The recent case of Easton v B&Q seems to offer reassurance for employers about failure to foresee occupational stress. But James Hockin sounds a note of caution.
Occupational stress in the workplace is on the increase. The latest estimates from the Labour Force Survey show that in 2014/15 stress accounted for 35% of all work-related ill health cases and 43% of all working days lost due to ill health.
It is an issue for employers, not only because of the prolonged absences that can result from stress-related illnesses – 9.9 million working days in 2014/15 – but also because of the potential liability of an employer if workplace stress results in a psychiatric injury and it was foreseeable that an injury might result from pressures at work.
More on managing stress
The recent High Court case of Easton v B&Q plc would appear to be something of a relief for employers. It maintains the high hurdle set down in the 2002 case of Hatton v Sutherland that employees must overcome if they are to prove that their employer should have foreseen their injury and is therefore liable for psychiatric illness caused by occupational stress.
However, there is often a fine line between genuinely not knowing that something is likely to happen and turning a blind eye to clear signals that it might.
The decision in the Easton v B&Q case
The facts in Easton are a good illustration of this. Mr Easton was a store manager for B&Q. He was responsible for a large store while it was undergoing a refurbishment. The work went well, but he became ill with depression and was away from work for five months.
B&Q accepted that Mr Easton was suffering from a psychiatric illness that was caused largely by stressful changes at work, such as the removal of night staff and the introduction of a new system called “Trade Point”. Mr Easton claimed that these changes had placed him under excessive stress and that he had raised this with his managers.
The court disagreed, finding that the comments Mr Easton had made to managers might have conveyed some misgivings, but were not sufficient to have put B&Q on notice that he was at risk of suffering from excessive stress that would make him ill. On the evidence, while the situation was plainly stressful for Mr Easton, it could not have been foreseen that it would result in psychiatric injury.
One of the potentially problematic areas of the case for B&Q was the fact that, following Mr Easton’s five-month absence, and contrary to the return-to-work plan, it had approached him to cover for a manager at another store for a period of six to eight weeks.
While Mr Easton claimed he was pressured and bullied into accepting, the court found that the approach to Mr Easton was reasonable and that B&Q was not therefore in breach of its duty to Mr Easton when he suffered a relapse.
Employer’s notes were crucial evidence
The crucial evidence here were near-contemporaneous notes made by the employer that did not marry with Mr Easton’s recollection of events. Indeed, the judge went as far as to say that had he accepted Mr Easton’s account of his meeting with his employer “there might have been a basis for concluding that further psychiatric illness was a foreseeable consequence of dealing with him in that way”. Hence, Mr Easton’s witness evidence was key here – not to advancing his case, but actually to undermining it.
B&Q had also failed to undertake a risk assessment. However, the court determined that, had a general risk assessment been conducted, no general risk of psychiatric injury would have been uncovered, given the nature of the work at B&Q. The staff handbook, of which Mr Easton was aware, required him to talk to his manager if he felt stressed at work. The court found that Mr Easton had not done so.
What you should do
While the Easton case is, on the face of it, helpful to employers, you should remain vigilant about stress among the workforce. It is arguable that B&Q was fortunate in the view the court took of the facts of the case. B&Q’s approach to Mr Easton to take a temporary management role while he was still undertaking a phased return to work might have led a different judge to conclude that there had been a breach of the duty of care, which could foreseeably have led to further illness.
Cases involving workplace stress are inherently fact specific and contemporaneous notes can play a vital part in the outcome – managers should be reminded of how important these can be if a dispute develops later.
Employers should be even more cautious where issues of potential mental disability arise. In claims for disability discrimination, employers cannot avoid liability by claiming that health problems were not foreseeable. Employers are also subject to the duty to make reasonable adjustments and need to have that duty front of mind when handling the return to work of an employee who has developed a long-term psychiatric condition that might amount to a disability.