Important case for Employers involved in Workplace Stress Related Claims

In the recent case of Sutherland v Hatton ([2002]EWCA Civ 76, CA, 05/02/02) the Court of Appeal ruled that signs of stress in a worker must be obvious to their managers before the company can be taken to court for negligence.

Important guidelines were given as to how workplace stress claims should be brought by claimants and dealt with by both employers and the courts. Lady Justice Hale, giving the lead judgement, stated the following principles:

Criteria for Cases:

• The ordinary principles of employer’s liability apply.
• The threshold question to be answered in any workplace stress case was stated as: “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).
• Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee.
• There are no occupations which should be regarded as intrinsically dangerous to mental health.
• Factors likely to be relevant in answering the threshold question include:
• • The nature and extent of the work done by the employee.
  • Signs from the employee of impending harm to health.
• The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary.
• 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 should do something about it.
• The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances.
• 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.
• An employer can only reasonably be expected to take steps which are likely to do some good.

Guidelines for Employers

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

Apportionment:

• 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 wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.
• 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.

Conclusion

The Judgement emphasises the actual or perceived knowledge by the employer of the needs of a particular individual and this greatly affects both the threshold question and foreseeability.

It was stated that a mental injury is harder to foresee than physical injury, but that it may be easier to foresee in a known individual than in the population at large. An important point made within the judgement and summary was that “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.

Amendments to health and safety Legislation (previously outlined in a November 2001 LawNow) proposed there should be a requirement for individual risk assessments taking into account the particular disabilities of employees in utilising equipment and access and egress from the workplace. The UK amendments have extended the EU requirement of "handicapped" to "disabled" to fit in with their Disability Discrimination Act 1995 legislation. However, this has the effect of necessitating individual risk assessments for mental health problems which in turn may be used by disabled claimants to overcome the threshold question that this kind of harm to this particular employee was reasonably foreseeable.

However, this judgement is to be welcomed by employers as for the first time setting out clear guidelines under which employees can bring claims and employers protect themselves. This is sure to have far reaching implications for insurance cover and the prevention of unmeritous claims.

It would now appear that the courts are endeavouring to balance more carefully the interests of employee claimants and employers.