Stressed-out about stress? Well get a grip – employers will be liable in
only very specific circumstances, says John McMullen
There is no doubt that workplace stress exists. In a seminal study based on
a sample of 17,000 people, 20 per cent of respondents reported they were
"very" or "extremely" stressed at work. Twenty-three per
cent of the samples also reported that they had experienced illness caused or
made worse by work over the previous 12 months. Factors identified included
long hours, exposure to noise, high workload and lack of support.
But not all stress leads to legal liability. In common law an employer is
obliged to take such steps as are reasonably necessary to ensure the safety of
staff. These include providing a safe place of work, a safe system of work,
protection from unnecessary risk or injury and competent employees.
To claim damages for negligence, an employee must prove on the balance of
probabilities that:
– The employer owed a duty of care – that is, should have protected the
employee from risks that were reasonably foreseeable.
– It breached that duty.
– Injury resulted from – that is, was caused by – the breach.
Record settlements
In the highly publicised case of Walker v Northumberland County Council,
1995, IRLR 35, HCQB, the court decided that Walker was entitled to damages from
his employer for breach of that duty of care.
The case was initially appealed but subsequently settled when Walker
accepted a (then) record £175,000 in an out-of-court settlement.
In Beverley Lancaster v Birmingham City Council, unreported, 5 July 1999,
Birmingham County Court, Birmingham City Council admitted liability for a
work-related psychiatric illness.
The court was allowed to assess damages for Lancaster’s injury and the total
damages payable by the council were, as a result, £67,041.91.
More recently, Randy Ingram received £203,000 in an out-of-court settlement
from Worcestershire County Council after he retired from his job as a relief
warden on 16 traveller sites.
He left his job on the grounds of ill-health caused by stress leading to a
nervous breakdown. He was shot at on one occasion and frequently threatened and
verbally abused by members of the traveller community.
These cases in context
It must be emphasised that Walker is the only case of significance where
liability was actually decided by the court as opposed to an admission being
made, and it is a special one. As subsequent cases have shown, unless the
employer admits liability, it will be for the plaintiff to show very special
circumstances such as existed in that case.
In Maryniak v Thomas Cook Group, unreported, it was held that even a
deliberate attempt by a regional manager to destroy a junior manager’s career –
had such an attempt happened, which it did not – would not have been enough to
make any resulting psychiatric illness "foreseeable" to the extent
set down in Walker.
The court said there were always going to be extremely difficult problems in
proving that psychiatric damage was foreseeable from, and caused by, the volume
or organisation of work. The injury that was likely to follow from such a
breach must be such that a reasonable man would contemplate it happening. The
existence of some risk was an ordinary incident of life, even when all due care
had been taken.
In Panting v Whitbread, unreported, 24 November 1998, Gloucester County
Court, the plaintiff claimed damages for psychiatric injury due to his
employment as a pub manager with Whitbreads. He contended that his wife and
staff were subjected to violence, threats, theft, burglary, attempted burglary
and other offensive conduct and that this caused him to suffer reactive anxiety
or depression akin to post-traumatic stress disorder, as a result of which he
was no longer able to work. He said the brewery knew the pub was difficult and
did not give him special training or warning. Eventually his employment was
terminated due to sickness.
The County Court dismissed his claim on the basis that he was not
significantly more vulnerable than the average person; that he was sufficiently
qualified to run the pub without formal training due to his experience running
other licensed premises and his Army background; that it was reasonable for the
brewery to ask him to run the pub despite its difficulties; that he was aware
of the brewery’s employee assistance programme and the grievance and other
internal management programmes; that he did not fully inform the brewery of the
extent of the incidence of assault; that he never made a formal request for
transfer; and that there was insufficient notice to the brewery that he had a
personal health problem.
The brewery had comprehensive arrangements for protecting managers and
therefore it had not failed to take reasonable steps to prevent the onset of
his illness. Panting had not put his concerns in writing at any time during his
employment and therefore the brewery had done everything it reasonably could.
The final case in this series is perhaps the most robust. In Rorrison v West
Lothian College, 1999, Rep LR 102; 1999 GWD 27-1296, Rorrison, a welfare nurse,
sought damages from the college on the ground that she had suffered
psychological damage comprising severe anxiety and depression, panic attacks
and loss of confidence and self-esteem resulting from the conduct of her line
manager. She argued that her line manager, and therefore her employer, should
have known there was a serious risk of her mental and psychological health
being damaged.
Dismissing her action, the Court of Session held that there was no
indication, on the facts, that she had suffered from a recognised psychiatric
illness or had to be treated by a psychiatrist.
The court said, "To suffer such emotion and others such as stress,
anxiety, loss of confidence and low mood from time to time – not least because
of problems at work – is a normal part of human experience. It is only if they
are liable to be suffered to such a pathological degree as to constitute a
psychiatric disorder that a duty of care to protect against them can arise.
That is not a reasonably foreseeable occurrence unless there is some specific
reason to foresee it in a particular case. Such is not the case here."
Assessing risk: breach of contract
There are a number of contractual terms and legal obligations that may be
relevant in cases of employees suffering from stress. It will be a breach of
contract, for example, if an employer exercises a discretionary power expressly
provided for in the contract – for example, in relation to overtime – in breach
of its implied duty to take reasonable care for the health and safety of its employees.
The fundamental implied duty of trust and confidence in the employment
contract means employees should not be subjected to abuse or harassment at work
by their employers and other employees in respect of whom the employer may be
vicariously liable.
Employers must also ensure they do not prevent or frustrate employees’
attempts to fulfil their contractual obligations. This duty may be breached if
an employer appoints an employee to a post and fails to provide enough support
and resources for the job.
A breach of contract by an employer will give the employee the right to seek
remedies in the civil courts, including a declaration of contractual rights,
injunctions and damages. Also, an employee may resign and make a complaint of
unfair constructive dismissal if the employer is in serious breach of any of
the contractual terms.
Assessing risk: disability discrimination
Where an individual feels they have been subjected to unfavourable treatment
– whether by way of dismissal, failure to promote or any other such detriment –
as a result of the fact that he or she has suffered from stress, stress-related
illness or depression – then that person may consider bringing a claim under
the Disability Discrimination Act 1995. The Act provides that "a person has
a disability for the purposes of this Act if he has a physical or mental
impairment which has a substantial and long-term adverse effect on his ability
to carry out normal day-to-day activities."
The definition of disability therefore breaks down into four main parts –
the person must have a physical or mental impairment, the impairment must have
adverse effects which are substantial, the substantial effect must be long-term
and the long-term substantial effect must have an adverse effect on normal
day-to-day activities. If the impairment is mental, it must be a clinically
registered condition.
In Kapadia v London Borough of Lambeth, 2000, IRLR 14, an employment
tribunal dismissed a complaint of un- lawful disability discrimination on the
basis that the applicant, who had been suffering from anxiety, stress and
depression, was not disabled under the terms of the Act.
But The Employment Appeal Tribunal ruled that there was uncontested medical
evidence as to the effects on the employee of this stress-related illness. He
had been certified as having reactive depression as a result of the stress.
This is a recognised medical condition for the purposes of the Act and
therefore the applicant was disabled for the purposes of the Act. The point is
that not every allegation of stress will mean an employee is disabled under the
terms of the Act. But as stress leads to many recognised physical and mental
conditions of a medical nature, the risk is clearly high.
Compensation for discrimination is unlimited. It has now also been
established, in Sheriff v Klyne Tugs (Lowestoft), 1999, IRLR 481 (Court of
Appeal), that a tribunal is entitled to award not only compensation for injured
feelings but also damages for personal injury caused by the abusive and
detrimental treatment received as a result of the discrimination.
Sheriff had entered into a settlement agreement concerning a tribunal claim,
in full and final settlement of all claims which did not include damages for
personal injury. He later brought a claim in the County Court for damages for
personal injury. The claim was struck out as it was held that the claim could
have been successfully pursued in the employment tribunal, so he was not
allowed to bring the claim twice.
The court held specifically that an employment tribunal has jurisdiction to
award damages for personal injury, including both physical and psychiatric
injury, caused by the statutory tort of unlawful discrimination.
Dr John McMullen is national head of employment law at Pinsent Curtis and
author of Business Transfers & Employee Rights (Butterworths)
Walker: The facts
John Walker worked for Northumberland County Council as an area social
services officer responsible for four teams of field workers in the Blyth
Valley area. It was a large division with a heavy workload.
From 1985 onwards, Walker expressed concern about pressures and called for a
reorganisation. These were rejected. At a meeting with his immediate superior
Mr Davison in November 1985, Walker suggested that the area could be split.
Nothing happened, and the pressure of work continued to increase. In November
1986, Walker suffered a nervous breakdown and remained off work until March
1987.
Before coming back to work, Walker again raised the question of splitting
the area. Davison did not agree to this but did agree that he would be assisted
by an officer who had been sent to cover for him during his illness. Walker was
given to understand that this could last as long as necessary.
After Walker returned to work, he was not visited by Davison and within a
month the help was withdrawn. The backlog of paperwork had built up during his
absence. He again began to suffer stress symptoms. On 16 September 1987, he was
diagnosed as suffering from stress-related anxiety and went on sick leave. He
suffered a second mental breakdown and in February 1988 was dismissed on
grounds of permanent ill-health.
The High Court in Newcastle held that as far as the first breakdown was
concerned, it was clear Walker was becoming exasperated by a lack of what he
considered sufficient resources to satisfy the needs of the job. So there was
some risk foreseeable that he might sustain a mental breakdown.
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But since there was no evidence at the time that those in his position were
particularly vulnerable to stress-induced mental illness, it was not
"reasonable" to foresee that Walker was subject to any greater risk
of mental breakdown than any other employee. Northumberland County Council was
therefore not held liable for the first breakdown.
When Walker returned to work, however, it was reasonably foreseeable that
the illness would return if he were exposed to the same workload without help.
On the facts, the standard of care to be expected required that such help
should be provided notwithstanding that it may disrupt the council’s services.
In continuing to employ Walker in the job and providing no effective help, the
council acted in breach of its duty of care.
