Our thoughts on the world of employment law - and beyond.

The stress of stress claims

As a lawyer who specialises in employment rather than personal injury law, I find the many legal issues raised in stress cases slightly, well, stressful for want of a better term.  All sorts of strands of law can be engaged, from health and safety to working hours and harassment to disability, not to mention constructive dismissal.  Most cases where an employee has suffered a mental illness as the result of stress at work, though, tend to be framed as negligence claims.   

So, what is required successfully to make out a negligence claim in relation to stress?  In short, the employee will need to prove to the courts that: (i) the employer has breached its common law duty to take reasonable care of the health and safety of employees; (ii) this has caused the employee injury; and (iii) such an injury was reasonably foreseeable. 

All three of the limbs of this test can be difficult for would-be claimants but in stress claims it is the third (reasonable foreseeability) which can cause particular difficulties, especially in excessive workload cases.  The leading case on psychiatric illness resulting from work-related stress is Sunderland v Hatton, in which the Court of Appeal laid down some “useful practical guidelines” for these cases (see paragraph 43 of the judgment, here).

In relation to foreseeability, much of the case law, including Sunderland, accords with common sense: where an employee raises an issue of stress in the first instance, the courts are more likely to find that it was foreseeable (s)he would suffer an injury if no steps are taken to alleviate the problem.  For example, in Barber v Somerset County Council (2004) Mr Barber, a teacher, wrote “overstressed/depression” on his sick note when he was off for three weeks but nothing was done on his return to work to enquire about the problem or address it.   His subsequent breakdown was therefore found to be reasonably foreseeable.  Conversely, in the recent case of Easton v B&Q plc (2015), there was nothing either generally or specifically to indicate to the employer that the employee was at risk of a stress-related illness; this was not therefore reasonably foreseeable.

Practically speaking, what should employers take from this?  Organisations should consider whether to implement policies on recognising stress and how to manage it.  Managers should be trained to take complaints of stress seriously (whether they are made formally or otherwise), log them and act upon them.  HR should be involved from the outset and consideration should be given to whether to send someone home, refer them to occupational health and/or provide additional assistance, for example through confidential counselling.   Appraisal processes should be used as a routine screening process to identify training and support needs. An employer who can show that it engaged with a stress-related problem, assessed it and took steps with a view to alleviating it is unlikely to attract undue criticism. 

Maybe this whole thing isn’t so stressful after all…

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