How to “Stress Test” Psychiatric Claims in the Workplace

The last few years have seen a tremendous rise in claims for psychiatric injury caused by alleged stress in the workplace.  A labour force survey in 2014 revealed that there are 487,000 cases of work related stress, depression and anxiety and this included 244,000 new cases.

In this article I consider the principles and tests the courts will adopt in determining whether there is an actionable claim for injury caused by work related stress.

The first point is to illustrate that stress itself is not a formally recognised medical condition that would find an actionable claim in tort.  However, stress induced injury, ie when an individual’s health suffers as an adverse reaction as a result of that individual’s perception of stress is actionable.  This type of injury can be psychological, for example an anxiety disorder or depression.

The seminal case with regard to the courts’ approach in dealing with work related stress claims is the Court of Appeal’s decision in Sutherland v Hatton [2002] EWCA Civ 76.

The Hatton case was in fact four appeals from different County Courts which the Court of Appeal all heard together.  In each of the four cases a Circuit Judge ordered damages for negligence against the claimants’ employers after the claimants had had to stop work because of stress induced psychiatric illness.  Two of the claimants were teachers in comprehensive schools, the third was an administrative assistant at her local authority training centre and the fourth was a raw materials operative at a factory.

The Court of  Appeal allowed the employer’s appeal in three of these cases and in the fourth dismissed the employer’s appeal but “not without some hesitation”.   The Court of Appeal set out a number of practical propositions, guidelines and tests to be applied when dealing with such cases.

The main question is whether the kind of harm to the employee in question is reasonably foreseeable.  This has two components namely (a) an injury to health (as distinct from occupational stress) and which (b) is attributable to stress at work (distinct from other factors).

The issue of foreseeability depends upon what the employer knows (or ought reasonably to know) about the employee.  An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

The test is the same whatever the employment and that there are no occupations which should be regarded as intrinsically dangerous to mental health.

The following factors are likely to be relevant in answering the threshold question concerning foreseeability:-

(a)  The nature and extent of the work done by the employee.  Is the workload much more than is normal for the particular job?  Is the work particularly intellectually or emotionally demanding for this employee?  Are the demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs?  Or are there signs that others doing this job are suffering harmful levels of stress?  Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b)  Signs from the employee of impending harm to health.  Has he a particular problem or vulnerability?  Has he already suffered from illness attributable to stress at work?  Have there recently been frequent or prolonged absences which are uncharacteristic of him?  Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

The Court of Appeal stated that an employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary.  He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.

The Court of Appeal indicated that to trigger a duty to take steps, the indications of impending harm to health arising from stress must be plain enough for any reasonable employer to realise that he should do something about it.

Furthermore, the employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.

The courts will take into account the size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable.  These include the interests of other employees and the need to treat them fairly.

Interestingly, the Court of Appeal stated that an employer who offers a confidential advice service, with referral to the appropriate counselling or treatment services, is unlikely to be found in breach of duty.

The Court of Appeal also added that if the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing an already employee to continue in the job.

In summary, the Court of Appeal indicated that in all cases therefore it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

With regard to causation and quantification of damages in such cases, the Court of Appeal outlined that the claimant must show that the breach of duty has caused or materially contributed to the harm suffered.  It is not enough to show that occupational stress has caused the harm.  Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible.  It is for the defendant to raise the question of apportionment.

Finally, and rather obviously, the Court of Appeal also stated that the assessment of damages will take account of any pre-existing order or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.

The guidelines and fundamental principles outlined by the Court of Appeal in the Hatton case 13 years ago are still very relevant today.

In fact, in the recent case of Yapp v Foreign & Commonwealth Office [2014] EWCA Civ 1512, the Court of Appeal confirmed that the principles outlined in the Hatton case are still to be applied today.

In the very recent High Court case of Bailey v Devon Partnership and HS Trust [Judge Cotter QC 11 July 2014], there was some attempt at some recent fine tuning with regard to the Hatton guidelines where His Honour Judge Cotter QC advised that an employer should have foreseen indications of impending harm that were plain enough for any reasonable employer to realise that he had to do something about it.

In conclusion, although there has been a significant rise in stress related psychiatric injury claims, the courts have laid down stringent guidelines to be utilised in such cases and defendants should be fully aware of them in order to determine any claims that are presented to them on behalf of claimants.

Kulraj Arri

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