Ian Mann
Stress at Work Claims: An Employer’s Guide to avoiding the pitfalls
1. Prolonged stress built up over the course of time
through exposure to an excessive workload, long working
hours or the breakdown of a working relationship can go
unnoticed until too late.
The question for employment/personal injury lawyers is when
will an employer be liable for a psychiatric illness that
is induced by workplace stress? The answer in legal terms
is no different to the question of liability for any other
injury: when the risk of injury, in this case a psychiatric
illness, is foreseeable. Was it foreseeable that this
particular employee would suffer a psychiatric illness and
not just work-related stress?
SUTHERLAND v HATTON: THE 16 POINT PLAN
2. In Sutherland v Hatton 2002 IRLR 263 the Court of Appeal
laid down guidelines as to how courts should deal with
negligence claims made against employers by employees with
psychiatric injuries.
3. The Court of Appeal stated that an employer will escape
liability for an employee's psychiatric injury unless it
was reasonably foreseeable that the employee in question
would suffer such an injury as a result of occupational
stress. That of course is not a new principle.
4. The Court made it very clear that there are no
occupations which are so intrinsically stressful that
psychiatric injury is always reasonably foreseeable.
5. In the view of the Court the answer to the question of
foreseeability will depend upon the relationship between
the particular demands of a job and the particular
characteristics of the employee concerned. Foreseeability
is whether this kind of harm to this particular employee
was reasonably foreseeable i.e. injury to health
attributable to stress at work. The Court therefore set out
and listed a number of factors which were relevant to the
issue of foreseeability and these factors were split into
two groups.
6. The first group related to the demands of the job and
included the following considerations:-
• The nature and extent of the work done by the employee;
• Whether the employee's workload is much greater than is
normal for the kind of job which he or she performs;
• Whether the employee's work is particularly
intellectually or emotionally demanding;
• Whether demands being made of the employee are
unreasonable when compared with the demands made of others
in comparable jobs;
• Whether there are signs that others doing the same job
are suffering harmful levels of stress;
• Whether there is an abnormal level of sickness
absenteeism in the employees job or department.
7. The second group of factors reflected the view of the
Court of Appeal that the most important question centres on
what the employer knew, or ought reasonably to have known,
about the circumstances of the individual employee in
question. The Court stated that the following factors might
be relevant:
• Whether there are signs from the employee of impending
harm to health;
• Whether the employee has a particular problem or
vulnerability;
• Whether the employee has already suffered from illness
attributable to stress at work;
• Whether there have recently been frequent or prolonged
absences that are uncharacteristic of the employee and
whether there is reason to think that these are
attributable to stress at work.
FACE VALUE
8. An employer will be entitled to assume that an employee
can cope with the normal pressures of a job unless the
employer knows of something specific about the job or the
individual concerned that should make the employer consider
the issue of psychiatric injury. The employer is not
obliged to make intrusive enquiries and is generally
entitled to take what he is told by his employees at face
value.
DUTY TO TAKE REASONABLE STEPS
9. A duty to take steps only arises where signs that an
employee might suffer psychiatric illness from stress at
work are plain enough that any reasonable employer would
realise that he should act.
10. The employer will only be 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.
11. The size and scope of the employer's operation, its
resources and the demands it faces are relevant in deciding
what is reasonable (rather like the test for unfair
dismissal); these include the interests of other employees
and the need to treat them fairly, for example, in any
redistribution of duties.
12. An employer can only be reasonably expected to take
steps which are likely to do some good: the court is likely
to need expert evidence on this (probably from a Consultant
Psychiatrist or Occupational Health Consultant).
13. An employer who offers a confidential advice service
including counselling or treatment is unlikely to be found
in breach of duty except where he has been placing
unreasonable demands on an individual where the risk of
psychiatric injury was clear.
14. One step an employer is not obliged to take, even where
that step would be the only reasonable and effective one
available, is to demote or dismiss an employee in order to
remove him or her from a stressful situation. In the view
of the Court an employer will not be in breach of duty
simply by allowing a willing employee to continue in his or
her job.
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Ian Mann - Employment Barrister
13 King’s Bench Walk
Ian Mann was called to the Bar in 2000. He practices in
employment disputes representing both employers and
employees. His employment practice embraces the full
spectrum of Employment Tribunal, High Court and appellate
work and covers all areas of employment law, especially
discrimination.
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