Occupational Stress

No common trend in claims arising from occupational stress developed until the case of Hatton in 2002. It was decided that it was necessary to return to the basic principles of duty of care, foreseeability, breach of duty and causation in each individual case. The Hatton ‘guidance' was formulated for assistance in establishing where it was appropriate for the Courts to award damages to employees for claims for occupational stress.

The Hatton ‘guidance' can basically be reduced to the following points:

The employer must be able to reasonably foresee the injury before a duty of care arises. An employer can normally assume that the employee is able to cope with the normal pressures associated with work. However, the employer needs to take account of the nature and extent of the employee's job and any obvious signs of damage to the employee's health.
It is down to the employee to show that the employer's breach of duty led to harm. Without the principle of foreseeability being satisfied, a duty of care by the employer will not be established.
The employee has to show that he suffered an injury to his health that was caused by occupational stress in order to be successful.

The recent case of Barber involved a schoolteacher who was forced into early retirement following a mental breakdown in 1996. Although his claim was initially successful, on appeal the decision was reversed on the strict application of the Hatton ‘guidance'. It was decided that Barber had not made his problems explicitly clear to his employers following meetings with the senior management team to discuss his workload (despite Barber being absent due to stress prior and no proper enquiry being made as to the cause of that absence).

The House of Lords restored the initial decision. It was ruled that there was insufficient reason for the decision to be set aside as Barber's employer had clearly been in breach of their duty. It was ruled that the period of absence combined with the fact that Barber had raised the issue of concerns over workload with the senior management team, should have meant that his employers suspected that something was seriously wrong. His employers did not take the required steps to help him despite being made aware of the difficulties he was experiencing.

The test was whether or not the employer had fallen below the standard properly expected of a reasonable and prudent employer taking positive steps for the safety of his workers in the light of what he knew or ought to have known. The application of the ‘prudent employer' test (established in Stokes) saw a change in approach from the Hatton ‘guidance'. The employer now had a proactive role in protecting their client's from occupational stress.

The House of Lords further ruled that the Hatton ‘guidance' had been correctly applied in coming to the decision and stated that it was preferable to apply rather than the ‘prudent employer' test in Stokes which addressed the question of whether or not the employer had provided a safe system of work and not the problem of occupational stress. The Hatton ‘guidance' was not changed by the decision in Barber but the emphasis was moved back to the employer in terms of the responsibility for alleviating the stress of employees, but only where they have had some notice of stress or illness from the employee.

The more recent decision in Hartman was initially regarded as changing the Hatton ‘guidance'. Opinion has since altered. Hartman goes to great lengths to incorporate the decision of Barber into the Hatton ‘guidance'. The House of Lords ruled that the decision of Hatton still contained useful indicators and the decision in Barber did not undermine the Hatton ‘guidance'. What Barber emphasised was that no two cases are the same. Depending on the facts of the case, it was not always mandatory to apply Hatton. The Hatton ‘guidance' is specific to occupational stress claims and therefore it cannot be expected to be applicable to situations such as bullying or types of employment that are inherently traumatic.

Hartman involved an employee who had informed her employers occupational health department that she was experiencing stress related problems. These discussions were confidential and therefore not directly disclosed to her employer. On appeal, it was ruled that the employer did not have knowledge of the stress related problems and this meant that it was not reasonably foreseeable that her health was being compromised by her role and as a result they had not breached their duty of care.

The decision is somewhat controversial however as it appears to be at odds with the Disability Rights Commission's Code of Practice, which infers an employer would have the knowledge of an employee's disability if communicated to the occupational health department.

The case law shows general points that are applicable to all claims for occupational stress which will be considered by the Courts in coming to their decisions:

An unsympathetic management style to complaints of employees regarding occupational stress before a decision on breach of duty of care is reached.
There is a duty for the employer to do something about stress being experienced once the employee has communicated their potential risk to occupational stress to the employer. This would indicate that monitoring employees known to be suffering from stress is mandatory.
There is no obligation on the employee to continually remind the employer that they are having difficulties coming with their role. It is up to the employer to deal with such complaints sympathetically and to take action.
Employees who are absent from work due to stress (as certified by a GP) should be taken seriously by employers and not disregarded. Employers are under an obligation to research the cause of the stress and resolve the problem.
Employers should established culture that is not only sympathetic but also supportive to those employees suffering from stress.
Employers have an obligation to be up to date with developments on occupational stress (as do employees to a certain extent).

Brian Jones
Trainee Solicitor
Lemon & Co Solicitors

This article gives a general view and cannot be relied upon in any particular case. The need for specific legal advice must always be considered. For further information, contact either Tim Dixon on tim.dixon@lemon-co.co.uk, or Brian Jones on brian.jones@lemon-co.co.uk, or alternatively, please visit our website at www.lemon-co.co.uk for articles on other legal issues contact us on 01793 527141

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				<p><strong><a href="http://www.lemon-co.co.uk/article_occupational-stress.php">Occupational Stress</a></strong><br />
				No common trend in claims arising from occupational stress developed until the case of Hatton in 2002. It was decided that it was necessary to return to the basic principles of duty of care, foreseeability, breach of duty and causation in each individual case. The Hatton ‘guidance' was formulated for assistance in establishing where it was appropriate for the Courts to award damages to employees for claims for occupational stress....</p>

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