On 5 February the Court of Appeal gave a landmark judgment in four stress in the workplace claims (Hatton v Sutherland). All four claimants had succeeded in the county court, but only one survived the Court of Appeal.
The four claimants - two public sector teachers, an administrative assistant and a raw materials operative at a factory - all suffered from recognisable psychiatric illnesses and the issue was whether their employers were liable in negligence.
In deciding each case on its facts the Court of Appeal set out the background and particular difficulties with stress-related claims; clarified the law and gave some good practical guidance for employers.
They found ordinary principles of employers' liability (EL) apply to work-related stress claims.
However, the threshold test is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) a recognisable psychiatric injury, which (b) is attributable to stress at work (as distinct from other factors).
Forseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee.
The test is the same whatever the employment. The court no longer recognises the categorisation of "stressful" occupations.
Relevant factors include the nature and extent of the work done by the particular employee and signs from the employee of impending harm to health.
An employer is generally entitled to take what he is told by an employee at face value. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise he should do something about it.
An employer is in breach only if he has failed to take the steps that are reasonable in the circumstances. The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; as are the interests of other employees.
An employer who offers confidential advice service with referral to appropriate counselling or treatment services is unlikely to be found to be in breach; if the only reasonable step would have been to dismiss or demote the employee, the employer will not be in breach in allowing a willing employee to continue.
The claimant will have to identify the steps the employer both could and should have taken and that the breach has caused, or materially contributed to, the harm suffered. Where the harm suffered has more than one cause, the employer should pay only for the proportion of the harm suffered that is attributable to his wrongdoing.
In assessing damages the court will take account of any pre-existing disorder and of the chance the claimant would have succumbed to a stress-related disorder in any event.
Claimants are going to find it much harder now to succeed with a negligence claim. Moreover, where the employer offers confidential counselling services this is going to be almost insuperable. Risk managers, underwriters and brokers should take note of the risk assessment approach by insureds in this regard.
Indirectly, more employees may be encouraged to go to the employment tribunal where it is possible to recover compensation for injury to feelings and personal injury. Although a claimant will have to establish a good unfair dismissal claim he would not have to pass the now formidable foreseeability test.
