Are Stress Claims Becoming Easier to Prove?

Wednesday 7 July 2010

In 2006 it was estimated by HSE that absence cost the UK economy approximately £12 billion, of which an estimated £3.7 billion was stress related. Current estimates place the cost of stress related illness to the UK Economy in the region of £5-7 billion per annum.

With stress related illness on the rise, is it reasonable for the Courts to provide employees with greater protection?

Historical Case Law On Work Related Stress

It is important to remember that establishing breach of duty in work related stress claims is no different to the statutory and common law duties placed on an employer in any other employers liability claim however, often the biggest obstacle in stress claims is proving forseeability of injury.

One of the earliest successful claims for work related stress was Walker v Northumberland County Council (1995) 1 ALL ER 737. In Walker it was found that the Defendant had been put on notice of the risk to the Claimant’s health after the Claimant had an extended period off work with stress related illness. Therefore when the Claimant returned to work to the same excessive workload which had caused the Claimant to be off work with stress initially, the Defendant was held to be liable for the Claimant’s injuries.

The current legal precedent in this field is Hatton v Sutherland (2002) EWCA Civ 76. In Hatton the Court sought to set a series of guidelines by which future cases may be decided. These guidelines are as follows:

1. The ordinary principles of employer’s liability apply to claims for work related stress.
2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. 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.
4. There are no occupations which should be regarded as intrinsically dangerous to mental health.
5. Factors likely to be relevant in answering the threshold question include:
   1. The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
   2. Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
6. The employer is generally entitled to take what he is told by his employee at face value and is not generally under a duty to making searching enquiries.
7. 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.
8. The employer is only in breach of duty if he has failed to take the steps which are reasonable in all the circumstances.
9. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable.
10. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
11. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty
12. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
13. In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
14. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered.
15. 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, unless the harm is truly indivisible.
16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.

All subsequent cases have considered the above guidance when reaching decisions on stress claims however more recent cases suggest that the Court may, albeit slowly, be relaxing the stringent conditions associated with proving forseeability.

Certainly the older cases on work related stress have been broadly based around the principle that a Claimant would have had to have had time off work with stress previously so as to place the employer on notice of the potential harm to the employees health, before the employer would be found to be liable for the injuries.

More Recent Cases

In Intel Incorporation (UK) Limited v Daw (2007) EWCA Civ 70, the Court of Appeal considered the guidance given in Hatton. The case involved an employee who had been employed with the Defendant for a number of years. It was accepted that the Claimant was ‘an able, committed and very conscientious employee’.

The Claimant complained of excessive workload and conflicted reporting lines but, unlike Walker, the Claimant had not had any significant time off work with stress. However the Claimant in Intel was successful in her claim.

The Court found that the employer had been given adequate notice of impending harm to health. The Claimant had been found in tears at her desk by her line manager. The Court held that in such circumstances an employer should have made further enquiries as to the reason for the employee to have been upset.

The Claimant in Intel had also sent her direct line manager a detailed memo explaining the many issues surrounding her work. The Claimant had repeatedly complained about being overworked and the lack of resources. It was further clear that the Claimant was working excessive hours. The Court found that, in the context of the frequent complaints made by the Claimant, urgent action should have been taken by the Defendant to prevent injury. The various assistance promised to the Claimant never materialised.

In Intel the Defendant argued that as they had offered the Claimant a confidential counselling service in accordance with Hatton that they were not in breach of their duty of care. The Court of Appeal rejected this argument stating that the provision of a confidential counselling service would not have made any material difference in the Claimant’s case as the Claimant’s difficulties could only have been resolved by the management reducing her workload.

On the facts of the Intel case, the Claimant was able to prove forseeability of injury as a result of the above factors. The Court felt that the Claimant had adequately demonstrated that she was likely to suffer illness as a result of her employment if urgent action was not taken. It was acknowledged by the Defendant that the Claimant required assistance but this never materialised, despite the Claimant’s continuing complaints.

In Dickins v O2 plc (2008) EWCA Civ 1144, the Claimant had not any meaningful time off work as a result of stress (save for 2 days) prior to going off work with stress and pursuing a claim which was ultimately successful.

In Dickins the Claimant advised her employers that she was not coping with some aspects of her job and that she was ‘at the end of her tether’. The Claimant expressly warned her employer that her employment was causing her to become ill. The Claimant had a meeting with her line manager in which she advised that she was ‘stressed out’ and that she was struggling to get out of bed on a morning to come to work. The Claimant requested that she be allowed 6 months off work which she called a ‘sabbatical’.

No meaningful intervention was taken by the Defendant following this meeting and the Claimant again made further complaints to her line manager to no avail. The Court of Appeal found that the Defendant were liable for the Claimant’s injuries as they had failed to act on the Claimants complaints. It was apparent that the Claimant was in need of assistance but this was not provided.

Conclusion

Are stress claims becoming easier to prove? No they are not. The evidential burden on the Claimant is extremely high however recent cases suggest that the tide may changing and the Court may be more willing to award damages in such cases.

Often the conditions suffered as a result of stress related illness are very debilitating and claims for work related stress tend to be of particularly high value and of particular importance to the individual Claimant. Individuals who suffer with stress will often have prolonged periods off work and often cannot return to their employment with the Defendant. In addition, Claimants will often experience difficulties obtaining alternative employment as a result of their medical history.

Certainly from the above cases and the claims I have seen, Claimant’s in work related stress claims tend to be committed employees for whom the employer has enjoyed several years valuable service. In such circumstances, it is my opinion that the Courts should, in appropriate circumstances, look to protect the employee when the employer has reaped the benefits of the employees prolonged hard work only for the employee to suffer illness as a result.