Following a wave of occupational stress litigation in the 1990s, the Court of Appeal in Sutherland v Hatton & ors  was left with the unenviable task of trying to provide clear principles for determining liability for a myriad of separate workplace hazards involving stress – from civil servants and teachers who were overloaded with work, to emergency service workers dealing with traumatic conditions.
The main judgment given by Mrs Justice Hale, now Lady Justice Hale, set a ‘threshold test’ that should be applied in these cases as with any claim for compensation for negligence – namely, was there a duty of care, foreseeability, a breach of duty, causation and damage?
The judgment referred to foreseeability, which it regarded as the critical ingredient in establishing a claim. “Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee,” it stated. “Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. 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.”
The Court of Appeal even went so far as to offer clear guidance on the apportionment of compensation in these cases, treating psychiatric harm in the workplace no differently from workplace accidents where there is a pre-existing vulnerability.
Most commentators agreed that the approach adopted by the Court of Appeal made it even more difficult for a claimant to succeed, if this was ever easy. Claimant practitioners quickly realised that undertaking this type of work on a conditional fee arrangement was virtually impossible, with those cases having merit on a liability then falling foul on causation or ultimately being of such low value as to not justify taking the risk.
Since Sutherland, we have seen a number of cases fail under the ‘threshold test’ in both the High Court and before the Court of Appeal. In Pratley v Surrey County Council , a case manager with a high workload was not so overworked to create a foreseeable risk of injury. In Foumeny v University of Leeds , an academic whose department was merged was unable to establish foreseeability. And in Bonser v UK Coal Mining Limited , an IT manager’s claim failed because her condition was not foreseeable.
However, there was a noticeable sigh of relief when one of the claimants in Sutherland, Leon Alan Barber, was given permission to appeal to the House of Lords. This judgment was handed down on 1 April this year. The House of Lords allowed Barber’s appeal essentially upon the basis that the Court of Appeal had failed to apply correctly the test it had formulated to the facts in his case and preferred the trial judge’s analysis of the facts.
While this decision was good news for Barber, it was bad news for claimants because the House of Lords made it clear that it would not interfere with the principles set out in Sutherland.
Any hope that health and safety law would be used to set a higher standard were soon dashed by the Law Lords who, ironically as Barber was a teacher, endorsed the dated judicial statements that an employer should not be treated as a teacher is to a pupil or nanny to a child. The House of Lords lost a historic opportunity to apply more stringent standards to employers so as to reflect modern employment practices. Prevention should be the main goal rather than the misery of personal injury and litigation.
This decision will clearly be welcomed by employers and those who believe that the so-called compensation culture has gone too far and should be curtailed. However, the case tantalisingly leaves open a raft of technical issues relating to how employment contract law could be used for delineating an employer’s duty of care in a stress case. Barber is unlikely to be the last word on occupational stress.
Jeff Zindani is the managing director of Forum Law
In Sutherland v Hatton & ors , the Court of Appeal considered appeals brought by four employees alleging stress-induced illnesses caused by their working conditions. The employees had succeeded in their claims at first instance. They failed in the Court of Appeal.
In her judgment, Mrs Justice Hale, now Lady Justice Hale, considered the causes of mental illness, which “will often be complex and depend upon the interaction between the patient’s personality and a number of factors in the patient’s life”. She stated: “It is not easy to predict who will fall victim, how, why or when.”
Against the backdrop of the complex and subjective nature of stress, Judge Hale set herself the task of striking a balance between the interests of the employers and employees. She used the issue of foreseeability as the legal mechanism for striking the balance. She rejected the submission that for an employer to act, only “clear and unequivocal” signs of an impending breakdown should suffice, but said: “In view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that they should do something about it.”
She emphasised that common sense was a central role to the concept of foreseeability. “Unless they know of some particular problem or vulnerability, an employer is usually entitled to assume that their employee is up to the normal pressures of the job,” she stated.
In Barber v Somerset County Council , the House of Lords applied the test of foreseeability to the facts of the case with different results.
Barber was a former teacher in a Somerset County Council school and was one of the unsuccessful claimants in Sutherland. In his appeal to the House of Lords, he did not challenge the principles of law elucidated by Judge Hale, but argued that the facts sustained a finding that the council was in breach of the duty of care it owed him.
In the House of Lords, Lord Justice Walker upheld the finding of the trial judge and reversed the Court of Appeal decision. Walker LJ cited the passage of Justice Swanwick in Stokes v Guest, Keen and Nettlefold (Bolts & Nuts) Ltd  as representing the best statement of general principle as to the duty of care owed by employer to employee. It stated: “The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of their workers in the light of what they know or ought to know.”
Walker LJ then considered the ratio of the Court of Appeal and the question of if and when the school’s duty to take some action was triggered. He found that after Barber had returned to work, having been off with stress, and had seen each member of the school’s senior management team, “at the very least the team should have taken the initiative in making sympathetic inquiries about Barber when he returned to work, and in making some reduction in his workload to ease his return”.
The House of Lords rejected arguments raised by the defendant that the school’s resources at the time were stretched and there would have been nothing that could have been done for him. It stated: “Even a small reduction in his duties, coupled with the feeling that the senior management team was on his side, might by itself have made a real difference.”
For employers, the message is clear enough – your duty is to be reactive at an early stage. If an employee has been off work with stress, their employer should regard themselves as under a positive duty to take the initiative. What will be involved in taking the initiative will be case-specific. It may entail no more than making sympathetic inquiries and making such reduction in the employee’s workload as is reasonably achievable, or, where practicable, it might mean shifting that employee to another job. The duty upon employers is not to jump through hoops, they simply have to not close their ears and minds to their employee’s plight when brought to their attention.
Adam Korn is a barrister at Seven Bedford Row