The law relating to workplace stress is almost entirely common-law based, which means created by judges in a number of decided cases. Robert Spicer shows how this area of law has expanded significantly in recent years.
The key case is Sutherland v Hatton (2002), which has now been followed by a number of cases which are summarised below. In Sutherland v Hatton, the Court of Appeal made the following general points in relation to liability for illness caused by stress at work.
Stress has been defined as “an excess of demands upon an individual in excess of their ability to cope”.
Some people thrive on pressure, whereas others experience harmful levels of stress in jobs which others would not find at all stressful.
Liability in negligence depends upon the existence of a duty of care, a failure to take care which can reasonably be expected in the circumstances, and resulting damage.
The ordinary principles of employers’ liability apply to psychiatric illness arising from employment.
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.
Store manager stress
The most recent decided case in this area is Easton v B&Q plc (2015), High Court.
The facts, in outline, were that E was a senior store manager employed by B&Q. In February 2010, he was working 14 hours a day. He was diagnosed as suffering from depression. He went off sick and made two unsuccessful efforts to return to work.
E complained that his illness had been caused by occupational stress resulting from the negligence of B&Q and its failure to carry put a risk assessment. He also claimed that the employer’s failure to manage his return to work caused him to relapse. The decision of the High Court was as follows.
E’s breakdown had not been foreseeable because he had no history of psychiatric or psychological problems.
There was nothing about store managers in general which might give rise to foresight of such a risk.
The company had acted reasonably by offering E a phased return to work.
Even if B&Q had carried out a risk assessment, it would not have made any difference. The working environment in the company was no more pressured than in many similar organisations. The staff handbook made it clear that staff must talk to their manager about feeling stressed. He had not done this.
Known vulnerability to depression
Another significant recently decided case concerning workplace stress and foreseeability is Garrod v North Devon NHS Primary Care Trust (2007), High Court.
G started working for N in 1998 as a health visitor. She worked 30 hours a week. In June 2001, she was off work because of depression caused by work pressures. In December 2001, she returned to work on a phased basis and resumed her normal hours in January 2002. In June 2002, G’s colleague was away from work with long-term sickness. G asked for additional assistance with her workload. Her employer asked her to arrange cover herself but she was not able to do this. Her health deteriorated and in June 2002 she suffered a relapse of her depressive illness.
In August 2002, she returned to work. She was given assurances that her workload would not increase but these assurances were not fulfilled and her workload increased. In February 2003, she went off sick. Her employment was terminated on the grounds of ill health in October 2003 when she was obliged to take early retirement.
G claimed compensation from N for its failure to take reasonable steps to avoid exposing her to a workload which endangered her health. N denied breach of contract or negligence and argued that any psychiatric harm had not been foreseeable. It was also argued on behalf of N that G’s injury was likely to have been the result of chronic fatigue syndrome and had been causally unrelated to the allegations of negligence.
The High Court ruled that the defendant was under a duty of care to provide G with a reasonably safe system of work and made the following points.
The psychiatric harm which she had suffered was foreseeable, given the nature and extent of G’s work and that she had a known vulnerability to depression.
Applying Hatton v Sutherland, N had been negligent in that it had failed to replace members of staff who worked with G, notwithstanding that there was a bank of staff available.
An organisation of the size of N should have been able to provide health visitor cover. It should have offered support and reassurance to G.
G’s psychiatric injury in June 2002 and February 2003 had been caused by N’s breach of duty, that is, her excessively heavy workload.
It was not the case that G was never fit to return to work. She would have made a full recovery in due course, but for N’s negligence.
The claim would be reduced by 20% because of G’s vulnerability to this type of injury.
The award of damages would be £39,000.
Claim against manager and employer
Another example is the case of Chapman v Lord Advocate (2006), Scottish Outer House.
Ms C, a former procurator fiscal, claimed compensation from her employer for psychiatric injury allegedly caused by workplace stress between April 1997 and January 1999. She alleged that this had been caused by the fault and negligence of her former line manager, for whom her employer was vicariously liable. She also claimed compensation directly from her employer.
Ms C complained of a heavy workload and a shortage of qualified lawyers when she started work in 1997, arguing that the line manager had known about this, and that she had suffered intermittent absences from work throughout 1997 and 1998 because of a variety of symptoms of ill health.
The Scottish court ruled that the claim failed. The court made the following further points.
Ms C’s evidence did not support the existence of a duty of care on the part of her line manager to take reasonable care not to cause her psychiatric injury.
Her evidence was wholly inadequate to form a basis for saying that the line manager knew, or ought reasonably to have known, that she was likely to suffer psychiatric illness as a result of stress at work.
There was no monitoring duty on an employer to take reasonable care to prevent psychiatric injury to the workforce in general.
Ms C’s claim directly against her employer was even weaker than her claim against her line manager. She had chosen to allege breach of duty against her former employer on the basis that he knew or ought to have known various things about her, her work, the organisation and administration of the office in which she worked and the complaints which she had made against her line manager, but without any averments of fact in support.