Stress and harassment update
Patrick McBrien looks at three recent High Court decisions in the area of occupational stress and harassment.
In the last month or so there have been three High Court decisions in claims involving occupational stress and harassment. The judgments provide useful guidance both to practitioners dealing with such cases and also to employers on the factors the courts will take into account when determining whether they have discharged their duty of care to employees in the context of stress claims. The cases include allegations of excessive workload and of bullying, the two most common scenarios in stress claims.
Hatton v Sutherland (2002) CA
When considered together the three cases are interesting because they all take as a starting point for the analysis of the law in this area the case of Hatton v Sutherland, a 2002 decision of the Court of Appeal. That landmark judgment is sometimes referred to as Hatton and sometimes as Barber v Somerset, which was the subsequent appeal to the House of Lords but in any event, what is important are the 16 “practical propositions” set out in the Court of Appeal judgment.
There have been developments in the law and also developments in relation to employers’ knowledge of psychiatric injury and the associated risks in the 12 years since Hatton but the judgment remains the starting point when assessing issues of liability. Therefore, any practitioner in this area or any employer concerned about stress issues should be familiar with those 16 practical propositions.
Of central importance, is foreseeability; what the court calls the “threshold question”. For liability to attach it must be reasonably foreseeable by the employer that this particular employee is at risk of psychiatric injury and that such injury is attributable to stress at work as distinct from other factors. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. The courts recognise that by its very nature, psychiatric injury is harder to foresee than physical injury. An employer is normally entitled to assume that an employee can withstand the normal pressures of his job unless he knows of some particular problem or vulnerability. Employers are not expected to be “mind readers” in this context.
Bailey v Devon Partnership NHS Trust
Bailey v Devon Partnership NHS Trust - High Court - 11 July 2014
The claimant was employed by the defendant NHS Trust. She brought a claim for injury caused by occupational stress arising from her work as a Child and Adolescent Consultant Psychiatrist. Her claim covered two distinct periods. The first was the six months leading up to July 2008 when the claimant had a breakdown and was admitted to hospital with heart problems. The claimant alleged that during this period the significant demands of her job increased because of organisational change, lack of support from management, lack of administrative support and extra responsibilities. She alleged that those pressures caused her to suffer a severe, depressive disorder.
The second period commenced when the claimant returned to work in July 2009. A phased return to work plan was agreed, including reduced hours and relinquishing some duties. However, the claimant failed to cope and she retired on ill health grounds in March 2011 having been on sick leave since February 2010.
The Claimant claimed for the severe depressive disorder and its subsequent recurrence alleging that the defendant was in breach of its duty of care at common law and also under Regulation 3 of the Management of Health & Safety at Work Regulations 1999; namely, the failure to carry out an appropriate risk assessment in respect of the risks to the claimant’s health, including her psychiatric health. It was alleged that these breaches of duty caused the psychiatric injury.
His Honour Judge Cotter QC found that the defendant was in breach of duty by failing to carry out an adequate risk assessment and failing to implement its own policy for the assessment of stress. However, these breaches of duty were not causatively relevant because the judge found that even if the claimant had completed the assessment, her breakdown in July 2008 would not and could not have been foreseen and therefore would not have been avoided. A risk of imminent breakdown (the test set out in Hatton) would not have been identified.
In making these findings of fact, the judge had regard to the claimant’s reticence in giving a full and accurate picture about her health, including the fact that she was on antidepressant medication and had seen a psychotherapist. It was reasonable to conclude that her reticence would have continued even if a proper risk assessment and implementation of the stress policy had been carried out.
In any event, the cause of the claimant’s stress and breakdown was multi-factorial. Several factors were involved in the breakdown of her mental health, specifically experiences at work, her personality, her prior vulnerability and relationship problems. Even in the absence of difficulties at work, these other factors carried a high risk of depression and even if an assessment had led to some immediate reduction in her workload, it would not have prevented the breakdown.
The judge also found that the defendant was in breach of its duty to the claimant in respect of her return to work. Her first breakdown had been significant and she was not fit to return to work when she did in July 2009. Whilst adjustments were made and the return was phased, the defendant was essentially reactive in its approach and the claimant was unable to cope. In circumstances where the defendant was on notice of the claimant’s vulnerabilities (which they were when she returned to work following the first breakdown), this “reactive” approach was not sufficient for the defendant to discharge its duty of care. Their duty went beyond that.
However, again, the judge found that any reassessment of her ability to cope could not have produced a reasonable course of action which would have allowed her to continue at work. The outcome (i.e. the second breakdown) would not have been prevented.
Therefore, whilst the defendant was found to be in breach of its duty of care to the claimant in several different respects, these breaches were not causatively relevant i.e. the claimant would have suffered the psychiatric injury in any event. In the circumstances, the claim failed on causation and judgment was given for the defendant.
Daniel v Secretary of State for the Department of Health
Daniel v Secretary of State for the Department of Health - High Court - 28 July 2014
The claimant was employed as a coordinator for a cancer research network. She alleged that during the course of her employment she suffered occupational stress which developed into a psychiatric condition. The claimant had a history of bipolar disorder which carried a very high rate of recurrence but her pre-existing condition was unknown to her line manager and her employer. The claimant alleged that she was bullied by a Professor of Medical Oncology and that the defendant failed to properly deal with the bullying and victimisation she was subjected to. She alleged that the support she was given following the allegation of bullying being raised was inadequate. She also alleged that from October 2005 she had effectively two jobs to do and was consequently seriously overworked. Her case was that her psychiatric condition was caused by the bullying she was subjected to and/or overwork.
The allegations of bullying principally centred on emails which were sent to the claimant by the Professor. The claimant alleged that the emails were “spiteful” in nature and deliberately designed to humiliate her publicly and denigrate her in the eyes of her peers and her line managers, the emails having been copied to a number of people. The emails, for example, accused the claimant of an inability to communicate properly and a failure by her team “to carry out the most basic functions”.
Sir Robert Nelson found for the defendant and dismissed the claim. None of the conduct complained of when taken properly in context amounted to conduct which was either genuinely offensive or oppressive and unacceptable or otherwise amounted to bullying. The judge considered various definitions of bullying or harassment, including from case law such as in the case of Majrowski v Guys and St Thomas’s NHS Trust (2007) where the House of Lords held that courts had to distinguish between conduct which is “unattractive, even unreasonable and conduct which is oppressive and unacceptable”; the latter constituting bullying or harassment but not the former. The judge also considered the ACAS definition of bullying “Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure”.
Considering these various definitions, the conduct complained of in this case did not constitute bullying. It is interesting that whilst the individual or his behaviour was variously described as “tough”, “direct” and “undoubtedly forceful and blunt”, his conduct did not cross the line into behaviour which could be characterised as bullying.
In relation to the workload issue, the judge found that the claimant’s workload was increased which led to increased pressure. However, the claimant took on the extra work willingly and “was well paid for it”. The claimant made no complaint at any time about being overworked and her only complaint was about the alleged bullying. The claimant was not “overworked” in the sense that she was required to carry out an excessive workload. The judge found that on the evidence there was no sign or indication available to the defendant of impending risk to mental health, again, having regard to the test set out in Hatton. The claimant’s reticence to her employer about her growing health problems was consistent with a desire not to appear weak as well as a desire to remain professional in her conduct but had the effect of not placing the defendant on notice of risk to psychiatric health. Psychiatric injury was not therefore foreseeable and there was no breach of duty.
Olulana v Southwark London Borough Council
Olulana v Southwark London Borough Council - High Court - 19 July 2014
This was quite an unusual and therefore fact sensitive case. It is therefore probably of limited wider application with one possible exception.
The claimant was employed as a Finance Officer at the defendant Local Authority. In about 2003 when she was suspended from work she began to suffer from delusions that included that she had a reputation as a whistle blower and was suffering from victimisation. There was nothing in the claimant’s employment records to indicate that she was suffering from psychiatric injury. Her job had imposed stresses on her and between 2007 and 2009 there were a number of meetings with management to discuss the situation. A temporary member of staff was employed to alleviate the pressure on the claimant. A few months later the claimant was referred to occupational health for hypertension but said she was otherwise in good health. Her employer took this at face value, as her employer was entitled to do. From the beginning of the next year the claimant complained that stress at work was the worst of the previous 2 years. She was diagnosed with psychiatric illness and by late 2011 was saying that management were hacking into her computer and following her in her car. Her delusions continued and increased and she was diagnosed with schizophrenia. The claimant alleged that as a result of the defendant’s actions some time after 2003 and lasting until 2011, she suffered psychiatric injury, namely the acceleration of schizophrenia.
By the time of the trial the claimant was so ill that she was unable to attend or give evidence. Counsel and solicitors were therefore acting without the benefit of instructions. Judge Simon Brown QC held that the test to be applied was that of a reasonable and prudent employer taking positive thought for his workers in the light of what he knew or ought to have known. In the circumstances of this case there was no breach of duty. Indeed, the defendant’s treatment of the claimant was described as “exemplary” once it was made aware of her illness. They were “far from negligent”. The issue was that there was nothing in the claimant’s records to show that she had suffered from psychiatric injury and the defendant was entitled to take what she said at face value.
For more information please contact Patrick McBrien, Director on 0161 603 5236.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.