A recent Court of Appeal decision may mark a slight shift away from the rather robust approach taken in Sutherland v Hatton to the circumstances in which a duty of care arises for personal injury suffered as a result of work-related stress. Sutherland suggested that a duty of care would only arise where the employer knows, or ought to know, that a particular employee is suffering from stress because of his working environment. Employers needed to be vigilant but they were entitled to take an employee's actions at face value. However, the Court of Appeal disapplied this aspect of the Sutherland guidance and held in Intel Corporation (UK) v Daw that whilst an employer may generally take an employee's behaviour at face value, in this particular case, it should have probed further when the employee informed her employer that she was stressed and having violent mood swings. Further, the Court of Appeal has confirmed that the simple fact of provision of a confidential help or counselling service will not be sufficient in all cases to discharge an employer's duty of care. Intel had sought to rely on a statement in Sutherland v Hatton that an employer who has in place a system of confidential help and counselling is "unlikely to be found in breach of duty". A vigorous assessment of the facts of any particular case will be required to determine whether the provision of such services would assist an employer to discharge its duty of care in that particular case. Employers can not expect that the mere provision of a confidential counselling service will automatically discharge their duty of care. (Intel Corporation (UK) v Daw)

In another employee-favourable decision, the High Court recently held that a health visitor who suffered a complete nervous breakdown after bursting into tears at her performance review had suffered injury as a result of foreseeable stress at work. Damages of £62,000 were awarded even though the individual had only worked for the company for two and a half years. (Hiles v South Gloucestershire NHS Primary Care Trust).