The law related to workplace stress continues to develop. The main issues for consideration in cases of alleged illness caused by workplace stress are as follows:
Whether the employee has suffered damage to health as a result of workplace conditions
The extent of medical evidence in relation to the above
Whether the employer knew or ought to have known that workplace conditions were damaging the health of the employee and failed to take steps to deal with this
Whether there are external factors which have contributed to the employee’s illness
The application of the general principles of common law negligence, that is, a duty of care, breach of that duty and resulting damage.
The most recent example of the development of these issues is the Court of Appeal case of Brown v London Borough of Richmond upon Thames (2012).
B claimed compensation from L for work-related stress. At first instance, his claim succeeded. The judge found that B had suffered stress associated with his work which had harmed his mental health and led to a breakdown at the end of June 2003.
B was awarded £25,000 for moderately severe psychiatric harm and £4,891.42 for loss of earnings up to June 30, 2004.
The main point of the appeal was the cut off date for the award for loss of earnings. On B’s behalf, it was submitted that the award should have continued beyond that date. Another issue was the relationship of the stress at work aspect to the fact that during the relevant period B suffered the traumatic breakdown of his marriage.
B started his employment with L in 1965. He was promoted to Operations Manager of the Parks and Open Spaces Department. He retired in May 2004 on the grounds of ill-health. His last working day was June 30, 2003 when he suffered a mental breakdown. The judge found that the effect of L’s negligence was limited to twelve months from his last working day and that the causative effect of any breach of duty ceased at the end of 2004, being superceded from that point by the effects of the breakdown of his marriage.
In January 2000 B told R, his manager, that he had seen his GP, complaining of headaches and heart palpitations. R said that she would refer this to L’s occupational health unit. She did not do so.
In October 2002 B’s GP wrote to R, stating that B’s physical and mental health were suffering as a result of the ongoing and difficult work environment. This letter was not shown to R until December 2002.
In January 2003 a risk assessment was carried out by R and an action plan was drawn up to minimise risks to B’s health. This was not put into effect.
In August 2003 B’s wife told him that she had formed a relationship with another man. She left the matrimonial home in October 2003.
The judge also found that when B’s GP wrote to R , L should have foreseen that B was at risk of psychiatric harm associated with his work. L was also at fault for failing to implement the action plan.
B appealed to the Court of Appeal. That court made the following points:
The breach of duty by L started in early 2003, as found by the judge. The evidence of what information was or should reasonably have been available to the employer at an earlier date was not of such a compelling nature as to lead to the conclusion that the judge had been wrong in this respect.
The overall test was the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know.
The appeal would be allowed in relation to the issue of loss of earnings from June 30, 2004. The judge had not conducted a careful analysis which a complicated issue of this sort required. There was also medical evidence that B was unfit for work in late 2007 and that he would not be fit for work until six months after the end of litigation. That issue would be remitted to the judge for further consideration of the impact of the breakdown of B’s marriage.
The Brown case is the latest in a long line of decisions which is generally recognised as having started in 1990 with the case of Johnstone v Bloomsbury Health Authority, involving the hours worked by hospital doctors, where the Court of Appeal ruled that employers are under an implied duty to take reasonable care not to injure their employees’ health. This applies to physical and mental health.
The landmark decision in this area of law is Sutherland v Hatton and Others (2002) where the Court of Appeal ruled that the general principle was that employers should not have to pay compensation for stress-induced illness unless such illness was reasonably foreseeable. Employers are normally entitled to assume that employees can withstand the normal pressures of a job. The court set out a number of practical propositions for future claims concerning workplace stress, including:
Employers do not have a duty to make searching enquiries about employees’ mental health. They are entitled to take what they are told by employees at face value unless they have good reason to disbelieve employees’ statements.
Indications of impending harm to health at work must be clear enough to to show an employer that action should be taken, in order for a duty on an employer to take action to arise.
Where an employee wishes to remain in a stressful job, and the only alternative is demotion or dismissal, the employer is not in breach of duty in allowing the employee to continue.
No type of work may be regarded as intrinsically dangeorus to mental health.
Employers who offer confidential counselling advice services, with access to treatment, are unlikely to be found in breach of their duty of care in relation to workplace stress.
The amount of compensation will be reduced to take account of pre-existing conditions or the chance that the employee would have become ill in any event.