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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.

Background

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.

Cases

Bailey v Devon Partnership NHS Trust

Bailey v Devon Partnership NHS Trust - High Court - 11 July 2014

Facts

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.

Findings

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

Facts

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”.

Findings

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.

Facts

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.

Findings

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.

Comment

Bailey is interesting because the judge suggests that since the Hatton judgment there is a much better understanding of occupational stress. In certain circumstances this might mean that further or more extensive investigations need to be carried out by employers to address the issue of risk of psychiatric injury. Arguably what is effectively being said is that there is a lower threshold at which employers are expected to carry out a risk assessment in relation to risks to psychiatric health. The judge in Bailey found that the employer ought to have carried out such a risk assessment and implemented its stress policy and that the failure to do so constituted a breach of duty.

Causation obviously also needs to be established, however. Whether or not the employer’s breach of duty was causatively relevant is of critical importance. In this context the personality of the particular employee is significant. Is the employee someone who would “suffer in silence”, not complain or perhaps even positively attempt to cover up issues to do with stress, perhaps because of a desire not to appear “weak”? If the claimant was such a person then the claim is unlikely to succeed because even if investigations were carried out they would not identify the problem. In other words, the employer’s breach did not make any difference. A “desire not to appear weak” was held to be an important factor in the Daniel case.

In Daniel, the judge recognised that the claimant worked in a high pressure role (cancer research trials). It was of relevance that the claimant “took on extra work willingly and was well paid for it”.

The assessment of bullying in Daniel is interesting. Again, the law recognises that some degree of unpleasant or unreasonable conduct might take place in the workplace without the employer necessarily being found to be in breach of duty or in breach of the Protection from Harassment Act 1997. The conduct complained of must cross the line from conduct which is simply unpleasant or unreasonable. It must be something more than that to constitute bullying. The conduct in the Daniel case was not bullying, despite it being characterised as “blunt” and “forceful” etc.

It is also of note that the judge found it was the claimant’s perception of the conduct rather than the conduct itself which was causing her stress. The judge made clear that whether or not the conduct amounted to bullying involved an objective assessment of the behaviour i.e. not simply the behaviour as perceived by the alleged victim.

The case of Olulana is an unusual one but the wider lesson to be derived from the judgment is again the requirement for the employer to be on notice that there was some risk to psychiatric health and secondly it provides an example of an employer behaving in an “exemplary” manner once it did know of the employee’s psychiatric illness. Unfortunately, there is not a great deal of detail in the judgment as to what constituted this “exemplary” conduct, but it included employing a further member of staff to alleviate the claimant’s work and secondly, numerous management meetings and the referral of the claimant to occupational health once the employer was on notice that the claimant was suffering problems. It is clear that once an employer is on notice, in particular because there has been some breakdown which is known to the employer or because the claimant has been absent due to stress then there is a much higher duty on the defendant employer at that point. At that stage being reactive is no longer sufficient. The employer should take steps to investigate the problem and implement any reasonable measures which might minimise or reduce the further stress or psychiatric breakdown. This is consistent with the finding of breach of duty after the claimant returned to work following a period of stress related absence in Bailey.

Stress claims, by their nature, are particularly fact sensitive and require very detailed investigation and analysis. Probably the most important point of wider implication to draw out from these previous judgments and previous case law is the issue of foreseeability.

What did the employer know regarding the potential for risk of the claimant suffering some psychiatric problems and if aware of such a risk, were the steps taken by the employer sufficient and reasonable in order minimise or the risk?

The point and the law in this area generally is probably best summed up in the judgment of Lord Justice Brown in the case of Garrett v Camden LBC (2001) CA:

Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situations, be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and ought properly to have averted, there can be no liability.”

Contact

For more information please contact Patrick McBrien, Director on 0161 603 5236.

By Patrick McBrien

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.

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