MacLennan v Hartford Europe Ltd 24.02.12

On 24 February 2012 we were successful in defending a claim for work place stress in the High Court. The claim (for £1.25 million, including a loss of lifetime earnings) was brought by the HR manager of a large American finance company, who alleged that she had sustained chronic fatigue syndrome (CFS) as a result of work place stress. In MacLennan v Hartford Europe Ltd, following a two-week trial with nearly 100 lever arch files of evidence which included some 20,000 pages of emails, Mr Justice Hickinbottom held that there was no proven causal link between stress and CFS and, even if there had been, the Claimant employee had failed to establish that the Defendant was ever placed on notice that she was at risk of suffering imminent harm to her health.

We were also successful in arguing that the Claimant (who was funded by a CFA backed by ATE insurance) pay indemnity costs for the final year of the litigation due to the way the litigation had been conducted, as well obtaining an order for an interim payment of costs of £250,000 to be paid within 28 days.

The Claimant’s case was that over the course of 14 months of her employment with the Defendant she had to work excessive hours, at one stage up to 90-95 hours per week, and that she had to deal with two senior directors who were ‘having a turf war’. She contended that she had been unsupported in her role, as HR manager for the Defendant’s start-up London office by her direct line manager, the HR director, who was described by the Claimant and several witnesses as “fluffy”.

The Claimant also alleged that she had been suffering from constant colds and infections since March 2005 until she went off sick on permanent sick leave in January 2006. As a result of the claimed overwork and unbearable work pressure generally, her medical experts gave evidence that the Claimant’s immune system was undermined by the stress she was suffering which culminated in her suffering chicken pox whilst on holiday in September 2005 which in turn triggered her CFS in late 2005/early 2006.

Mr Justice Hickinbottom held that the contemporaneous evidence proved that the Claimant was an unreliable witness who, whilst giving her honest best, had “unfortunately if innocently, recast history in a number of significant respects”.

The case was defended on the basis that there was no causal link between the alleged stress and CFS as well as the lack of any foreseeability of any imminent risk harm to the claimant in the form of CFS or any other psychological injury.

The documentary evidence in the form of contemporaneous emails indicated that the Claimant was prone to exaggerate and supported the Defendant’s contention that, whilst she was busy and working hard, she repeatedly said that she was enjoying her job and had a good working relationship with her HR director and was well supported by the rest of the business.

The Claimant’s case on medical causation was described by the Judge as “bold”. Where there was divergence between the Claimant’s medical experts’ (Drs Weir and Winbow) and the Defendant’s expert (Professor Cleare), the Judge preferred the evidence of Professor Cleare who was a key member of the CFS Working Party which produced the leading paper on CFS.

Stress at work claims are difficult for claimants to prove. To increase the chances of successfully defending such claims, there are a number of steps that employers should consider:

  • All email files should be retained (both those sent and received). These are crucial for demonstrating working practices and providing context to the issues arising, especially any illness or sickness.
  • The task of searching emails over many years can be daunting. Consider using electronic search systems to complement the discovery process.
  • The Claimant’s credibility in such cases is likely to be key. It is therefore necessary to ensure thorough discovery of all relevant documents to assess the reliance that the court is likely to place on the claimant as a witness.
  • Ensure speaking to your own potential witnesses as soon as possible whilst the matter is still fresh in their minds. It is also important to make an accurate assessment of their credibility and reliability at an early stage.
  • Make sure you obtain all of the medical records and review the same, and ensure you select and instruct the right expert.