Case one

Case one
The two female claimants had worked together at the defendants' bank branch since 1988 (one had been employed by the company since 1967). They alleged that, as a result of work changes and an increased workload, they suffered stress-related illness, causing them both to cease work for a period. There was no issue that the defendants knew the cause of their absence from work was stress.

On their return, they said they were allowed to work shorter hours for a time, but in a small room facing the wall. After a few weeks, work pressures reverted to normal. The second claimant had increased pressure due to the implementation of a new computer system. They argued that the defendants knew or ought to have realised the risk of recurrence of stress, and knew it had recurred by the claimants' demeanour and a memo referring to their stress.

Both ceased work in early 1996, suffering from stress-related illness. The agreed medical evidence was that the claimants were suffering psychiatric illness, which arose as a result of their work. The court was called in to decide which aspect of their work was causing stress.

The defendants disputed liability, arguing that the claimants were not over-worked, but resistant to the changes in the banking industry in the early 1990s. The defendants relied on the absence of objective signs of the re-emergence of stress and positive comments given by the claimants in appraisals of their work.

There are mutual duties here: the employer has a duty to enquire where they have reason to believe problems exist, but the employee has a duty to report such problems. Complaints are more significant in this type of claim than in other employers' liability claims. There was insufficient evidence of overt manifestations of stress or complaint. An employer could act only on what they were told or might reasonably be expected to observe.

There was no evidence to support the contention of the claimants that they were being "worked into the ground". The court considered the defendant's calculations that the claimants were working just over 40 hours per week essentially accurate, and had to impose some realism as to the boundaries of reasonable demands and pressures. The circumstances of these claimants were unlike those in Walker vs Northumberland County Council, where Mr Walker was undertaking work of an intrinsically stressful nature.

As regards change, the court said that although change per se could never constitute a head of claim, there might be circumstances where hastily or insensitively introduced change or change noted by the employer to be beyond the employees' ability might found liability. In this case, changes in the bank had not generally affected other employees. Here, there had been marked alteration in work practices and there was evidence that previously there had been a "comfort zone" at work. There was no cogent demonstration that the claimants had been overburdened by work. Here, the claimants' perception of their working life was wrong by reason of a reluctance to go along with the inevitable changes in the climate of banking. The judgment was for the defendants.

The successful defence of this claim saved the insurers significant sums of money in two ways:

  • The high value of each claim. The pleaded claims for special damages were £278,000 (first claimant) and £356,000 (second claimant). The potential was much higher – a care claim could have been put forward. One claimant contended that she couldn't go out unless accompanied by her mother. With a care claim added, the potential value would have been close to seven figures.
  • The union funding the claims is now likely to be much more wary of running these types of claim, and the difficult experience of the claimants in cross-examination is likely to have made an impression on other employees hearing about the case.

    The case shows:

  • That legal advisers should consider whether expert evidence should be obtained in these types of cases. Failure to obtain this may cause difficulties, particularly in establishing the relevant standards to be applied in the industry.
  • Just because an employee has one period off work with stress does not mean they are permanently vulnerable to stress. An employer cannot be taken to have permanent constructive knowledge of an employee's vulnerability to stress just because of one occurrence.
  • The absence of clear complaints is of importance. The court spoke of "a mutual duty" on employee and employer.
  • The idea that a change in work practices can be a negligent cause of stress per se is rejected.
  • It is important to consider issues of causation independently of the experts. It is necessary to ascertain what precisely was the work-related stressor and whether that cause was negligent.

    Case two
    The claimant was a teacher employed at the defendant's school for special needs children from 1983 to 1996. She alleged that, by September 1996, the defendant should have been on notice of the fact that she was not a person of ordinary fortitude because she had been subject to a number of assaults and injuries perpetrated by children and an incident where the claimant was chastised by the headmaster for boasting about her part in an inspection, following a formal complaint from another member of staff. As a result, she said she had suffered severe physical symptoms of stress.

    At the beginning of the autumn term, the claimant was allocated to take a junior swimming class on Monday mornings (previously, she had taken senior swimming classes on Fridays). She expressed her reluctance to change to the class and, when asked for an explanation, said she didn't want to get her hair wet.

    On September 6, the claimant was again asked why she wouldn't swim on Mondays. She repeated her explanation, to which the headmaster stated she could wear a swimming cap. She then said she was having problems with hormone replacement therapy and was subject to irregular bleeding. The headmaster suggested she come prepared to swim, but that someone could take her place if she was indisposed.

    On September 9, the claimant told her GP that the headmaster had bullied her. She developed a psychiatric condition, as a result of which she was retired on the grounds of ill health.

    Her case was put on the basis that the headmaster was in breach of his duty towards her at their meeting, in that his response was insensitive because he should have been aware she was not a person of ordinary fortitude.

    The defendant said stress and personality conflicts were part of most jobs and could not be avoided. Furthermore, although the claimant had presented subjective evidence of her perceptions about her job, there was no evidence that the defendant had been put on notice of the risk she might have sustained or be likely to sustain psychiatric injury as a result of any aspect of her employment.

    Judgment was given for the defendant and the claimant ordered to pay the defendant's costs. The claim was worth in the region of £150,000.

  • Chris Phillips is head of insurance litigation and Judith Martin is an associate at Halliwell Landau, Manchester. Suzanne Liversidge heads the insurance team at the Sheffield office.