On 5 February, the Appeal Court handed down judgment in four conjoined appeals (Hatton v Sutherland & ors [2002] EWCA Civ 76) concerning claims for occupationally induced stress.
The structure and content of the judgment indicates the court's intention to provide comprehensive guidance on a wide range of legal and evidential issues arising in stress at work claims. There is no indication of any further appeal.
The appeals concerned actions brought by claimants with differing occupations. Two were experienced teachers in public sector comprehensive schools. The third was a seasoned local authority administrative assistant. The fourth was a factory worker.
In each case under appeal, the trial judge had found for the claimant on the issue of liability. In Hatton, Barber and Bishop, the court allowed the employers' appeals. In Jones, the employer's appeal was dismissed “although not without hesitation”. In Jones, the employer knew that an overworked employee was being badly treated by a manager and could have done something to prevent it.
The Appeal Court's approach was to analyse the claims by reference to the basic principles applicable to any claim of negligence for damages for personal injuries – duty of care, foreseeability, breach of duty, causation, apportionment and quantification.
The court set out 16 “practical propositions” of general application in claims for occupationally induced stress. Stress at work claims are not subject to any special control mechanisms – the ordinary principles of employers' liability apply. The threshold question is whether psychiatric harm to the employee was reasonably foreseeable. 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 they know of some particular problem or vulnerability. And there are no occupations that should be regarded as intrinsically dangerous to mental health – the test is the same whatever the employment.
Factors relevant to the issue of foreseeability include the nature and extent of the work done by the employee and signs from the employee of impending harm to health. The employer is generally entitled to take what they are told by the employee at face value. To trigger a duty to take steps, the indications of impending harm to health arising from stress must be plain. The employer is in breach of duty only if it has failed to take steps that are reasonable in the circumstances. The size and scope of the employer's operation, its resources and demands are relevant in deciding what is reasonable.
An employer can only be expected to take steps that are likely to be effective. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. However, 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 a willing employee to continue in the job.
The claimant must show that a breach of duty, as opposed to occupational stress, caused the harm suffered. Where the harm suffered has more than one cause, the employer should pay only for that proportion of the harm caused by their breach of duty, unless the harm is truly indivisible. It is for the employer to raise the question of apportionment.
The assessment of damages should take account of any pre-existing disorder or vulnerability and the chance that the claimant would have succumbed to a stress-related disorder in any event.
The court referred expressly to the view that claims for occupationally induced stress were “the next growth area in claims for psychiatric illness” and the need for the law to balance the individual interests of the employee with the interests of the employer. In emphasising the need for more rigorous legal analysis, the decision redresses the balance towards the employer.