UK: Stress Claims - Employers’ Liability for Psychiatric Illness

An employer is under a general common law duty to take reasonable care to ensure the safety of its employees while at work. Traditionally, claims brought by employees in respect of a breach of this duty of care have been in respect of physical injuries. However, in recent years growing numbers of employees have brought claims in respect of psychiatric injury arising from occupational stress. A recent decision of the Court of Appeal, Chairman of the Governors of St. Thomas Becket RC High School -v- Hatton and Others, has set down useful guidance to help determine when an employer will be liable in respect of such stress claims and to provide practical assistance to employers in order to avoid liability. This Briefing Note sets out the principal points made by the Court of Appeal.

In order for an employer to be liable for psychiatric injury suffered by an employee in respect of occupational stress, the employee must prove:

(a) that the employer has breached its duty of care in relation to him;

(b) that the employee has suffered a reasonably foreseeable psychiatric injury; and

(c) that the psychiatric injury was caused by the breach of duty.

The Court of Appeal focused on the key issues of: (i) when a psychiatric injury could be said to have been reasonably foreseeable; (ii) what an employer can reasonably be expected to do to prevent such an injury; and (iii) the difficulty of ascertaining the cause of such an injury.

The Court of Appeal stated that there are no occupations so intrinsically stressful that psychiatric injury is always reasonably foreseeable. Rather, foreseeability depends upon the inter-relationship between the particular demands of a job and the particular characteristics of the employee concerned. The Court listed a number of factors relevant to these issues.

With regard to demands of the job, the following factors were listed by the Court as being relevant:

• the nature and extent of the work done by the employee - an employer should be more alert to picking up signs from an employee who is being over-worked in a particularly intellectually or emotionally demanding job;
• whether the employee’s colleagues have suffered injury to their health arising from their work or if there is an abnormal level of sickness or absenteeism in the employee’s job or department.

With regard to the characteristics of the employee, the Court stated that the following might be relevant:

• whether there are signs from the employee of impending harm to his health;
• whether the employee has a particular problem or vulnerability;
• whether the employee has already suffered from illness attributable to stress at work;
• whether the employee has had frequent or prolonged absence that was uncharacteristic of the employee and whether there is reason to think that these are attributable to stress at work.

The Court’s approach acknowledges that stress itself is an unavoidable characteristic of most occupations and is not in itself the basis for a claim.

The Court stated that an employer will be entitled to assume that an employee can cope with the normal pressures of a job, unless he knows there is something specific about the job or the individual concerned that should make him consider the issue of psychiatric injury. Further, the Court stated that an employer is not obliged to make intrusive enquiries and is generally entitled to take what he is told by the employee at face value. Therefore, it is clear that an employee who recognises that he or she is suffering from potentially harmful levels of stress must take some responsibility for dealing with the situation. If an employee does not draw his employer’s attention to the fact that he is suffering from occupational stress, the employer is unlikely to be liable if the employee goes on to suffer a psychiatric injury.

Even if psychiatric injury is deemed reasonably foreseeable, an employer will not be assumed to be in breach of his duty of care if he fails to take steps to prevent the employee from suffering psychiatric illness. Rather, the court will consider a number of factors before concluding that the employer is under a duty to take steps. These include:

• the magnitude of the risk of psychiatric injury occurring;
• the gravity of the injury which may be suffered;
• the cost and practicability of preventing such injury, particularly in view of the employer’s resources;
• the effect that any steps taken would have upon the employer’s other employees;
• whether such steps would actually prevent the injury occurring.

Further, the Court stated that an employer who offers confidential help, including counselling or treatment, is unlikely to be found to be in breach of duty except where it had been placing unreasonable demands on an individual where the risk of psychiatric injury was clear. Further, the Court stated that an employer is not obliged to demote or dismiss an employee in order to remove him or her from a stressful situation, even where that is the only effective course of action available. Therefore, an employer will not be in breach of duty simply by allowing an employee to continue in his or her job.

To succeed in a claim, an employee must demonstrate that the employer’s breach of duty of care has caused or materially contributed to his or her psychiatric injury. If the psychiatric injury has more than one cause, unless the harm is truly indivisible, the employer should only pay for the proportion of the injury attributable to its breach. The Court also stated that where the employer’s breach of duty exacerbated or accelerated the employee’s pre-existing disorder or vulnerability, damages would be based only upon the exacerbation or acceleration.

The Court summarised its guidance, listing 16 key principles which are set out below:

(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply.

(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. This has two components: (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. 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.

(4) The test is the same whatever the employment. There are no occupations which should be regarded as intrinsically dangerous to mental health.

(5) Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee. Is the workload much greater than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are the demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs, or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b) Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from him or others?

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or

seek permission to make further enquiries of his medical advisers.

(7) 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 he should do something about it.

(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it and the justifications for running the risk.

(9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable. These include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

(10) An employer can only reasonably be expected to take steps which are likely to do some good. The court is likely to need expert evidence on this.

(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.

(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.

(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.

(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the employer to raise the question of apportionment.

(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the employee would have succumbed to a stress-related disorder in any event.

An employer should be aware that there are a number of statutory provisions which provide additional protection for employees.