Court judgements

To date, the civil actions have been successful because it has been possible for the plaintiff to prove 'foreseeability'. The watershed case 'Walker v Northumberland County Council' illustrates this point.

Walker suffered a second nervous breakdown after returning to work in a similar environment with similar workload and responsibilities as before, despite medical advice to his employer that he should not have done so. It was established that there was a foreseeable risk of further injury. The 'summing up' clarified the application of health and safety law to circumstances that could lead to mental injury.

It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employee as distinct from injury to his mental health, there is no logical reason why psychiatric damage should be excluded from the scope of an employer's duty of care.

In 2002, the Court of Appeal heard four cases together, in which all of the claimants had succeeded in their negligence actions against their employer. Two of the claimants were teachers in comprehensive schools, the third was an administrative assistant at a local authority training centre, and the fourth was a raw materials operative at a factory.

The parties were Sutherland (Chairman of St Thomas Becket RC High School) v Hatton, Somerset County Council v Barber, Sandwell Metropolitan Borough Council v Jones, Baker Refractories Ltd v Bishop [2002] EWCA Civ 76.

Summary of the court judgement

The appeals by the employers raised many legal issues and, as a consequence, the judgement is 50 pages long but, very helpfully, the Court clearly summarises, in 16 points, the practical issues which apply in such cases:

i. There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employers’ liability apply.

ii. The threshold question (for establishing liability) is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

iii. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

iv. The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.

v. Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b) Signs from the employee of impending harm to health. Has he/she a particular problem or vulnerability? Has he/she already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him/her? Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from him/her or others?

vi. The employer is generally entitled to take what he/she is told by his employee at face value, unless there is good reason to think to the contrary. He/she does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his/her medical advisers.

vii. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he/she should do something about it.

viii. The employer is only in breach of duty if he/she has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.

ix. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

x. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.

xi. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.

xii. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.

xiii. In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him/her in breach of his duty of care.

xiv. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.

xv. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his/her wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.

xvi. 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.

The judgement is a very welcome analysis of the nature of the legal duty imposed on employers in cases of this kind and should lay the ground rules for a proportionate response in the future. The case emphasises that the ordinary principles of legal liability for negligence apply to this type of claim. The judgement is also helpful in highlighting the management implications in this field.

See the full Hatton Judgement 5th February 2002.