The Court of Appeal, in the case of Dickins v O2, has given guidance which will assist employers in understanding the steps to take to avoid liability for stress at work claims. The case is important because the Court of Appeal has made it clear that in cases of severe stress it is not enough for an employer to provide access to a confidential counselling helpline or to refer an employee to an occupational health professional. It is likely that a more interventionist approach to managing stress is required of managers and HR professionals following this case.
What happens in this case?
The Claimant, Ms Dickins, was employed as a secretary for the Appellant, O2 plc in 1991. She had a good work record and had progressed to the position of regulatory finance manager. She had told O2 on a number of occasions that she needed help with her work but insufficient help had been provided. At the end of the February 2002 audit, she was exhausted. In March, she asked for a less stressful job and was told to hold on for 3 months. At a critical meeting on the 23 April, she asked for a “sabbatical” and told her manager, in effect, that she was at the end of her tether. She described an inability to drag herself into work which was quite uncharacteristic of her. Nothing was done; she remained at work and her state of exhaustion continued. On 30 May, she repeated her request for a sabbatical and repeated her description of her condition. At that stage she was referred to occupational health but not as a matter of urgency and within a few days she was completely unfit and unable to work. She was signed off work for anxiety and depression and her employment was eventually terminated in November 2003.
She brought a claim in the County Court for psychiatric injury negligently caused by excessive stress and was awarded damages in excess of £100,000. She succeeded in that claim and O2 appealed to the Court of Appeal (“CA”) arguing that the County Court Judge had misinterpreted the law, (the main authorities being Hatton v Sutherland (2002) and Barber v Somerset County Council (2004)).
1. Reasonable foreseeability – O2 argued they were not be liable because it was not reasonably foreseeable that Ms Dickens would suffer injury to her health from stress at work. The CA notes that Hatton, the leading case on workplace stress claims, made it clear that there must be “signs of impending harm to health” before an employer can be liable for a stress claim. The signs must be plain enough for any reasonable employer to have realised that a person would “go over the edge” due to stress and suffer an injury to health unless the employer takes appropriate action to alleviate the stress. The CA accepted that such signs were present in this case. The employee had previously complained about the stress of her job, was coming into work late and had told her line manager on 23 April that she did not know how long she would keep going before she became ill. Further, they rejected O2’s argument that it is up to an employee to manage their own stress at work. The CA noted that if that were the case, no stress claims would ever succeed.
2. Breach of duty - O2 claimed that they could not be liable because they had offered Ms Dickens access to a confidential counselling advice service. Hatton suggested that an employer is unlikely to be in breach of their duty to an employee where they provide access to such a service. The CA said that providing access to a counselling service is only an advantage where employees are unwilling to admit to their own line manager that they are unable to cope. The CA said in a case such as this, where the employee admits the problem and describes the severe symptoms she is having, providing access to counselling is not enough. The CA said that O2 ought to have intervened and sent the employee home on full pay pending investigation by occupational health.
What this decision means for employers?
This case makes it clear that if an employee complains about stress, it may not be enough to just provide confidential counselling, or make a referral to occupational health, to discharge the employer’s duty of care. Where it is obvious that an employee’s health may be harmed by stress at work, an employer must take a more interventionist approach. This is likely to involve tackling the root cause of an employee’s stress, and vigorously managing attempts to remedy stress at work. This case is controversial because the CA upheld the Judge’s decision that O2 should have sent the employee home, even against her will, pending urgent investigation by occupational health into her concerns. Avoidance is always better than cure so it is vital for all employers to have an adequate stress and bullying policy and, most importantly, to train managers to recognise stress, to identify symptoms and how to act appropriately when symptoms are identified.