UK: Stress at Work - the Next Chapter

Last Updated: 28 February 2002

An analysis of the decision of Terence Sutherland v. Penelope Hatton and others

Court of Appeal: 5 February 2002

The four appeals involved two Respondent Claimants who were teachers in public sector comprehensive schools, an administrative assistant in a local authority training centre and a raw materials operative in a factory.

The decision

The Court of Appeal set out the law as follows:

(i) Duty

The relationship between an employer and employee gives rise to a duty at common law to take reasonable care for the safety of the employee.

(ii) Foreseeability

The test to be applied is whether the psychiatric injury which has occurred was reasonably foreseeable when considering the particular claimant. In applying the test an employer, unless he knows of some particular problem or vulnerability, is usually entitled to assume the employee is up to the normal pressures of the job.

The Court of Appeal emphasised the test involves a consideration of the particular characteristics of the employee concerned and the particular demands an employer makes. The following factors were identified as relevant to the analysis:

  • A consideration of the nature and extent of the work being done. It will be easier to conclude harm is foreseeable if an employee is being overworked in an intellectually or emotionally demanding job or where there is evidence of unreasonable pressure being applied. It is relevant to consider how other employees doing a similar job are managing – do, for example, abnormal levels of sickness/absence exist?
  • Central to the analysis is the extent to which there are any warning signs from the claimant employee. The Court of Appeal emphasised "It is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health". That said, it was recognised harm to health may be foreseeable without an express warning. Frequent/prolonged uncharacteristic absence from work, for example, might be sufficient to put an employer on notice.
  • Generally an employer is entitled to take what he is told by or on behalf of the employee at face value.
  • The indications of impending harm "must be plain enough for any reasonable employer to realise that he should do something about it".

(iii) Breach of duty

If a risk is foreseeable an employer’s duty is to take reasonable care. What is reasonable in the circumstances leads to some circularity in reasoning in that it depends in part upon the foreseeability of harm, the magnitude of the risk, the gravity of the harm, the cost and practicability of preventing it and the justification (if any) of running the risk.

The Court of Appeal identified the following factors:

  • It is necessary to identify not merely what an employer could have done but what an employer should have done. In addition, it must be shown that a particular step would have done some good. Specifically the Court of Appeal identified that an employer who offered its employees confidential help would probably not be found to be in breach unless it was established that totally unreasonable demands were being placed on the employee.
  • If there were no steps which an employer could reasonably take, or that would be of benefit, it is for the employee to decide whether to continue to take the risk of ill health or whether to leave.

(iv) Causation

To succeed a claimant must establish the employer’s breach of duty made a material contribution to the harm suffered. Where a number of causes are identified an employer should only be responsible for that proportion of the harm for which he is responsible; unless the harm is indivisible. The Court of Appeal endorsed an extension of the principle set out in cases such as Holtby v. Brigham and Cowan (Hull) Limited [2000] PIQR Q293.

The Court of Appeal also confirmed that where it was established the employer’s conduct had merely exacerbated a pre-existing disorder or vulnerability, the damages awarded should be limited to the exacerbation caused.


The Judgment is obviously of assistance in defending stress at work claims because the Court of Appeal has set down guidelines for Courts below to follow and it is to be hoped this will create certainty as to the questions a judge has to consider.

It is apparent the Court of Appeal has struck a balance between the competing interests of employers and employees and that considerations of policy played an important part in the decision. This is evident from the following passage:

"When imposing duties and setting standards, the law tries to strike a balance which is reasonable to both sides… It is in everyone’s interests that management should be encouraged to recognise the existence and causes of occupational stress and take sensible steps to minimise it within their organisation. It is in the interest of the individual employees who may suffer harm if their employers do not. It is in the interest of the particular enterprise which may lose efficiency and workers if it does not. It is in the public interest that public services should not suffer or public money be wasted… But if the standard of care expected of employers is set too high, or the threshold of liability too low, there may also be unforeseen and unwelcome effects upon the employment market. In particular, employers may be even more reluctant than they already are to take on people with a significant psychiatric history or an acknowledged vulnerability to stress-related disorders. If employers are expected to make searching inquiries of employees who have been off sick, then more employees may be vulnerable to dismissal or demotion on ill health grounds…".

Policy considerations are perhaps most evident in relation to the Court of Appeal’s refusal to accept the submission by Counsel for the employees that there are some occupations (in particular, in the public sector) which are so intrinsically stressful that harm is always foreseeable.

The principles enunciated by the Court of Appeal are relatively clear and familiar; albeit that the Court has applied a restrictive interpretation. Their application in practice will create more difficulty and much will continue to turn upon the detailed facts of the particular case. This is inevitable in an area of law where the establishment of liability is so dependent upon the particular facts. For example:

  • Although the Court emphasised that it is important to distinguish between signs of stress and signs of impending harm to health this may be difficult to do in practice. It is easy to imagine that a claimant will rely upon the same facts as evidence of impending harm to health which the defendant relies upon as evidence of (if anything) mere stress. It seems the point the Court of Appeal was making is that the identification of stress in itself in the workplace does not establish foreseeability. The claimant must go further. It is necessary to establish there were factors in the nature and extent of the work as well as sufficient signs from the claimant himself that an injury was reasonably foreseeable.
  • In many cases there are a number of factors operating in tandem which cause the psychiatric injury. Courts are now encouraged to undertake an apportionment exercise so that the employer only pays for that proportion of the harm for which he is liable. In asbestos cases the practice has arisen of apportioning liability on a time exposed basis. This will not be possible in most stress cases where the various contributory factors are operating at the same time. No guidance is provided as to how an apportionment is to be achieved other than that "a sensible attempt should be made" and, again, much will depend upon the particular facts of the case. The result will be to reduce awards although it might be difficult (at least initially until first instance decisions provide a guide) to assess the likely apportionment percentages the Court will make. This could create uncertainty between the parties prior to trial.

The Court of Appeal also dealt with a problem which occurs in many cases where an employee has been off work sick and returns to work. What assumptions is an employer entitled to make upon the employee’s return? The Court held that the mere expiry of a GP’s certificate does not mean either that an employee is fit to return to work or that the employee is no longer at risk of recurring illness. However, an employer is usually entitled to assume that an employee who returns to work after a sickness absence without raising his fitness to work, is fit to return to the type of work done before the illness occurred.

The Court of Appeal identified that "The key is to offer help on a completely confidential basis… and if reasonable help is offered either directly or through referral to other services, then all that reasonably could be done has been done". Will this provide a complete defence? In many cases the answer will be in the affirmative especially where the resources or size of the employer means that other steps could not reasonably have been taken. What is the position if a referral service exists but the stressful work environment remains and ultimately causes harm? The Court of Appeal has indicated that in these circumstances a breach of duty could still be established if it is shown that totally unreasonable demands were being placed upon the employee and the risk of harm was clear.

In conclusion, the Judgment is likely to lead to a reduction in claims brought in the County and High Courts. Claimant solicitors must now ensure their client’s claim meet the required criteria. Given, however, that tribunals can award personal injury damages in discrimination cases, and the fact that there is no compensation cap in such cases, it is probable that an increased number of claims will continue to be brought before tribunals. Unlike the position at common law, an employee who is, for example, able to bring his claim within The Disability Discrimination Act 1995 is not required to establish either that the employer caused the initial harm nor that the harm was reasonably foreseeable.

Although leave to appeal to the House of Lords was refused by the Court of Appeal, leave is being sought from the House of Lords. Any future consideration by the House of Lords, whether in relation to these claims or other claims, is likely to consider the fundamental question whether, in fact, an employer’s duty of care is limited to employees who are at foreseeable risk of physical (as opposed to psychiatric) harm. Although the House of Lords has never considered this question in the context of workplace stress this approach was taken (by a majority) in the case of Frost v. Chief Constable of South Yorkshire [1999] 2AC 455 which considered claims by policemen who were on duty at the Hillsborough Stadium on the day of the disaster. If the House of Lords did find that the duty of care was limited to a foreseeable risk of physical harm, stress claims at common law would become a thing of the past unless it was accepted that an employee who suffers psychiatric harm due to stress at work inevitably also suffers some form of physical injury. Watch this space!

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.