When does a stress injury become “reasonably foreseeable”?

United Kingdom

A recent case concerning stress, Tina Marie Hiles v South Gloucestershire NHS Primary Care Trust, (20/12/2006 Queens Bench Division) has assisted in illustrating when it may be reasonably foreseeable that an employee is vulnerable to injury from workplace stress.

Stress cases are particularly difficult because of the nebulous nature of the injury. Whether or not liability may be established will depend upon ‘whether this kind of harm to this particular employee was reasonably foreseeable’. This is termed the “threshold question” as established in the House of Lords case of Sutherland v Hatton (2002.)

A number of factors should be considered in answering this question, these include what the employer knows (or ought reasonably to know) about the individual employees, the nature and extent of the work done; and signs from the employee of impending harm to health.

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 it should do something about it. An employer is generally entitled to take an employee at face value, unless there is good reason to think to the contrary.

The Hiles case found that the claimant breaking into tears at a work review was not the normal behaviour of an ordinary robust and hard working employee when discussing workload. This was found not to be a symptom of illness, but rather a sign that the claimant was under stress, that the stress was beginning to affect her and if it continued, or got worse, the claimant might be adversely affected.

An employer is in breach of duty of care only if it has failed to take steps that are reasonable in the circumstances. In the Hiles case it was found that the situation was not kept properly under review so that action might have been taken to prevent the claimant from becoming unwell. As a result the claimant suffered a psychiatric breakdown and full damages were awarded against the trust.

No employer has an absolute duty to prevent all stress, which can be as a result of interests outside work. However, once an employee has raised the issue of stress or indicated this in such a way that concerns are recorded, an employer can have a duty to investigate properly and to protect the employee.