Emma Burrows, employment law specialist at Trowers & Hamlins Solicitors, takes a look at recent research undertaken by the Health and Safety Executive regarding work related stress.

According to recent research undertaken by the Health and Safety Executive, up to five million people in the UK feel “very” or “extremely” stressed by their work, with the effect of work-related stress costing society an estimated £3.7 billion a year. Work-related stress is clearly a topical issue and it is necessary for employers to be alert to the potential problem of stressed employees.

Following the judgment in Sutherland v Hatton [2002], in which the Court of Appeal established guidelines for determining an employer’s liability for psychiatric injury caused by stress at work, employers have been able to rely on the assumption that their employees can withstand the normal pressures of their jobs. However, following the House of Lords’ decision in Barber v Somerset County Council this month, the duty to take reasonable steps to help an employee having difficulty in coping seems to extend further than initially anticipated by the Court of Appeal.

Facts of Barber
Mr Barber was the head of mathematics at a school in Somerset. In 1995 a restructure took place at the school and Mr Barber was appointed to the position of Mathematical Area of Experience Co-ordinator. Mr Barber took on additional responsibilities as part of his new role, and had to work long hours to discharge them. He developed symptoms of depression in 1995, and, in 1996, took three weeks off work, during which time his medical certificates stated that he was suffering from stress and depression.

On Mr Barber’s return to work, he had a meeting with the headmistress, in which he told her that he was finding things difficult, and was not coping very well with his workload. He was told that all the staff were under stress. Mr Barber also had a couple of separate meetings with the two deputy heads and, again, nothing was done to relieve the pressure on him.

Mr Barber’s symptoms continued during the summer holidays. At the beginning of the Autumn term, the temporary head teacher told one of Mr Barber’s colleagues that he was concerned about Mr Barber and hoped that he would keep an eye on him. In the event, Mr Barber was never asked how he was getting on and his workload remained unaltered.

In November 1996, Mr Barber had a nervous breakdown at work. He took early retirement and did not return to work. Mr Barber sued his employer for damages for personal injuries. The court found in his favour and he was awarded general and special damages.

Somerset County Council appealed the first instance decision and Mr Barber’s case was one of the four conjoined appeals in Sutherland v Hatton heard by the Court of Appeal.

Sutherland v Hatton
All the appeals heard in Sutherland v Hatton were against awards made to employees for psychiatric illness caused by stress at work. The Court of Appeal used its judgment to formulate guidelines to be considered where an individual makes a complaint of psychiatric illness brought about by stress at work.

These guidelines are as follows:

• is the harm to the employee reasonably forseeable?;
  
• the issue of foreseeability will depend on what the employer knows, or ought reasonably to know, about the employee. Whilst it may be harder to foresee mental conditions than physical injuries, it may be easier to foresee these in a known individual;
  
• unless the employer knows of a particular problem or vulnerability, it is usually entitled to assume that the employee can withstand normal job pressures
  
• no occupation should be regarded as intrinsically dangerous to mental health;
  
• various factors relevant to the foreseeability question were highlighted by the Court of Appeal, including the nature and extent of the work done by the employee, whether the workload was much more than is normal for the particular job, and whether the demands being made of the employee were unreasonable when compared with the demands made of others in the same or comparable jobs;
  
• it is not generally the responsibility of an employer to make searching enquiries of the employee or his medical advisors. The 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;
  
• to trigger the employer’s duty to take steps, the indications of likely harm to the employee’s health must be obvious enough for the reasonable employer to realise that something should be done;
  
• where an employer offers a confidential advice service with referral to counselling, it is unlikely to be in breach of its duty;
  
• the employer’s size and scope will be taken into account, together with its resources and the demands it faces which are relevant in deciding what is reasonable; and
  
• it will not amount to a breach of duty to allow a willing employee to continue in a job if the only reasonable step involves dismissal or demotion.

It was held that it will be necessary for an employee to identify the steps that an employer could and should have taken. It must also be shown that the employer’s breach of duty caused or materially contributed to the harm suffered by the employee.

The Court of Appeal made it clear that an employer will only be regarded as being in breach of the duty, if it fails to take steps which are reasonable in the circumstances. It held that Somerset County Council had not been in breach of its duty as an employer.

The House of Lords’ Decision
The House of Lords, by a majority, overturned the Court of Appeal’s decision in Mr Barber’s case. However, at the same time, it made it clear that it believed that the Court of Appeal’s interpretation of the law relating to workplace stress claims was useful practical guidance. The House of Lords emphasised that each case will depend on its own facts and adopted the statement of Swanwick J in Stokes v Guest, Keen and Nettleford (Bolts and Nuts) Ltd [1968], “..the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know…”, as the best statement of general principle.

The House of Lords held that the Court of Appeal had failed to give adequate weight to the fact that Mr Barber, who was an experienced and conscientious teacher, had been off work for three weeks with no physical ailment or injury, his absence being certified by his doctor as being due to stress and depression. The House of Lords was of the view that the senior management team should have made enquiries about Mr Barber’s problems and seen what they could do in terms of making some reduction in his workload to ease his return. It was held that even a small reduction in Mr Barber’s duties, coupled with the feeling that the senior management team was on his side, might, by itself, have made a real difference. In any event, Mr Barber’s condition should have been monitored and, if it did not improve, some more drastic action would then have had to have been taken.

Interestingly, the House of Lords found that the issue of breach of the County Council’s duty of care to Mr Barber was fairly close to the borderline. It did not view it as a clear case of a breach of duty, any more than it was an obviously hopeless claim. It held that the judge who saw and heard the witnesses, at first instance, came to the conclusion that the employer was in breach of duty, and therefore there was insufficient reason for the Court of Appeal to set aside his findings.

Dissenting Decision
In a majority decision, Lord Scott was the only voice of dissent. He pointed out that schools operate under considerable difficulties, stating that he did not feel there were many teachers whose workload did not place them under considerable continuous pressure which might be apt to cause stress, and sometimes depression. He extended this to other professional employees, such as nurses and doctors. Lord Scott stated that in under-funded institutions providing vital social services, there is often very little that an employer can do about stress problems. An individual’s colleagues are likely to be carrying an equally heavy workload, and Lord Scott questioned whether it was therefore fair to ask them to assume a greater burden in order to relieve the stress on a particular individual. He conceded that a school may, as a last resort, have to ask for a supply teacher, but went on to say that the school was entitled to expect, first, to be kept fully informed by the teacher in question of his or her problems.

Lord Scott believed that the trial judge, at first instance, had set the duty of care required of the County Council at too high a level and that the Court of Appeal had acted legitimately in adjusting the standard to a more realistic level.

Practical Advice
As the House of Lords has approved the guidelines set out by the Court of Appeal it will be necessary for employers to take these into account when dealing with potential psychiatric illness scenarios. Whether or not action should be taken in individual circumstances will depend on whether the steps the employer could take to alleviate the situation are reasonable in the circumstances.

Unfortunately for employers, though Lord Scott made many sound points in his dissenting judgment, the duty of care will henceforth fall on the more onerous side of what is considered to be reasonable.

Although an employee may not specifically raise the issue of not being able to cope with their work employers cannot ignore any potential warning signs. Employers should:

• Keep up-to-date with the developing knowledge of occupational stress and institute proper precautionary measures;
  
• Look out for periods of absence certified as being due to stress or depression;
  
• Monitor individuals who have never previously encountered difficulties in carrying out their jobs but now seem to be struggling, and see if you can assist them;
  
• Listen sympathetically to complaints about work load and attempt to deal with them constructively (even if other employees are similarly burdened and seem to be coping); and
  
• Consider instituting temporary cover if an individual does not seem to be improving.