Chair of Governors at St Thomas Becket R.C. High School v Hatton; Somerset County Council v Barber
Sandwell Metropolitan Borough Council v Jones;
Baker Refractories Ltd v Bishop Court of Appeal 5 February 2002 EWCA Civ. 76
The Court of overturning of three work-related stress cases in February was not a revolution. It did not, as some sections of the media crowed, mean the end of employees' rights to take their employers to court for causing psychological injury.
To some extent the court has clarified the law, which has been a minefield. But in others it has muddied the water on stress claims still further, while placing the onus on employees to complain or find a new job.
But by setting out 16 'practical propositions' relevant in determining liability in stress claims, including an employer's obligations, the court has put flesh on the bones of the existing approach.
The landmark case of John Walker, the director of social services at Northumberland County Council who settled in 1996 for £175,000, established that the basic principles of employers' liability apply i.e. duty of care, breach of duty, injury caused by the breach of duty and whether an injury is foreseeable. Stress cases, the court said, require particular care in deciding because they give rise to the difficult issues of foreseeability and cause. In turn, deciding whether there has been a particular breach of duty that led to the psychiatric illness may prove difficult.
All of the defendants appealed on the basis that the original court rulings had set too low the trigger for when an employer has to take action. As a consequence the respective courts had found the psychiatric injury to be foreseeable and that the employer was in breach of duty. Another important aspect of the Court of Appeal ruling is that it made clear there is a distinction between psychiatric ill health and occupational stress. A claimant cannot recover compensation for stress unless it develops into psychiatric ill health as a result of stress at work.
Some of the key propositions set out by the Court of appeal were:
- An employer was entitled to assume that an employee can withstand the normal pressures of the job unless that person is known to be vulnerable. The employer is entitled to take what an employee says at face value.
- There are no occupations that should be regarded as intrinsically dangerous to mental health and to trigger a duty to take steps. The warning of impending harm to health must be plain enough for any reasonable employer to recognise.
- An employer need only take steps which are reasonable in all the circumstances and which are likely to do some good, but if they have a confidential advice service they can escape liability.
- The employee must show that the harm done has been caused by what the employer has failed to do and will succeed only to the extent they can show the employer has contributed to their condition and this will require an assessment of vulnerability.
In each of the Court of Appeal cases the employee suffered from a psychiatric illness. But in the case of Penelope Hatton, a comprehensive school teacher suffering from depression and medically retired, she said as a result of stress and overwork, the court did not accept that it was directly attributable to her work or that the employer was in breach of their duty.
The court said that she had a previously unrelated history of depression, her pattern of absence was easily attributable to causes other than stress at work, that her work load was not excessive in comparison with others' and, crucially, that she did not complain so her employers could not reasonably have foreseen the development of her condition.
There are parts of the decision that do not sit easily with the Management of Health and Safety at Work Regulations 1999 (MHSWR and the HSE's approach to safety management set out in its publication 'Successful health and safety management', HSG 65.
Regulation 3 of the MHSWR requires employers to carry out risk assessments of the hazards in their business and put in place appropriate preventative and protective measures to deal with health and safety risks. Regulation 5 requires employers to have in place arrangements for the 'effective planning, organisation, control, monitoring and review of the preventative and protective measures'. Regulation 13 MHSWR states that an employer shall take into account an employee's capabilities with respect to the work they are asked to do. Paragraph 80 of the Approved Code of practice to MHSWR states:
'When allocating work to employees, employers should ensure that the demands of the job do not exceed the employees' ability to carry out the work without risk to themselves or others...Employers should review their employees' capabilities to carry out their work, as necessary'
Paragraph 55 of Tackling Work-related Stress by the HSE (2001) states in relation to paragraph 80 of the ACOP:
'This includes making sure that employees' mental health is not put at risk through the work they are required to do. Providing adequate training for the job is an important ingredient.'
There are sweeping generalisations in the Court of Appeal's decision and many stress cases are much more complicated and stronger than those considered. But the onus is clearly on employees to make their problems known to their employers. Employees should complain and complain early and frequently and seek medical help. Despite the prevalence of stress in the workplace, health and safety guidance and risk assessments, the Court of Appeal's view is that there is no obligation on an employer to do anything unless the problem is thrust in their face.
Stress cases are extremely difficult to prove. For a claim to succeed the worker must show:
- They have a psychiatric illness or injury
- The claimant's work posed a real risk of causing psychiatric illness and the employer knew (or ought to have known) that the claimant was exposed to that risk.
- Given the foreseeable risk, the employer failed to take reasonably practicable or adequate steps to prevent or reduce the risk of psychiatric harm to the claimant.
- The claimant's psychiatric harm was caused, or materially contributed to, by the work and the employer's breach of duty