Two years ago the Court of Appeal in Sutherland v Hatton confirmed that to succeed in a negligence claim for damages for injury to health caused by stress at work, an employee must establish not just causation (which requires clear medical evidence), but also foreseeability of injury, and a failure to take practical steps to alleviate the risk. The Court also emphasised that the threshold for bringing a successful claim was high. Now in Barber v Somerset the House of Lords has given general approval to this approach, with the caveat that the Hatton decision constitutes ‘useful practical guidance’ and does not have ‘anything like statutory force’.
The Lords stress that it is foreseeability of injury to health that is crucial, not just knowledge that an employee is affected by stress. Exposure to stress does not normally cause illness; something more is required to alert the reasonable employer to the danger of injury to health, and to bring the duty of care - to take steps to alleviate the risk - into play.
Barber’s case illustrates the extra ingredient required. An experienced teacher, carrying increased responsibilities and workload, was signed off by his GP, suffering from stress and depression for three weeks in the summer term. He returned to work but the school did nothing to address the situation and he suffered a breakdown in October. The Court of Appeal found that the employer had not been put on notice of the risk of injury. The Lords disagreed: the earlier episode of illness was, on balance, sufficient to establish that a further illness was foreseeable unless steps were taken to alleviate the workload. However no such help was offered: ‘Even a small reduction in his duties, coupled with the feeling that the senior management team was on his side, might by itself have made a real difference’.
In discrimination law, by contrast, there is no need to prove illness is foreseeable to recover full compensation (see the March 2004 update). Employees would therefore be well advised to attribute their stress to gender, race or disability related factors in appropriate cases.
Practical Implications
Employers can expect employees normally to withstand stress at work, but if they are put on notice of a risk to health, they need to enquire and consider further. Notice may come, as in Barber, from a previous period of illness; or directly from the employee if they complain about the effect of work on their health; or from a pattern of absence or ill health among employees generally in a particular job. A return to work interview, followed up some months later, may be advisable, but a medical report is not normally required: employers are entitled to take at face value an employee who says they are fit to return, unless there is something obviously amiss.
Consultation over Closures
Employers proposing to dismiss 20 or more employees within a 90 day period are obliged to consult employee representatives in good time beforehand, and in any event at least 30 days before the first dismissal is proposed to take effect. Does this mean that the employer must consult over issues such as branch or factory relocation or closure? Since the purpose of the consultation is to try and avoid or reduce the need for redundancies, and fair consultation includes ‘consultation when the proposals are still at a formative stage’, consulting over the need for a branch closure, with its consequent redundancies, might be thought to be included. That was the view of the Employment Tribunal when Securicor announced the closure of two branches to the union, and proceeded to discuss how consequent redundancies might be handled.
The Employment Appeal Tribunal disagreed. The duty to consult does not arise in relation to the decision to close, but only over how to handle and reduce the consequent redundancies, and Securicor had done this. This restrictive decision follows earlier case law establishing that consultation need not extend to the reasons for the redundancy, but only to mitigating its consequences.
European law, when the Information and Consultation Directive is implemented in March 2005, will require a different view. The draft Regulations on Information and Consultation of Employees include an obligation to provide information to the Consultation Committee on ‘the probable development of employment… in particular where there is a threat to employment’; and on ‘substantial changes to work organisation’, including collective redundancies. The information must be given ‘at such time to allow the Committee to conduct an adequate study’ and ‘to prepare for consultation’; and the consultation process must be ‘with a view to reaching agreement’, in contrast to the present weaker obligation to inform, to listen, and to consider.
Practical Implications
The cultural change required by the new Regulations for some organisations will be dramatic. How would your organisation currently handle the type of decision faced by Securicor? How would the timing, content and manner of such decisions be affected by the new information and consultation rules? What would be the impact on commercial confidentiality? Employers should be checking now whether the Regulations will apply to them and if so how to accommodate the new regime. Good planning at this stage could give employers much greater flexibility and might even allow an employer to escape the effects of the Regulations altogether.
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Cases referred to in this article:
Barber v Somerset County Council [2004] UKHL 13, and Sutherland v Hatton [2002] IRLR 263 CA; Securicor Omega Express Ltd v GMB EAT 0877/02; Fairhurst Ward Abbotts Ltd v Botes Building Ltd [2004] IRLR 304; British Telecommunications Ltd v Reid [2004] IRLR 327; www.acas.org.uk/publications.
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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