The success rate for occupational stress due to overwork is low, but attitudes are changing. Roddy Macleod explains

In 2002, the case of Hatton v Sutherland came before the Court of Appeal. The case set down 16 important guidelines governing the area of law stating that ordinary principles of liability in negligence applied, namely foreseeability, breach of duty, causation and harm.

Notably, the court shifted the burden on to an employee to be in charge of his own mental well-being. The individual employee needs to take action to deal with stress in the workplace, such as complaining and bringing the problem to his employer's attention.

Lord Hale's 16 points were considered by the House of Lords in the case of Barber v Somerset County Council [2004] and were upheld. In relation to foreseeability, the point was that 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.

That position, though, was recently considered in Mark Hone v Six Continents Retail Ltd [2005]. In that case, the Court of Appeal, including the Master of the Rolls, Lord Phillips, decided in particular that the claimant's stress was foreseeable and that liability did attach to the employer.

Mark Hone worked for the defendant as a licensed house manager. His case was that his psychiatric injury was caused by stress, which in turn was attributable to him being required to work excessive hours without support. He kept records that apparently showed that he was working between 82 and 92 hours over a seven-day week.

In terms of seeking medical advice he had on several occasions seen his GP complaining of headaches and insomnia. On 28 May 2000, he collapsed at work following giddiness and chest pain and did not work for the defendant thereafter.

The defendant's case was essentially the following: there was no prior history of mental illness or suffering adversely from stress at work. There was no evidence that in general, licensed house managers were prone to such complaints. The claimant had no absences from work either before April 2000 or more particularly from April 2000 until the time of his collapse at the end of May 2000. Indeed, he had always given the impression that he was well, self-confident and in control.

In a number of reported cases, and indeed unreported cases that I have dealt with, it has been sufficient to establish that the claimant did not tell his employer that he was becoming ill and that it was related to overwork.

In Hone's case, the judge relied upon the following to establish foreseeability:

  • Knowledge that the claimant was working very long hours
  • The claimant specifically mentioned at a meeting that he was tired
  • The fact that the claimant had been requesting an assistant manager for a considerable time
  • The claimant was putting in records showing that he was working 90 hours per week, which the employer should have recognised as a cry for help
  • In the first instance, the judge paid considerable attention to the working-time regulations, which limit working hours to 48 hours per week unless an opt out was signed. The claimant in this case, refused to sign the opt out under the Working Time Directive.

    The Master of the Rolls, Lord Phillips, while accepting that the facts of this case were far from the most compelling indications that the claimant was at risk of succumbing to stress, refused to interfere with the first instance judge's findings.

    The court also noted the claimant's arguments that the breach of the Working Time Regulations itself gave rise to a discrete civil claim against the defendants either for breach of statutory duty or for breach of an implied term of the contract of employment or both.

    For claimants this is a pleasing decision.

    It goes against the majority of decisions on foreseeability since Hatton and Barber. While all cases are fact sensitive, it opens the way for overwork claims to be successful on the basis of a claimant working in excess of 48 hours per week, where the Working Time Directive has not been opted out of, even though the claimant's only complaint was of being tired as opposed to suffering from stress as a result of overwork.

    From an employer's perspective it reinforces the need to ensure that employees working in excess of 48 hours a week sign the opt out under the Working Time Directive.

    Furthermore, in cases where employees are submitting returns indicating an abnormal working pattern in terms of number of hours and number of days worked, inquiries should be made to determine the true picture and whether or not steps need to be taken to provide assistance to that employee.

    Employers must ensure they have their policies in place to deal with stress. Such a policy should, if possible, deal with the issue of the availability of confidential counselling for stress. It is also imperative that all employees, both at management and non-management level, are aware of the policy.

    Ideally you should have documentary evidence to show that your employees have been provided with a copy of the policy.

    The Hone case, from an employer's perspective, really does emphasise, whatever the perceived interpretation of the law, the facts can be interpreted to establish liability.

    While an appeal is always an option, it should be noted that the Master of Rolls,

    Lord Phillips, in this case, commented in his judgment that he was surprised that the appeal was brought.

    The claimant was an employee with an outstanding work record. It had never been an issue that the pressure of work rendered him ill so that he could not continue within his employment. Furthermore, the damages were relatively modest.

    Employers now also have to deal with the HSE Management Standards that came into force on 3 November 2004, which in effect imposes a duty to seek out and assess jobs with an exposure to stress.

    Closing your eyes will no longer be an effective defence strategy. IT

    ' Roddy Macleod is a partner at law firm Weightmans specialising in stress claims