Stress

A series of high profile civil cases in recent years have helped focus employer attention on the issue of workplace stress. In practice, “stress” cases are exceptionally difficult and expensive to pursue. These cases share some important features. In particular, successful claims require persuasive expert medical evidence that:

• the worker has suffered psychiatric injury. Stress on its own is not enough;

• the psychiatric injury was caused by work-related factors such as, for example, bullying, poor and unsupportive line management, excessive workload, long hours, poor work systems and processes and so on;

• psychiatric injury to this particular employee was reasonably foreseeable, for example, because the employer has been warned of the risk of psychiatric injury, either directly by the employee or a GP or rep, or because the employee has a past history of mental health problems (for example, previous sickness absence for mental health-related reasons) known to the employer; and

• there was something the employer, acting reasonably, could have done to avoid the injury.

Typically, successful cases in recent years have involved an already vulnerable employee who returns to work after an absence linked to mental health problems at work such as stress or depression, and who is not given the on-going support and care needed to reintegrate effectively back into the workplace, leading to a further breakdown of mental health. It is the employer’s knowledge of the employee’s pre-existing vulnerability that makes the later breakdown reasonably foreseeable, fixing the employer with liability for the employee’s injury and loss.

The key cases that address an employer’s liability for personal injury caused by stress are Sutherland v Hatton [2002] IRLR 263 CA and Barber v Somerset County Council [2004] IRLR 475 HL. These cases confirm that an employer’s liability for psychiatric harm is no different from its liability for physical harm. In both cases, the test is what was reasonably foreseeable to the employer in the particular circumstances of the case. There are no “inherently stressful” occupations.

In Sutherland v Hatton, the Court of Appeal issued some useful guidance in the form of 16 “practical propositions”. The complete judgment, including the guidance, can be found on the BAILII website at:www.bailii.org/ew/cases/EWCA/Civ/2002/76.html.