Workplace stress update

United Kingdom

Recent developments have occurred in the area of workplace stress in both the civil common law arena and by way of the HSE's consultation on their management standards for stress.

These developments indicate a subtle raising of the bar on the duty of care of the reasonable employer.

1. Update on civil law

There have been a number of recent cases on workplace stress. The most important of these has been the House of Lords judgment in Barber v Somerset County Council .

The Court of Appeal in the associated cases Sutherland v Hatton judgment of Lady Justice Hale set out clear 16 point principles relating to the criteria for cases, guidelines for employers and apportionment of damages. These principles were listed in detail in a Law-Now dated 11.02.2002 and may be accessed by clicking here.

The Appellant, Mr Barber, did not challenge, except on peripheral points and matters of emphasis, the principles of law set out in the judgment of the Court of Appeal. The 16 principles therefore still stand. The appeal became simply an appeal on the facts.

The House of Lords found in favour of the Appellant, Mr Barber, although the case was stated to be "fairly close to the borderline" . The House of Lords upheld the Judge at first instance who had come to the conclusion that the employer was in breach of duty. The House of Lords found that there was insufficient reason for the Court of Appeal to set aside the judge's findings on the facts.

Of particular interest are the House of Lords' comments on the approach taken in the Court of Appeal's judgment. In this regard, the Court of Appeal judgment may be divided up into three categories; the first concerns background considerations and the law, which was found by Lord Walker to be "a valuable contribution to the development of the law"; the second is the part dealing with apportionment and quantification of damage, on which the House of Lords expressed no view; the third concrens, the duties of the reasonable employer, which were given further consideration.

Lord Walker of Guestingthorpe, gave the majority judgment and commented specifically on the duty of care of the reasonable employer. It was agreed that psychiatric illness, whilst in principle no different from physical illness or injury, was caused by much more complex factors and involved much more uncertainty. The Court of Appeal had set out that the threshold question to be answered in any workplace stress case was "whether this kind of harm to this kind of particular employee was reasonably foreseeable". Foreseeability depended upon what the employer knew (or ought reasonably to know) about the individual employee. The Court of Appeal found that the employer was generally entitled to take what he is told by his employee at face value, unless he has a good reason to think to the contrary.

Lord Walker in his lead judgment says of this guideline: "this is, I think, useful practical guidance, but it must be read as that, and not as having anything like statutory force. Every case will depend on its own facts". Lord Walker preferred as a statement of law the statement of Swanwick J in Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Limited . This was that

"... the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know".

It was stated in Stokes v Guest Keen that where there was a recognised general practice which had been followed for a substantial period in similar circumstances without mishap, the employer was entitled to follow it, unless in light of common sense or newer knowledge it was found to be clearly bad. However, in the situation where there was developing knowledge, a reasonable employer had a duty to keep "reasonably abreast of it and not be too slow to apply it". However, where the employer has in fact greater than average knowledge of the risks, "he may be thereby obliged to take more than the average or standard precautions".

When finding in favour of Mr Barber, Lord Walker held that "at the very least the senior management team should have taken the initiative in making sympathetic enquiries about Mr Barber when he returned to work, and making some reduction in his workload to ease his return. ... in any event Mr Barber's condition should have been monitored, and if it did not improve, some more drastic action would have had to be taken".

This statement will impact on one of the principles set out by the Court of Appeal that, if the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not have been in breach of duty in allowing a willing employee to continue in the job. This principle had already been questioned by the Court of Appeal decision in Coxall v Goodyear Great Britain Limited where it was indicated that, in the absence of alternative work, where an employee was at risk, ultimately, employers' duty of care would not preclude dismissing/demoting the employee at risk in light of this.


The 16 propositions put forward by Lady Justice Hale in the Court of Appeal judgment of Sutherland and Hatton (see [insert link to previous archive item]) have received virtually unqualified approval from the House of Lords and stand.

The one area where a slight inroad into these principles has been made is in relation to the expected level of duty of care owed by the reasonable employer. Whilst he may be entitled to assume that his employee is up to the normal pressures of the job and accept what he has been told by the employee there is also an expectation that the employer keeps abreast of developing knowledge and practice and applies best practice according to his knowledge of the risks, as a positive duty.

2. HSE consultation on management standards for stress

Following on from the duty to "keep reasonably abreast" of developing knowledge comes the HSE's consultation on their management standards for stress. These may be accessed here. The consultation on these management standards is taking place from 25 May to 27 August 2004.

The pilot project for this scheme has been described in a previous Law-Now dated 27.06.2003. Please click here for further details

The standards will be supported by proposed new HSE guidance built upon the previous risk assessment approach. This is being developed by the HSE to coincide with our launch of the standards in November 2004.

The aims of the HSE are to reduce the incidence of work related illness by 20% by 2010, and to reduce the number of working days lost due to work related illness by 30% by 2010.

Level of Guidance

The management standards on stress are proposed as 'standards' only, as opposed to an Approved Code of Practice, and the HSE claims that this "simple approach" will be sufficient for companies to both realise the benefits of tackling work related stress and be in a better position to do so. However, the need or otherwise for an Approved Code of Practice is being kept under review.

HSE guidelines will have evidential value. They assist in the interpretation of legislation and the reasonable standard of duty of care owed to employees by employers as, although not legally binding, courts have regard to HSE standards in interpreting legislation.


One of the main drawbacks in carrying out these management standards would be in relation to the administration of the various questionnaires and different issues raised. It is uncertain whether or not the HSE has realistically estimated the time and costs involved in this, especially as risk assessments for stressors will already have been carried out by industry and measures put in place to reduce this stress under current health and safety legislation and guidance.

Where a company has, as is required, a generic risk assessment in place, has implemented the precautionary measures this risk assessment illustrated, and has the option of an individual risk assessment and counselling where necessary, the management standards may be interpreted as requiring a level of individual enquiry which might put an unnecessary and excessive cost on industry. However, the feedback comments which the HSE published based on responses to the pilot project are all positive regarding the schemes aims and end results.


The consultation questionnaire is very limited providing a 5 scale assessment from strongly disagree to strongly agree for each aspect of the levels to be assessed and a comments box is provided. It is desirable that as many responses as possible are sent to the HSE in order that industry may have some influence on the resulting standards.


The implementation of these stress management standards does appear to be on schedule for the end of 2004. Employers will need to take on board this HSE guidance in order to provide best practice in health and safety, especially in light of the judgement of the House of Lords in Barber v Somerset District Council that there should be a more positive obligation on reasonable employers to monitor employees more closely, keep abreast of new developments and not be too slow in applying them.

For further information, please contact Mark Tyler on +44 (0) 20 7367 2568 or at [email protected] , or Jessica Burt on +44 (0) 20 7367 3589 or at [email protected]