Robert Spicer draws together some key cases in the area of workplace stress.
The law related to workplace stress continues to develop. The main issues for consideration in cases of alleged illness caused by workplace stress are:
whether the employee has suffered damage to health as a result of workplace conditions
the extent of medical evidence in relation to the above
whether the employer knew or ought to have known that workplace conditions were damaging the health of the employee and failed to take steps to deal with this
whether there are external factors that have contributed to the employee’s illness
the application of the general principles of common law negligence, ie a duty of care, breach of that duty and resulting damage.
The most recent example of the development of these issues is the Court of Appeal case of Brown v London Borough of Richmond upon Thames (2012).
B claimed compensation from L for work-related stress. At first instance, his claim succeeded. The judge found that B had suffered stress associated with his work that had harmed his mental health and led to a breakdown at the end of June 2003. B was awarded £25,000 for moderately severe psychiatric harm and £4891.42 for loss of earnings up to 30 June 2004.
The main point of the appeal was the cut-off date for the award for loss of earnings. On B’s behalf, it was submitted that the award should have continued beyond that date. Another issue was the relationship of the stress at work aspect to the fact that, during the relevant period, B suffered the traumatic breakdown of his marriage.
Background to the case
B started his employment with L in 1965. He was promoted to Operations Manager of the Parks and Open Spaces Department. He retired in May 2004 on the grounds of ill health. His last working day was 30 June 2003 when he suffered a mental breakdown. The judge found that the effect of L’s negligence was limited to 12 months from his last working day and that the causative effect of any breach of duty ceased at the end of 2004, being superseded from that point by the effects of the breakdown of his marriage.
In January 2000, B told R, his manager, that he had seen his GP and complained of headaches and heart palpitations. R said that she would refer this to L’s occupational health unit. She did not do so.
In October 2002, B’s GP wrote to R, stating that B’s physical and mental health were suffering as a result of the ongoing and difficult work environment. This letter was not shown to R until December 2002.
In January 2003, a risk assessment was carried out by R and an action plan was drawn up to minimise risks to B’s health. This was not put into effect.
In August 2003, B’s wife told him that she had formed a relationship with another man. She left the matrimonial home in October 2003.
The judge also found that when B’s GP wrote to R, L should have foreseen that B was at risk of psychiatric harm associated with his work. L was also at fault for failing to implement the action plan.
Court of Appeal decision
B appealed to the Court of Appeal. That court made the following points.
The breach of duty by L started in early 2003, as found by the judge. The evidence of what information was, or should reasonably have been, available to the employer at an earlier date was not of such a compelling nature as to lead to the conclusion that the judge had been wrong in this respect.
The overall test was the conduct of a reasonable and prudent employer taking positive thought for the safety of its workers in the light of what it knows or ought to know.
The appeal would be allowed in relation to the issue of loss of earnings from 30 June 2004. The judge had not conducted a careful analysis, which a complicated issue of this sort required. There was also medical evidence that B was unfit for work in late 2007 and that he would not be fit for work until six months after the end of litigation. That issue would be remitted to the judge for further consideration of the impact of the breakdown of B’s marriage.
The Brown case is the latest in a long line of decisions that is generally recognised as having started in 1990 with the case of Johnstone v Bloomsbury Health Authority, involving the hours worked by hospital doctors, where the Court of Appeal ruled that employers are under an implied duty to take reasonable care not to injure their employees’ health. This applies to physical and mental health.
Practical propositions for claims concerning stress
The landmark decision in this area of law is Sutherland v Hatton and Others (2002), where the Court of Appeal ruled that the general principle is that employers should not have to pay compensation for stress-induced illness unless such illness was reasonably foreseeable. Employers are normally entitled to assume that employees can withstand the normal pressures of a job.
The court set out a number of practical propositions for future claims concerning workplace stress, including the following.
Employers do not have a duty to make searching enquiries about employees’ mental health. They are entitled to take what they are told by employees at face value unless they have good reason to disbelieve employees’ statements.
Indications of impending harm to health at work must be clear enough to show an employer that action should be taken in order for a duty on an employer to take action to arise.
Where an employee wishes to remain in a stressful job, and the only alternative is demotion or dismissal, the employer is not in breach of duty in allowing the employee to continue.
No type of work may be regarded as intrinsically dangerous to mental health.
Employers that offer confidential counselling advice services, with access to treatment, are unlikely to be found in breach of their duty of care in relation to workplace stress.
The amount of compensation will be reduced to take account of pre-existing conditions or the chance that the employee would have become ill in any event.
Last reviewed 26 June 2013
In the July edition of HSW we looked at the basic requirements for stress awareness and management in the workplace, in line with the HSE's stress management standards - click here.
In this issue we follow up with a review of the most important common-law cases which have been brought to court as a result of poor stress risk management.
The NEBOSH Diploma syllabus - Element B9: Psycho-social agents - highlights the following cases as examples:
- Walker v Northumberland County Council (1995)
- Sutherland v Hatton and others (2002)
- Barber v Somerset County Council (2004).
Candidates are expected to be able to outline the legal obligations and case law relating to work-related occupational stress and are also expected to show how the cases have been reflected in the stress management standards.
Walker v Northumberland County Council (1995)
This case is notable as one of the first successful claims for work-related stress. Mr Walker was employed by Northumberland County Council as a senior social worker. At the time of the case, he had worked for the authority for 17 years, dealing mainly with cases of child abuse. In the 1980s, his workload gradually increased to such an extent that in 1986 he suffered a nervous breakdown. This was diagnosed by his GP who recommended time off work to recover.
On his return to work, Walker discussed his situation with his employers and told them that, for him to function normally, his caseload/workload needed to be reduced. He was promised extra resources to help.
Initially, he was given an assistant, but this apparently did not help to any great degree, as he suffered a second breakdown six months later. This resulted in his being dismissed on the grounds of permanent ill health - which probably added to his stress levels.
As a result of this dismissal following the second nervous breakdown, Walker claimed compensation from his employer, claiming that they were in breach of their common-law duty of care to provide a safe working environment.
He was successful in his claim on the grounds that his employer had been made aware that he was under extreme pressure at work, witness the initial nervous breakdown.
A key question in the case was whether Walker's risk of mental illness was materially higher than that which would normally adversely affect a senior social worker with a comparable heavy workload.
The council was not held liable for the first nervous breakdown, as the court held it could not have reasonably foreseen that Walker was being exposed to a significant risk of mental illness through his job.
But once the initial nervous breakdown had been diagnosed by his GP - and was cited on various sick notes - the employer should have responded to the problem quickly following the second breakdown. Indeed, the employer (the council) should have appreciated that Walker was more vulnerable to further damage than he had been before his first breakdown.
They were liable for the second breakdown, given that the circumstances that resulted in the second also caused the first; that is, the second breakdown was a reasonably foreseeable risk because of the evidence of the occurrence of the first.
So the council was found to be in breach of its common-law duty of care in failing to provide a safe working environment for Walker.
It was held that it didn't provide effective support to alleviate his mental illness and it was judged reasonable that he should have been provided with suitable assistance with his caseload following his return to work after the first breakdown, but this did not happen.
The case highlights the need for employers to be fully aware of when and why employees are diagnosed with work-related stress, and to be very vigilant and caring in managing rehabilitation on their return to work. It is, in essence, a case of once bitten, twice shy.
It could be argued that there is an increasing common law duty of care to protect the more vulnerable employees - such as those who have suffered a nervous breakdown and/or stress-related illness - over and above the rest of the workforce.
Sutherland v Hatton (2002)
This case deals with the question of reasonableness in relation to harm from work-related stress.
In February 2002, the Court of Appeal (CA) heard four appeals by employers against compensation awards to employees who had suffered stress-induced psychiatric illnesses.
The CA overturned three of the four stress claims and quashed the awards for damages initially given in the High Court. The CA ruling stated that, for a compensation claim to be successful, it must first be reasonably foreseeable to the employer that the employee concerned would suffer a psychiatric illness as a result of work stress - as in Walker v Northumberland CC after the first nervous breakdown.
The CA ruled that the general principle to be adopted was that employers should not have to pay compensation for stress-induced illness unless it was reasonably foreseeable. Employers are normally entitled to assume that employees are able, physically and mentally, to withstand the normal pressures associated with their work, except where they are aware of a particular problem or vulnerability, such as a previous stress-related absence.
In deciding whether a risk is foreseeable or not, the following factors need to be taken into account:
- the nature and extent of the employee's work - is the workload greater than that normally expected for this type of job?
- signs from the employee themselves of impending harm to their health from work-related stress - has the employee previously suffered any stress-related harm, for example, as in the case of Walker?
The CA ruling went further by stating that employers are entitled to take, at face value, what they have been told by their employees about the adverse effects of work-related stress on their mental health, unless they have good reason to disbelieve any employee's statement. But they do not have a duty to make searching enquiries about employees' mental health.
For example, if an employee has been absent from work as a result of work-related stress but hasn't told the employer why they were absent, it would be reasonable for the employer to expect the employee to be fit to return to their normal tasks.
The CA set out factors - the key ones are listed below - that must be taken into account by the courts once it has been established, on the balance of probabilities, that it was reasonably foreseeable that an employee would suffer harm as a result of work-related stress.
- Employers are only in breach of their duty of care if they fail to take reasonable steps to prevent employees suffering as a result of work-related stress (that is, fail to follow the stress management standards).
- Where an employee wants to remain in a stressful job, and the only alternative is dismissal or demotion, then the employer is not in breach of duty in allowing that employee to continue in the post.
- Indications of impending harm to health must be plain enough for any reasonable employer to realise and subsequently take action to alleviate the stressful situation.
- When considering what actions are reasonable for an employer to take to further reduce the risk of harm from work-related stress, the size and resources of the employer's organisation may be taken into account, together with the size of the risk to health, the gravity of the impending harm, the cost of preventing the harm, and any justification for taking the risk.
- It's not enough for the claimant (injured person) to show that they are suffering harm as a result of work-related stress; they must be able to demonstrate that their injury/illness was caused by the employer's breach of their duty of care by failing to take reasonable steps to protect the employee.
- No type of work may be seen as intrinsically dangerous to mental health.
- If an employer offers a confidential stress counselling service for employees who experience stress at work, which includes referrals to treatment services, they will be unlikely to be found in breach of their duty of care to protect against workplace stress. (This has been qualified by later judgments.)
- The amount of compensation payable will be reduced to take account of pre-existing conditions, or the chance that the employee would have suffered mental illness in any event.
The CA ruling places more responsibility on the individual employee to let their employer know if they are suffering from symptoms of work-related stress, rather than leaving it totally to the employer to identify whether or not they are a stressed employee.
All this means that, in practice, an employee is unlikely to have a valid claim unless they can demonstrate that they have told their employer that they are suffering, or suspect they are suffering, from work-related stress.
But this proviso doesn't take away the employer's legal duty to take proactive measures, such as stress risk assessments, to identify stress risk factors in the workplace, and to implement control measures to minimise such risks by adopting the stress management standards.
The four cases that the CA dealt with involved:
- Penelope Hatton, a school teacher who had previously been awarded £90,000 compensation for depression and debility. Her employer's appeal was allowed on the grounds that her workload was no greater than that of her colleagues and her absences could be subscribed to factors other than work-related stress.
- Olwen Jones, a local authority employee, who had suffered from depression and anxiety as a result of overwork. It was foreseeable, in this case, that her workplace conditions would cause harm; so the employer's appeal against an award of £150,000 compensation was dismissed.
- Leon Barber, a teacher, who developed symptoms of depression and was awarded compensation of £100,000. His employer's appeal was allowed on the grounds that the claimant (Barber) hadn't told his employer about his illness until after he suffered a nervous breakdown.
- Melvyn Bishop, a factory worker, who was awarded £7000 compensation as a result of a nervous breakdown and attempted suicide. His employer's appeal was allowed because the CA ruled that the demands of his work had not been excessive.
The ruling in the Barber case was further used in the case of Pratley v Surrey County Council (July 2003) when a stress compensation claim made by Ms Pratley, a care manager, failed because she had not told her employer that she was feeling under pressure.
Barber v Somerset County Council (2004)
The Barber case, one of the four heard by the CA in February 2002, was taken to the House of Lords in April 2004 and led to more significant rulings.
Barber was a maths teacher at East Bridgewater Community School and made a claim for compensation as a result of suffering a mental breakdown which he attributed to the pressures and stresses of his workload. He was initially successful in his claim and was awarded £91,000 for loss of earnings and £10,000 for pain and suffering and loss of amenity.
Somerset County Council took the case to the CA on the advice of its insurers and was successful in overturning the decision. However, Barber was the only one to appeal the CA's decision to the House of Lords and, on a majority of four to one, the CA decision was overturned. The compensation awarded was reduced to £72,000.
It's important to note that the lords broadly supported the guidance given by the CA on dealing with stress cases and the principles established by the CA are/were still valid.
The significant rulings resulting from the Barber case were:
- unless the employer knows of some individual problem or vulnerability, they are usually entitled to assume that the employee is capable of coping with the normal pressures of the job
- employers are generally entitled to take what they are told by, or on behalf of, the employee at face value
- an employee who returns to work after a period of sickness absence without further disclosure or explanation to their employer is usually implying that they believe they are fit to return to the job.
The lords' decision that Barber's employer was in breach of its duty of care by
failing to take steps to lessen work-related stress that led to psychiatric illness was based upon the following facts:
- the employer should have taken control action after Barber had separately informed each member of the school's management team of the pressures and stresses he was experiencing at work (risk identification, not control)
- Barber was treated unsympathetically after his return to work following a three-week absence (lack of rehabilitation and counselling)
- no attempt was made to reduce his workload on his return to work and he subsequently suffered a nervous breakdown (lack of proper information)
- there was a breach of the employer's duty of care because of its lack of action (no control)
- Barber's ill health was foreseeable (lack of occupational health provision).
The House of Lords' and CA's judgments gave useful guidance to employers, with practical steps that should be taken to manage the risks to health posed by work-related stress. These steps have now been incorporated into the HSE's stress management standards.
For an employee to succeed with a compensation claim for work-related stress, the employer must have been able reasonably to foresee that the employee would suffer mental illness which could be attributable to work-related stress.
This, in turn, will depend on what the employer knows, or ought to reasonably know, about the individual employee and the symptoms of their illness.
However, the employer should always be prepared to seek medical advice to clarify the nature of the illness, together with advice on appropriate control actions, such as those outlined in the management standards.
This article was prepared on behalf of the National Examination Board in Occupational Safety and Health (NEBOSH) by Lawrence Bamber, BSc, DIS, CFIOSH, FIRM, MASSE