Richard White, specialist employment solicitor at Withy King, considers a recent case in which the court of appeal overturned a high court decision concerning liability for stress at work.

Claims from employees for injuries arising from stress at work have been the subject of a large amount of case law in recent years, the effect of which has been to limit the scope of employees to succeed with such claims.

Deadman v Bristol City Council

Mr Deadman had been employed by the City Council for some 30 years. In February 1998 a female employee made an allegation of harassment against him. The allegation was dealt with under the City Council’s harassment procedure. The adjudicating panel found the allegation to be proved. However, the panel consisted of two managers instead of the three specified in the relevant procedure. The result was that Mr Deadman successfully appealed their decision. A decision was later made to rehear the original complaint, a decision which was communicated to Mr Deadman by leaving a letter on his desk.

The decision

Initially the high court awarded damages to the claimant on the basis he had suffered from psychiatric stress caused by:

• The employers equal opportunity policy stating that a panel of three would be convened in such cases, but in fact there were only two members of the panel. This resulted in an initial decision being overturned and a new panel formed.




• The fact that the policy had been incorporated into the contract of employment and that any investigations would be conducted “sensitively” had been breached.

However, the court of appeal subsequently ruled that the City Council were not liable on the basis that:

• A policy requiring the employer to handle complaints of harassment “sensitively” was aspirational and did not form part of the claimant’s contract of employment.




• Although the convening of a panel with two, rather than three, members was a breach of a contractual term, it was not reasonably foreseeable that the claimant would suffer a psychological reaction as a result of the breach.




• It was not negligent of the employer to inform the claimant of its decision “by leaving a bald letter on his desk” – it is the content of the decision, not the manner of transmission which is important.

Comment

Most stress at work claims are pursued on the basis that the employer has been negligent (ie. breached its duty of care) in the way it has treated the employee. In this case, the court of appeal have made it clear that a claimant will not often have a better chance of success in a stress at work claim by pursuing the claim as a breach of contract, rather than in negligence.

This case is another example of the tendency since the case of Sutherland v Hatton in 2002 to limit the scope of stress at work claims making it more difficult for employees to succeed with such claims. As a reminder, the court in Sutherland set out a number of practical propositions for deciding whether an employer should be held liable for stress:

• Was this kind of harm to this particular employee reasonably foreseeable?




• Foreseeability depends on what the employer knows (or ought reasonably to know) about the individual employee.




• Because of the nature of mental disorder, it is harder to foresee than physical injury.




• 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.




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




• 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 costs and practicability of preventing it, and the justifications for running the risk.




• The claimant must show that that breach of duty has caused or materially contributed to the harm suffered.




• 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.

However, whilst the ability of employees to succeed with these type of claims has been limited in recent years as a result of the above, it is not always straight forward for an employer to avoid liability. As such, employers should be on the look out for warning signs that may suggest an employee may be suffering from stress at work, such as:

• Are there any signs of impending harm to health?




• Does the employee have a particular problem or vulnerability?




• Has the employee already had time off owing to stress at work?




• Have there been frequent of prolonged periods of absence which are uncharacteristic?




• Has the employee complained about factors which are giving rise to problems with his/her health (e.g. an unmanageable workload)?

For further advice on this topic, please contact Richard White, specialist employment solicitor at Withy King, on 01225 425731 or email richard.white@withyking.co.uk