- any signs indicating impending harm to health, or particular problems or vulnerabilities (e.g. recent absences which the employee or others in similar roles have indicated may be due to stress at work).
- Absent contrary indications, the employer is generally entitled to take the employee's representations, including a return to work, at face value, and need not make searching enquiries.
It was held that the Claimant's initial period off work had not been foreseeable to B&Q. The Claimant had maintained a 10-year career managing large retail outlets, with no history of mental health problems. He did not display any outward signs that he was at risk of mental illness. Nor was B&Q aware of any other managers in similar roles developing comparable problems as a direct result of work-related stress.
By the time the Claimant returned to work, B&Q was aware that the Claimant had suffered psychological harm, but the Claimant had returned to work and, therefore, was demonstrably fit to undertake his previous role. B&Q knew that the Claimant was taking medication at this stage, but this was not sufficient to put them on notice of a relapse, as many people carry out a job whilst on medication. It was further held that, on the facts, a risk assessment would not have made any difference to the outcome. The Claimant did not respond to a document that he was given by B&Q requiring him to notify his employer if he was experiencing stress. On that basis, the judge concluded that a wider risk assessment would not have made a difference.
This case reminds us that the threshold for liability in stress cases remains high. It is not enough to show that an employee has been under stress and that the employer knew, or ought to have known, about it. Rather it will be necessary that the employer's knowledge (or the knowledge that they reasonably ought to have had) led them to foresee the specific type of harm suffered by the employee as a result of workplace stress.
What is particularly striking in this case is that the Claimant's relapse was not held to be foreseeable despite his previously being signed off as unfit to work. However, the judge did seem to accept that B&Q's knowledge of the Claimant's vulnerabilities at this stage required more careful treatment of him.
This case confirms that employers are not expected to make in-depth assessments of their employees' mental health in order to avoid liability for work-induced stress. However, monitoring frequent absences, pre-employment occupational health checks and providing appropriate channels for employees to report feeling stressed are good ways to ensure you have the knowledge you "ought to have" and to identify when a real risk of stress-induced harm arises.