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Workplace Stress - Foreseeability of Injury
Dealing with workplace stress can be a difficult issue for employers. It is important to be alert to the signs of stress and to investigate and take appropriate action once you become aware that a problem exists. Failure to do so can result in a claim for damages.
The case of Hatton v Sutherland is the leading authority on this issue. The Court of Appeal provided 16 points as guidance on the legal position as regards claims for damages in respect of psychiatric injury caused by stress in the workplace. In 2004, the House of Lords endorsed this general statement of the law (in Barber v Somerset County Council) but made clear that it was only guidance and that each case would hinge on the particular facts under consideration.
Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress. It is foreseeable injury arising from an employer's breach of duty that gives rise to a liability and foreseeability depends on what the employer knows (or ought reasonably to know) about an individual employee. The guidance goes on to state that 'Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. 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.'
A recent case on this issue (Easton v B&Q plc) illustrates that a high standard of proof is required in such cases.
Mr Easton began his working life as a trainee butcher with Sainsbury's and eventually progressed to become the manager of a large branch of the supermarket chain. In 2004, he was recruited by B&Q as a store manager and made good career progress.
His appraisals showed that he was a high performer, and in July 2008 he was appointed manager of the B&Q store in Romford in order to oversee a substantial refurbishment after the manager in post felt unable to supervise the project. The refurbishment was carried out successfully and the store performed well. Changes to working methods and the introduction of 'Trade Point', a section of the store set aside for traders as opposed to the general public, caused a degree of disruption and meant Mr Easton had to work long hours. In May 2010, he was diagnosed as suffering from depression and was off work for nearly five months. In September 2010, the occupational health service reported that he was recovering with the aid of medication and a phased return to work was recommended. There was a last-minute change to the original plan and the attempt proved unsuccessful, with Mr Easton again certified as unfit for work due to depression. A further attempt to return to work in 2012 also failed.
Mr Easton brought a claim for damages for psychiatric illness and consequential loss caused by work-related stress. He argued that his initial illness was caused because he had been exposed to such high levels of stress at work that the risk of injury was foreseeable and had occurred owing to negligence and/or breach of statutory duty on the part of his employer. In particular, he asserted that no risk assessment had been carried out in relation to stress. Furthermore, he claimed that B&Q was in breach of duty in its management of his return to work in September 2010 and this had caused a relapse of his illness.
B&Q accepted that Mr Easton has suffered a psychiatric illness and that this was, at least in substantial measure, caused by occupational stress. However, it contended that his illness was not foreseeable at any stage and it had not acted in breach of any duty towards him.
The High Court found that, on a proper application of the principles referred to in Hutton to the evidence before the Court, Mr Easton's claim was bound to 'fall at the first hurdle'. He had a long career as a successful store manager with no previous history of psychiatric illness and nothing about his behaviour prior to his sickness absence 'put anyone on notice' that he might suffer such illness. There was no history of B&Q store managers suffering from psychiatric illness and he had not raised the issue with his manager, as advised in the staff handbook. As regards the lack of a general risk assessment on the part of B&Q, the Court was satisfied that this would not have uncovered a general risk of psychiatric injury and so would have had no effect on the outcome of this case.
As to the relapse Mr Easton suffered after B&Q became aware of his condition, the fact that he was still on medication was 'hardly determinative as to how his future employment should have been handled'. Many people carry out demanding jobs whilst relying on medication. By his own account, Mr Easton had felt ready to return to work and was not put under pressure to accept the suggested post. B&Q's approach to his return could not, therefore, be said to have given rise to a foreseeable risk of psychiatric injury.