UK: Stress At Work: A Case Of Retrospective Recollection?

Last Updated: 19 July 2012
Article by David Drewe

Grimes v City of Sunderland College [2012] was an unusual stress at work case in the County Court, in which DWF acted for the successful Defendant College. The claim focussed upon the Claimant's return to work after two previous breakdowns and her subsequent third breakdown. However, when investigated, it transpired that the Claimant had made an incomplete recovery from the second period of absence and it was held that she had failed to show fault on the part of her employers. The judgment provides a useful restatement of the law and also demonstrates that claimants face considerable difficulties in winning these cases if insurers adopt a robust position. David Drewe draws out the key findings and also highlights a useful practice point for claims handlers.

Facts

The 61 year old Claimant had trained as a teacher as a mature student and qualified in 1990. Throughout her teaching career she worked for the Defendant sixth form college which catered for a mixture of academic and vocational students, a number of whom came from deprived areas of Sunderland and could be "challenging".

First absence - in February 2000 she was diagnosed as suffering from a major depressive episode ("MDE") which resulted in an absence of 6 months, allegedly due to a combination of behaviour of students, unsupportive management and an impossible timetable. She returned to work in August 2000 in a non-teaching role in a work based learning unit.

Second absence - she suffered a further MDE in February 2005 which gave rise to another 6 month absence which she blamed on "unethical practices" within the college and lack of managerial support. At the beginning of her absence the College offered to provide her with a return to work in a new role at a new site, offering adult learning support ("ALS"), it being anticipated that she would be able to return to work shortly. It became apparent that this was not in fact going to happen and plans were made for a return to work at the start of the following academic year in September 2005.

There was a dispute about the scope of duties she was to undertake on returning to work, which was eventually to become a central issue between the parties. She asserted that she was to teach ALS on a specialist one to one basis whilst the College argued that the agreement was to work as a lecturer with some ALS duties.

Following a review by the College's Occupational Health provider in August 2005 the Claimant returned before the start of the Autumn term and commenced teaching on 12 September 2005. On 16 September she encountered what she regarded as a particularly unruly class, which she was later to say "broke her".

Third absence - on 2 December 2005 the Claimant ceased work, again blaming a confrontation in class. She did not return to work after that.

A Letter of Claim was issued in September 2006 and shortly after, she was examined by a Consultant Psychiatrist. The thrust of the complaints at that time were the failings of the College in respect of the February 2000 and February 2005 absences and the fact that on return to work in August 2005 she had to deal with unruly students.

Following disclosure of the Claimant's medical evidence, pre-action disclosure was given of her personnel and occupational health files.

Proceedings were issued in 2009. No allegations were made within the Particulars of Claim regarding the February 2000 or February 2005 incidents but it was alleged for the first time that rather than restarting work in an ALS role she was persuaded to work as a specialist tutor with some ALS input. The College's records relating to important meetings were certainly capable of an interpretation which supported this allegation. It was also alleged that the College was negligent in assigning her a large number of students who were aggressive, rowdy and difficult to control in the knowledge that she had previously struggled to cope with unruly students.

The trial took place over four days in February 2012 with the court hearing from thirteen lay witnesses and two medical experts.

Findings

HHJ Wood found that the Claimant had failed to discharge the "onerous burden" of showing fault on the part of the College:

  • The court was bound by the Court of Appeal decision of Hatton v Sutherland [2002]. The case had to be decided against the backdrop of the following factors:

- "Unless... there was a real risk of breakdown which the claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability". (Hale LJ (quoting Brown LJ in Garrett v London Borough of Camden) at para 22).

- "In every case it is necessary to consider what the employer not only could, but should have done". (Hale LJ at para 32).

  • The judge then reviewed and applied the relevant "practical propositions" outlined by Hale LJ at para 43 of her judgment.
  • There was no doubt that the Claimant was an employee in respect of whom psychiatric illness was foreseeable. However, the burden rested on the Claimant to show a breach of duty by the College in failing to prevent such injury.
  • Recognising the risk of the Claimant suffering further illness was central to the arrangements made to facilitate a return to work at a new site and in a new job. Regardless of the argument, resolved in the College's favour, about the extent of her duties, she knew the nature of the work, students and courses when she accepted the job. There was nothing to indicate that the job was intrinsically unsuitable. The Claimant had returned to a well thought out job, well supported by excellent management and it was not reasonably foreseeable that the Claimant would suffer injury due to stress at work.
  • Prior to her third absence, there were no indications of impending harm to health arising from stress at work plain enough for a reasonable employer to appreciate that it should do something about it. The Defendant, supported by the Claimant's GP and occupational health adviser, had the right to assume she had recovered and was fit to return.
  • The Claimant's reaction to challenging students was unforeseen and remained not reasonably foreseeable until her third absence.
  • When the Claimant returned to work she was in fact in remission but not fully fit. Unbeknown to anyone, she had also ceased taking her anti-depressive medication.
  • The College acted upon occupational health advice and provided a phased return to work but the "die was cast" as soon as work started unravelling for her on 16 September 2005. The Defendant was therefore not liable.

Comment

The case is interesting as a stress claim in which the liability alleged on the employer was confined to the situation where the Claimant returned to work after two breakdowns, and where the allegations of negligence were confined to the situation in which a third breakdown was suffered. It might have been thought that the Claimant was on more fertile ground where her vulnerability was more apparent to the employer as a result of the two previous episodes. Nevertheless, the same law was applied as would have been considered for a second breakdown claim, and the result was in favour of the employer whose actions were above criticism.

In stress cases, it is generally not in a defendant's interest to assert that a claimant is being dishonest. Having said that, there was a stark dispute here between the parties on a number of important factual issues. The approach the College adopted in this case, and which found favour with the Judge in resolving those factual disputes, was to assert that the Claimant's perception had been distorted by her condition as well as having to a degree been reconstructed after the event by reference to documents. This approach was considerably assisted by the fact that the pleaded case differed significantly from the claim as initially presented.

The Judge concluded that "insofar as I can find a reason for the discrepancy in the recollections it is... a case of reconstruction after the event aided by the benefit of sight of contemporaneous documents which, on their own, do lend support to the views of the Claimant. Taken as part of the chronology, however, it can be seen that such a view is erroneous".

Under the Pre-Action Protocol for Disease and Illness claims (paragraph 4.1) the Claimant may in "appropriate" circumstances seek disclosure of the occupational health and personnel records before issuing a Letter of Claim. The Claimant had not done so on this occasion, and it would have been interesting to see how she advanced the claim had she done so.

Insurers should therefore liaise with their insured to refer requests for disclosure of occupational health and personnel records (to which of course the Claimant is entitled under the Data Protection Act 1998) to them and try to persuade the Claimant to outline the broad nature of the claim (if not a detailed Letter of Claim) before such disclosure is given.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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