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Landmark cases in the civil courts for personal (psychiatric) injury
[ch 3: pages 33-35]A series of high profile cases in recent years have helped focus employer attention on the issue of workplace stress. These are civil court cases based on allegations of personal (psychiatric) injury. Whereas employment tribunal claims must be brought within a short three month time frame, individuals have three years from the date of the injury in which to bring a civil (personal injury) claim.
These cases are exceptionally difficult and expensive to bring, as well as being stressful and protracted, often lasting several years. The risks involved are greater than those involved in bringing a claim in the employment tribunal, especially because the loser is usually required to pay the winner’s legal costs, as well as their own.
In summary, these cases demonstrate that a worker wishing to bring this sort of claim must produce persuasive expert medical evidence showing:
• that he/she has suffered psychiatric injury — stress on its own is not enough;
• that 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;
• that 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 which is known to the employer. It is not enough to tell the employer that the employee is suffering from stress. Instead, it should be clear to a reasonable employer, looking at the surrounding circumstances, that the worker is likely to suffer from psychiatric injury if action is not taken; and
• that there was something that the employer, acting reasonably, could have done to avoid the injury.
Those cases that have succeeded in recent years have usually involved an already vulnerable employee returning to work after an absence linked to mental health problems at work such as stress, and not being given the on-going support and rehabilitative care required to reintegrate him or her effectively back into the workplace on a long-term basis.
It is the employer’s knowledge of the employee’s pre-existing vulnerability that makes any subsequent breakdown reasonably foreseeable, fixing the employer with liability for the employee’s loss.
In Walker v Northumberland County Council [1995] IRLR35, John Walker, a member of UNISON public services union, was a social worker who had two nervous breakdowns and was retired on medical grounds as a result of increasing workloads. He had repeatedly sought extra staff and administrative back-up but his requests were refused. His employers were found guilty in the High Court of breaking their common law duty of care to him.
Since then, the key cases have been Sutherland v Hatton [2002] IRLR 263 CA and Barber v Somerset County Council [2004] IRLR 475 HL:
Mrs Hatton taught French in a comprehensive school. She did not tell her employer that she was suffering stress from overwork and there was nothing in her behaviour to suggest to the school that she was suffering from work-related stress prior to her breakdown. Her lawyers argued unsuccessfully that teaching was such a manifestly stressful profession that employers should have procedures in place that would help reluctant individuals like Mrs Hatton to come forward and seek help. The Court rejected this view, concluding that employers are not generally obliged to inquire after their employees’ mental health and that if they do make inquiries, they are entitled to take responses at face value, unless something in the surrounding circumstances would alert a reasonable employer to the employee’s problem.
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 they should do something about it.
Sutherland v Hatton [2002] IRLR 263 CA
www.bailii.org/ew/cases/EWCA/Civ/2002/76.html
Mr Barber taught Maths at a comprehensive school in a deprived area of Bridgewater. He developed depression through overwork following a restructuring, and eventually lost control in a classroom, leading to his immediate retirement from teaching. He tried several times to raise with his managers the fact that he was not coping, although he was not explicit about his symptoms, which included weight loss, sleep deprivation and out of body sensations.
The House of Lords concluded that once Mr Barber approached various members of the management team to tell them of his difficulties with overwork, this created a duty of care owed to him by his employer to do what it could to support him. Even a small change, such as introducing a supply teacher to remove some of his teaching burden, might have made a difference and avoided Mr Barber’s breakdown.
Barber v Somerset County Council [2004] IRLR 475 HL
Both of these cases demonstrate that, in principle, an employer’s liability for psychiatric injury is no different from the liability for physical injury. There are no “inherently stressful” occupations and instead, each set of circumstances will be assessed based on its own facts. In Sutherland v Hatton, the Court of Appeal issued some useful guidance on the factors likely to give rise to liability.
The position in Barber was restated in another leading case, Hartman v South Essex Mental Health and Community Care NHS Trust [2005] IRLR 293:
Mrs Hartman had a long history of mental health difficulties, including treatment for depression and anxiety, over a period of around ten years prior to joining her employer, a children’s home, as a nursing auxiliary. Before joining the permanent staff, she was screened by the Trust’s occupational health department. This required her to complete a health screening questionnaire in which she disclosed a past breakdown and revealed that she was taking sleeping medication and tranquilisers. She was passed as fit to work. The information was disclosed by Mrs Hartman to occupational health on a confidential basis. It was not passed to the employer.
A tragedy later occurred at the children’s home, when one of the children was accidentally run over and killed. Although not present at the scene, Mrs Hartman administered first aid and accompanied the child to hospital. She subsequently developed a mental health condition.
However, the Court concluded that Mrs Hartman’s employer could not be taken to have known she was vulnerable to mental breakdown, because the information about her past medical history was given confidentially to the occupational health department. Giving information to an occupational health department (whether internal or external) on a confidential basis will not result in an employer having knowledge of an employee’s mental health condition. As the employer was unaware of Mrs Hartman’s pre-existing mental health difficulties, the Court decided that it could not be expected to appreciate that she was vulnerable to breakdown. Mrs Hartman’s claim was unsuccessful.
Hartman v South Essex Mental Health and Community Care NHS Trust [2005] IRLR 293
www.bailii.org/ew/cases/EWCA/Civ/2005/6.html