DPF Briefing

June 2002

Stressed out?

The Court of Appeal recently overturned three successful work-related stress cases. It did not, as some sections of the media crowed, mean the end of employees’ rights to take their employers to court for causing psychological injury - although the position remains that such cases will succeed only where very specific circumstances can be established.

To some extent the court has clarified the law, while placing the onus on employees to complain or find a new job.

Stress cases, the court said, require particular care in deciding because they give rise to the difficult issues of foreseeability and cause. In turn, deciding whether there has been a particular breach of duty that led to the psychiatric illness may prove difficult.

All of the defendants appealed on the basis that the original court rulings had set too low the trigger for when an employer has to take action. As a consequence the respective courts had found the psychiatric injury to be foreseeable and that the employer was in breach of duty.

Another important aspect of the Court of Appeal ruling is that it made clear there is a distinction between psychiatric ill health and occupational stress. A claimant cannot recover compensation for stress unless it develops into psychiatric ill health as a result of stress at work.

Some of the key propositions set out by the Court of appeal were:

• An employer was entitled to assume that an employee can withstand the normal pressures of the job unless that person is known to be vulnerable. The employer is entitled to take what an employee says at face value.

• There are no occupations that should be regarded as intrinsically dangerous to mental health and to trigger a duty to take steps. The warning of impending harm to health must be plain enough for any reasonable employer to recognise.

• An employer need only take steps which are reasonable in all the circumstances and which are likely to do some good, but if they have a confidential advice service they can escape liability.

• The employee must show that the harm done has been caused by what the employer has failed to do and will succeed only to the extent they can show the employer has contributed to their condition and this will require an assessment of vulnerability.

In each of the Court of Appeal cases the employee suffered from a psychiatric illness. But in one case in which damages were refused, the Court referred to a previously unrelated history of depression, a pattern of absence which was easily attributable to causes other than stress at work, a work load was not excessive in comparison with others’ and, crucially, a failure to complain so her employers could not reasonably have foreseen the development of her condition.

There are parts of the decision that do not sit easily with the Management of Health and Safety at Work Regulations 1999 (MHSWR and the HSE’s approach to safety management set out in its publications.

In particular these require:

• risk assessments; protective measures to deal with health and safety risks;
• an employee’s capabilities with respect to the work they are asked to do to be taken into account ;
• ensuring that employees’ mental health is not put at risk through the work they are required to do.

There are sweeping generalisations in the Court of Appeal’s decision and some stress cases are more complicated and stronger than those considered. But the onus is clearly on employees to make their problems known to their employers. Employees should complain and complain early and frequently and seek medical help. Despite the prevalence of stress in the workplace, health and safety guidance and risk assessments, the Court of Appeal’s view is that there is no obligation on an employer to do anything unless the problem is thrust in their face.

This item has been extracted from an article in Issue 68 of Thompsons Solicitors Labour and European Law Review. A full copy of the article can be accessed on the Thompsons website;
www.thompsons.law.co.uk