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.

Discussion

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 Mondaq.com.

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

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions