UK: Death Of A Helpline?

This article examines where we are with stress at work claims following a series of cases in 2007/2008 which were seen to be unhelpful to defendants.

The well known case of Hatton (2002) Court of Appeal was seen by many employers as a blast of common sense from the Court.  Lady Justice Hale set out guidelines which, it was supposed, if followed, would make an employer immune from workplace stress claims.  But, Lady Justice Hale only ever intended her list to be guidance so, when a number of later cases seemed to weaken the position for defendants, in fact all that was happening was the clarification and application of the principles which was probably always intended.

The panacea by which many employers thought they could discharge their duty of care in all cases was by the provision of a helpline.  Lady Justice Hale had stated "An employer who offers a confidential advice service, is unlikely to be found in breach of duty".  The existence of such a helpline was dutifully referred to in hundreds of defendants' witness statements and letters of rebuttal to claimants.  Daw v Intel (2007) Court of Appeal finally put paid to that.  The judges there held that the employer was in breach of its duty, notwithstanding that it provided a counselling service. The existence of a helpline should still be prayed in aid on any case; it is helpful, but should simply be seen as part of the broader package of care that an employer takes for the employee.

Then came Dickins v O2 (2008) Court of Appeal which caused widespread concern for defendants.  Looking back with the benefit of hindsight, there was little fundamentally surprising about the decision. True, it confirmed that the existence of a helpline was not a "get out of jail card" for employers, but that was nothing new. Commentators seemed to feel that the Court of Appeal had been unduly harsh on O2.  However, the claimant came across as a deserving individual, whereas the witnesses for the defendant appeared evasive and were unable to back up their assertions with documentary evidence.

The claimant, who had worked for the defendant for many years, began to suffer increasing mental problems and stress, and requested help.  She expressly asked for a sabbatical on a number of occasions, requested to be moved to a less stressful job, and told her employer that she was at the end of her tether.  She was unable to come into work on time due to her mounting distress, and although a referral to occupational health was promised, it was not done quickly and this general lack of assistance tipped her over the edge into a mental breakdown.  The Dickins decision was based on a catalogue of unfulfilled promises by the employer.

Developments

However, other more recent decisions suggest that things are not all bad.

For example, the case of Paterson v Surrey Police Authority (2008) adopted a "back to basics" approach to Hatton, and found in favour of the defendant.

Paterson had worked for the defendant Police Authority as Estate Manager for many years.  He worked long hours, but his main complaint was about the many further hours that he spent on standby waiting for calls to let Police Cadets in who had been locked out of their rooms, or to reset alarms. He alleged that this constituted breach of the Working Time Directive, gave rise to a free standing claim for civil damages, and that the defendant Police Authority was on notice of his vulnerability through his behaviour, and complaints made by his wife.

His Honour Judge Richard Seymour QC held that the level of work should be taken in the round, and that breach of the Working Time Directive did not give rise to a freestanding claim for damages.  He said that time spent on standby did not automatically add to the workload, and only would do so if the person was actually called out and his sleep or lifestyle disturbed.

The court held that Mr Paterson's wife, although complaining about the effect his work was having on his private life, was not explicit about any threat to health.  Note, however, that the Judge was open to the idea that the complaint by the wife, made in this case in a confidential meeting she had requested with her husband's Line Manager, could constitute proper notice of harm, if explicit enough.  The Patersons had, in particular, wanted to move from the tied cottage on the Estate that they lived in, to another property offsite, to avoid constant interruptions.  The Judge held that there was no duty on the employer to relocate a dissatisfied employee.

This result contrasts with the claimant's win in Connor v Surrey County Council (2009) High Court. The winning headteacher had led her school through a period of very traumatic conflict with some members of the school's governing body. She was subject to public humiliation and threats. The judge held that the defendant did not do enough to support her. The crucial factor for the judge was the numerous warnings of impending threat to the claimant's mental health - there were various e-mails and oral warnings from both the head and her colleagues. The judge found the claimant to be a deserving witness, whereas his impression was that the defendant's witnesses were of 'varying quality'. He found, quite simply, that the Local Education Authority staff should have been quicker to step in and offer the claimant managerial support, in addition to the offers of counselling and occupational health assistance to her.

In conclusion, it is in the nature of litigation that judges differ in their approach to cases.  Decisions will hit the headlines but, as with many claims, there is often a good dose of media hype.  With stress at work cases, the starting point remains Hatton, and an employer must show a careful, considered, well documented response when it becomes aware that it has a distressed employee in its midst.  And it must be alert to warnings from whatever source they come.

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.