Stress at work has become a significant problem for both employees and employers. With the increased concern over job security caused by the current economic climate, employers may find that more employees suffer from workplace stress. A recent case has considered again what an employee needs to show in order to be successful in his or her claim against the employer in respect of ill health arising from stress in the workplace. This edition of employment highlights considers what amounts to workplace stress, the recent case of Dickens v 02 plc and what employers should do to avoid such claims.  

What is workplace stress?  

Workplace stress can arise for different reasons: employers placing excessive demands upon their employees, bullying or harassment at work. The problem for employers is that every employee will react differently to the working environment and therefore employers cannot guarantee that their workplace will be “stress free”. The Health and Safety Executive (HSE) has identified seven categories of risk factors for work related stress. These are the demands of the employer; control; relationships between employees; changes; role; and support (training and factors unique to the individual). Even if an employer carries out a risk assessment in relation to all of these factors, it may well still find that an employee has a claim for work related stress. Such a claim may arise under health and safety legislation, under the Disability Discrimination Act 1995, for constructive unfair dismissal where he or she has been forced to resign, or, at common law, for personal injury. It is this last claim which is considered in this edition of highlights.  

Liability for psychiatric injury  

Claims for personal injury can arise in respect of psychiatric as well as physical injury. An increasing number of claims have been brought against employers by employees who have suffered psychiatric injuries owing to stress at work. In the case of Sutherland v Hatton [2002] IRLR 263, the Court of Appeal set out guidelines determining an employer’s liability for psychiatric injury.  

The harm must be reasonably foreseeable  

An employer will not be liable to an employee in respect of employee psychiatric injury unless it was reasonably foreseeable that such an injury would occur. Foreseeability is harder to prove in respect of mental conditions than physical injury, and it will also depend upon the particular individual. Unless it is clear that an employee had a particular vulnerability, an employer can assume that an employee will be able to cope with normal job pressures. The Court did however list a number of factors likely to be relevant in establishing foreseeability.  

  • the nature and extent of the work done by the employee;
  • whether the employee’s workload is greater than normal;
  • whether the demands being made of the employee are unreasonable when compared with demands of others in comparable jobs;
  • whether there are signs that others doing the same job are suffering harmful levels of stress including
  • whether there is an abnormal level of sickness or absenteeism;
  • whether there are signs from the employee of impending harm to health;
  • whether the employee has a particular problem of vulnerability;
  • whether the employee has already suffered from illness attributable to stress at work; and
  • whether there have been recent prolonged or frequent absences that are uncharacteristic to the employee.  

The Court’s view was that there are no occupations so intrinsically stressful that psychiatric injury is always reasonably foreseeable. Therefore, an employer needs to consider all the points raised above in considering whether it would have been reasonably foreseeable that psychiatric injury would occur.  

Steps to be taken  

Once the employer is on notice that there is a potential stress-related illness, then it will need to take remedial steps. An employer will only be in breach of his duty if he fails to take steps which are reasonable in the circumstances. The types of steps which could be taken are sabbaticals, redistributing work amongst colleagues, and providing access to confidential advice services. It is important that an employer balances the steps to be taken and an employer will not be expected to redistribute work at the expense of another employee. In relation to the provision of a confidential advice service, the Court stated in the Hatton case that where an employer offers such a service to employees suffering stress then it is unlikely to be found to be in breach of its duty. However, this part of the guidelines was considered in the case of Dickens v O2 Plc [2008] EWCA Civ 114.  

In the Dickens case, the Court of Appeal recently considered the guidelines set out in Hatton. An employee was promoted to various different positions within the finance management of 02 Plc. She did not receive the expected training or support and in November 2000 was off sick for two days. She continued to be off sick for various different reasons during 2001 and was promised additional training and was left to do an audit in February 2002 alone. In March 2002 she requested a less stressful job and was asked to wait for three months as there were no vacancies. In April 2002, she told her manager that she was “stressed out” and asked if she could take six months off. She was told that she would be able to use the counselling service provided by the company but, as she was already receiving counselling she did not do so. At her appraisal in May of that year she repeated the description of her symptoms and suggested that she be signed off sick. Although it was suggested that she should be referred to the occupational health department it was not acted upon. Shortly after her appraisal, she was signed off work on the basis that she was unfit on account of anxiety and depression. She did not return to work and her employment was terminated in November 2003. In June 2005 she brought a claim for damages for personal injury. The county court judge held that her employer was liable for psychiatric injury in that it had caused her to be under excessive stress between 2001 and 2002. The employer appealed to the Court of Appeal. The grounds of appeal fell into three main topics: reasonable foreseeability; breach of duty and causation.  

Reasonable foreseeability  

The employer argued that it had not been clear to them that unless something was done it was foreseeable that the employee’s health would break down. The Court of Appeal held that the judge had shown a clear appreciation of the difference between stress and stress-related illness and the fact that an employer must have clear indications that a person is “about to go over the edge”. In this particular case the Court of Appeal held that the judge had strong enough evidence to conclude that the employer had received a clear indication of impending illness in that the employee had been complaining of difficulties over a period of time.  

Breach of duty  

One of the points raised in relation to the issue of breach of duty was the fact that the judge had failed to consider the point that the employer had offered its employees a counselling service. It relied on the guidance in Hatton which suggested that an employer who offers the confidential advice service was unlikely to be found in breach of duty. The Court of Appeal pointed out that in the Hatton case, the Court was making it clear that the desirability of a counselling advice service was in a situation where an employee was unwilling to admit to her line manager that he was not able to cope. In this case the employee had not been afraid to tell her manager that she was “at the end of her tether”. In a situation such as this, where the employee was describing severe symptoms and clearly indicating that they were due to stress at work, then a simple response that she should seek counselling could not be regarded as sufficient to discharge the employer’s duty. In addition, the Court of Appeal referred to the case of Daw v Intel Corporation [2007] ICR 1318 in which the Court of Appeal made it clear that the reference to counselling services in Hatton did not make such services a remedy by which employers can discharge their duty of care in all cases. In the Daw case the judge had been entitled to hold that the employer was in breach of duty notwithstanding that it provided a counselling service because the employee’s problems could only be dealt with by management intervention. The same was true in the Dickens case.  

The second point raised in relation to breach of duty was that the judge had not considered appropriately what the employer ought to have done at each stage. On a couple of occasions, the employee raised various possibilities, such as her being sent home. One of the issues was whether the employee is in the best position to decide whether to continue working. The judge was entitled to take the view that after the employee had told management about her condition then some responsibility must pass to the employer.  

Causation  

Another difficulty with psychiatric illness is the extent to which the breach of duty by the employer contributes to the employee’s ill health. The Court of Appeal was clear that there were other factors to consider such as the individual’s vulnerable personality, her relationship with her partner and a physical illness which contributed to her mental ill health. The Court of Appeal did however go on to say that the judge had correctly identified the breach (the failure by the employer to take any action following a meeting in April 2002 as a result of which the employee was then off work) and that this had made a material contribution to the onset of the illness. The apportionment issue was not dealt with on appeal. Following guidance given in the Hatton case, the judge had taken the other matters into account in apportioning the damages as to 50 per cent being due to the breach and 50 per cent due to non tortious factors. The Court of Appeal stressed that the difficulty in relation to apportionment lies in determining to what extent the damage has made a material contribution to the injury. In a number of circumstances it is inappropriate to attempt to assess the percentage effect of the tort as a basis for apportionment for the whole of the damages. However, this point was not raised and therefore was not considered further by the judges.  

What should employers do?  

The Court of Appeal’s decision in Dickens seems to indicate that the guidelines in Hatton may not be as difficult for the employee to surmount in practice as a strict interpretation of Hatton might suggest. Employers therefore need to be particularly aware in relation to psychiatric illness of the following:  

  • If an employee’s words and actions have made it clear over a period of time that there is a risk to his or her health then the cumulative effect may be sufficient to alert a reasonable employer to the risk of illness and foreseeability will therefore be established.
  • Management should therefore be trained to assess the reasonable foreseeability of psychiatric illness and the warning signs from employees.
  • In considering the steps which need to be taken, management should take advice as to what proposals should be followed.
  • Management should not simply rely on confidential counselling. Often management intervention will be required in addition to any counselling and this could involve sending an employee home, making a specialist referral to an occupational health department, or considering other steps to alleviate the stress.