The Court of Appeal in Dickins v O2 plc, decided that O2 were liable for stress induced personal injury suffered by one of its employees, even where the employee had not been signed off work prior to suffering a breakdown.
The Court applied the guidance set out in Hatton v Sutherland, but its decision appears to have made it easier for an employee to succeed in claiming against an employer for stress at work.
Employers need to be mindful of their duty to assist employees suffering from stress and should take responsibility in doing so, rather than leaving it up to the employee to take action. In exercising their duty, employers must act swiftly in responding to complaints or behaviour from employees which could indicate they are suffering from stress.
The Claimant in this case was employed by the Respondent as a Regulatory Finance Manager during 2001 and 2002 and was bringing a claim against her employer for psychiatric injury negligently caused by excessive stress in the course of her employment.
She claimed to have expressly warned her employer that she was having difficulty in coping with some parts of her job and was "at the end of her tether" in April 2002. Further, she argued that her employer, in breach of its duty, had failed to relieve her situation and as a result her health had broken down.
O2 argued that they had not received express warnings from the employee about an impending breakdown. They were of the opinion that it was for the employee to decide whether to see her doctor and to take a period of sick leave if she thought she was unfit for work. They also stated that they provided a counselling service and that her manager had recommended it to her.
The Court of Appeal dismissed O2's appeal on the basis that the facts suggested the Claimant had provided O2 with a clear indication of impending illness, which in turn placed the employer under a duty to take action.
They looked in particular at four limbs of the guidance handed down by Hatton and have arguably lessened the requirements which Claimants must satisfy in order to succeed in personal injury claims against their employer on stress grounds:
- Reasonable foreseeability: The employee was held to have done enough to put the employer on clear notice that it was foreseeable her health would break down, unless something was done. Her actions included complaining to her employer about the stress of her job; regularly coming into work late; and telling her line manager that she did not know how long she could keep going before she would become ill.
- Employer's breach of duty: O2's suggestion to the Claimant that she could get confidential counselling was not sufficient to fulfil their duty towards her. An employer could still be in breach notwithstanding it provided a counselling service, where employee's problems could only be dealt with by management intervention. Instead they could have sent her home and instructed occupational health to look into the situation. It could not be said that it was up to the employee to decide to take sick leave so as to seek help. The Judge held that once the employee told management of her stress, some responsibility passed to the employer.
- Causation between the employer's breach of duty and the illness: The employer's breach must make a material contribution to the employee's ill-health. In this case it was said that the employee tipped over the edge from suffering from stress into complete breakdown as a result of the employer's breach.
- Apportionment of damages: Employers can be liable for the whole of the injury, despite only part of it being caused by factors within the workplace.