Free Employment Advice - Foreseeability: Leading Case

• Claims by employees for compensation for psychiatric injury caused by workplace stress should be considered in accordance with the ordinary principles of employers’ liability.

• The same test should be applied in all cases, whatever the employment.

• The test was whether the kind of harm to the particular employee was reasonably foreseeable and, once the risk of harm to health from workplace stress was foreseeable, whether and in what respect the employer was in breach of his duty to take reasonable care, and whether that breach of duty had caused the harm suffered.

Facts:

In four separate actions, claimant employees were awarded compensation against their employers for illness caused by stress at work. The employers appealed. The facts of each case were as follows:

Hatton

Ms H was a teacher who retired on grounds of depression and debility. She was awarded £90,000 damages.

Barber

Mr B, a teacher, developed symptoms of depression. He was awarded £100,000 compensation.

Jones

Ms J was a local authority employee who suffered from depression and anxiety as a result of overwork. She had been awarded £150,000 damages.

Bishop

Mr B, a factory worker, was awarded £7000 compensation following a nervous breakdown and attempted suicide.

Decision

1. The first appeal (Hatton) should be allowed. In order to trigger a duty on an employer to take steps, indications of impending harm to the health of an employee arising from workplace stress had to be plain enough for any reasonable employer to realise that something had to be done about it. On the facts, the employee’s workload and pattern of absence taken together could not amount to a sufficiently clear indication that she was likely to suffer psychiatric injury as a result of workplace stress such as to trigger a duty on the employer to do more than was in fact done. Her workload had been no greater than her colleagues and her absences had been readily attributable to causes other than workplace stress.

2. The second appeal (Barber) should also be allowed. On the facts, it was difficult to identify a point at which the employer could have had a duty to take positive steps, and the evidence, taken at its highest, did not sustain a finding that the employer was in breach of its duty of care towards the employer. The claimant had not told his employers about his illness until he suffered a breakdown.

3. The third appeal (Jones) should be dismissed. The employer knew that excessive demands were being placed on the employee and that she was complaining that workplace problems were causing harm to her health. Once it was concluded that the combination of the way she was being treated, and her formal complaints about it, made injury to her health foreseeable, it was not difficult to identify what might have been done to prevent the injury which occurred. The judge had been entitled to conclude that failure to take such steps had caused the employee’s breakdown.

4. The fourth appeal (Bishop) should be allowed. There was nothing unusual, excessive or unreasonable about the demands being placed on the employee by his work. He was simply unable to cope with changes being made. His employers were unaware of advice by his doctor that he should change his job. Even if the employers had realised that something should be done, there was nothing they could reasonably have been expected to do, because the only solution would have been to dismiss the employee. An employer could not be in breach of duty for failing to dismiss an employee who wanted to continue and master the job despite the advice given to him by his own doctor.

General points made by Court of Appeal:

PSYCHIATRIC HEALTH

• Psychiatric illness can be more debilitating than physical injuries.

• The dividing line between a normal but unpleasant state of mind or emotion and a recognised psychiatric illness is not easy to draw.

• While some major mental illnesses have a known or strongly suspected organic origin, this is not the case with many of the most common disorders.

• Treatment of mental disorders is often not straightforward or its outcome predictable.

OCCUPATIONAL STRESS

• Stress has been defined as “an excess of demands upon an individual in excess of their ability to cope”.

• Harmful levels of stress are most likely to occur in situations where people feel powerless or trapped.

• Stress is a psychological phenomenon but it can lead to either physical or mental ill-health or both.

DIFFERENCES FROM OTHER WORK-RELATED HARM

• Employers may not be aware of what is going on in employees’ minds or in their lives outside work.

• Whereas an employer should be in control of the workplace, and has a duty to keep physical risks to a minimum, he is much less in control of workplace stress.

• Some jobs are intrinsically physically dangerous. Some people thrive on pressure, whereas others experience harmful levels of stress in jobs which others would not find at all stressful.

• In setting standards, the law tries to strike a reasonable balance.

• There is an argument that stress is so prevalent in some jobs, including teaching, that all employers should have in place systems to detect it and to prevent it developing into actual harm. This raises difficult issues of policy and practice.

LAW

• Liability in negligence depends upon the existence of a duty of care, a failure to take acre which can reasonably be expected in the circumstances, and resulting damage.

• All employers have a duty to take reasonable care for the safety of their employees.

• The ordinary principles of employers’ liability apply to psychiatric illness arising from employment.

FORESEEABILITY

• The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable.

• Factors affecting foreseeability include the nature and extent of the work being done and signs from the employee himself.

• Unless the employer knows of some particular problem or vulnerability, he is usually entitled to assume that an employee is up to the normal pressures of the job. Generally, he is entitled to take what he is told by or on behalf of the employee at face value.

BREACH OF DUTY

• In every case it is necessary to consider what the employer not only could, but should have, done.

• The employer can only be reasonably expected to take steps which are likely to do some good.

CAUSATION

• The employee does not have to show that the breach of duty was the whole cause of his ill-health.

• It is enough to show that it made a material contribution.

APPORTIONMENT AND QUANTIFICATION

• Where it is possible to identify the extent of the contribution which the defendant’s wrong made to the claimant’s damage, then the defendant is liable only to that extent, and not more.

• The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.