The important guidance in Hatton v Sunderland for claims arising from stress at work was considered and applied by the Court of Appeal in Dickens v O2 plc. In this case, O2 brought an appeal against the finding of a High Court judge that a former employee was entitled to damages for psychiatric injury caused by excessive stress caused largely by her employment as a regulatory finance manager. Ms Dickens was originally a secretary but had proved so good and hardworking that she was promoted to be a management accountant, despite lacking formal qualifications. However, she showed early signs of stress and complained on several occasions about not receiving the training or support she was promised. Her GP prescribed counselling following her being diagnosed with IBS but her workload continued to be extremely heavy. She repeatedly complained of excessive fatigue and of being unable to cope. It was suggested that she contact the counselling service available to staff. On 23 April 2002 she saw her line manager and asked for a sabbatical. She said she was drained of physical and mental energy and was ‘stressed out’. She did not know how long she could carry on before she was sick. At her appraisal she complained again of stress and her line manager made a referral to occupational health but Ms Dickens did not hear from them. Finally she was signed off as unfit for work on account of anxiety and depression. She never returned to work and her employment was terminated. She brought proceedings claiming damages for personal injuries caused by stress at work.
The Court upheld the high court’s finding that O2 were largely to blame for Ms Dickens’s illness. It considered the following:
- reasonable foreseeability: O2 claimed that Ms Dickens’s evidence had not gone far enough to put it on notice that, unless something was done, it was foreseeable that her health would break down. The Court disagreed, stating that her allegations of incidents of negligence were background history but the 23 April meeting was crucial as she then spelled out the seriousness of her condition.
- Breach of duty: O2 argued that it had offered a counselling service. The Court said this was irrelevant; she was already receiving counselling from her GP and the mere suggestion that she seek counselling could not be considered an adequate response in the circumstances.
- Causation: the test is to identify the breach of duty and decide whether the breach had made a material contribution to Ms Dickens’s ill health. Such a finding was inevitable.
- Apportionment: the Court indicated there should be no across the board percentage reduction to damages for the contribution to the illness by other causes.
This case serves as a sharp reminder to employers to be alive to signs of stress among its staff and not to simply rely on counselling or other services which it may provide as a means of sidestepping liability. Counselling may indeed be appropriate in some cases; but not in all. When an employee makes it clear that he is not coping, measures should be taken to alleviate the causes of stress.