The approach of the common law

Identify the Key legal issues arising from work- related stress complaints by employees and evaluate the approach of the common law of such complaint.

Until recently, there was no relief available for the employee who suffered psychiatric injury arising from work-related stress. If no physical damage was found, the courts would not allow the claim to proceed. However, as medical and scientific knowledge has advanced significantly in the last few years, the principle of the employer's liability in occupational distress has developed in the law of torts. However, there is still a lot of room for improvement and development possible in this area of law. Therefore, for now the courts have to rely on the rulings of some recent cases which have helped them set out some judicial guidelines.

To start with, a landmark case in this area of law was undoubtedly Walker v Northumberland County Council in which Colman J said that 'there was no reason why psychiatric damage should not fall into the category of employer's liability'. Another important key issue ruled out in the above case was that in case the employee had suffered a nervous breakdown, it is reasonably foreseeable that he might suffer another one should the employer not give him any support. After this case it was established that foreseeability was one of the main preconditions in bringing the claim on the grounds of occupational stress. However, after these rulings courts, of course, faced the fear of the litigious floodgates being opened, particularly from public sector employers (due to the nature of the Walker case). Another very important ruling developing this area of law came in 2001 in Cross v Highlands and Islands Enterprise , in which J McMahon said that ‘psychiatric injury should be treated in the same way as the physical injury'.

However, a very important case helping the courts to establish more efficient and wider criteria for claims of occupational stress came in 2002 and is known as Hatton v Sutherland in which a school teacher suffered from a nervous breakdown due to the teacher's excessive workload. In this case The Court of Appeal ruled out a few important guidelines such as that there are no inherently stressful jobs and the employer will only be liable if he had foreseen or should have foreseen a possibility of psychiatric injury to that particular employee and, since the risk was foreseeable, there must be an account taken as to what precautions the employer has taken to avoid mental harm to his employee in determining whether the employer can be held liable. The CA in this case also set out the requirements that the claimant must satisfy when showing that the harm was reasonably foreseeable by his employer. In Barber v Somerset County Council , which was one of four cases brought to the CA, it was set out that it is not enough for the plaintiff to simply prove that duty of care existed and that there was a breach of a statutory and causal link between them, but also that the harm was caused and the reason for that harm was work-related stress.

Thus far, an employer was only liable if, as seen from Walker v Northumberland County Council, Hatton v Sutherland, and later held in one of the Hatton's hearings, i.e., Barber v Somerset County Council, the employer was personally informed by the employee (or should have been aware due to previous breakdowns) of the employee's vulnerability but said employer failed to provide him with help or assistance.

The rulings of the above cases have caused contradiction in terms and discussions of what actually constitutes reasonable care or specific precautions that an employer is expected to take. Hale LJ pointed out that it depends on a number of factors such as magnitude of risk, the cost of preventing it, etc.. However, the difficulty here is to determine objectively what an employer is expected to do from the point of view of a reasonable and prudent employer. A solicitor T. Ward claims that regular health checks should lessen the number of claims. However, there are a few disputed points, e.g., What if the health check is confidential as in Hartman v South Essex Mental Health and Community Care NHS Trust, where it was established that confidential questionnaires do not impose a duty on the employer. The employer could also evade liability if the employment contract prevents the employer from accessing the information about the employee. Again, it makes it difficult to say what is reasonable to expect from an employer. So far, the employer could only be liable if he has an available health record of previous mental disturbances as in Walker or a record of a complaint to the employer about the employee's mental health as in Hatton. A further development came in Hone v Six Continents Retail Ltd where it was argued whether mere complaints about excessive workload and long hours could warn the employer about possible mental disturbances of that particular employee. Before that case, employers were entitled to presume that an employee is capable of withstanding normal pressures and that the employer can only be held liable for plain signs of possible mental illness. Some writers, though, have argued that an employee must show signs of irritability, loss of a sense of humor, headaches, nausea, etc. (i.e., plain enough for any employer to perceive) for the employer to actually become concerned about his employee's well-being and that mere complaints are not sufficient to establish reasonable foresight.

As argued by J. Cooke, a lot of stress-related claims fail. The reason could be that there is still a lack of clear and consistent guidelines for the plaintiffs. Another explanation for the high incidence of the failure of such claims might be failures to prove causation between the damage and the breach (the burden of proof lying with the plaintiff). The latter point was emphasized in the early stages of the development of this branch of employer's liability in the speech by LJ Hale. A lot of recent cases failed because they simply did not manage to show a link between the actual duty of care and the damage incurred. This was seen recently in the case of French v Chief Constable of Sussex . The reason, as some writers have argued, is the fact that stress is intangible and yet it creates an even more intangible effect.

On the other hand, another issue that courts had to consider is whether these signs could simply be a reflection of some personal problems and mislead the employer as in Pakenham- Walsh v Cornell Residential . In this situation, the court held that since the claimant suffered a nervous breakdown due to personal reasons, work-related stress was immaterial. So the courts have to be very careful in deciding whether the psychiatric damage was really caused by work or whether it only had a minor effect. However, it could be argued that stress at work might have had a significant influence on a serious nervous breakdown for the claimant and, in that case, courts are ready to award proportionate damages as in Dickens v O2 . The court would usually allow the defense of contributory negligence on behalf of the defendant. In the latter case, however, the court held the defendant fully liable.

Further development came in Daw v Intel Corporation LTD. The question raised in that case was about the situation in which the employer is aware of the vulnerability of his employee and offers him help, however, the employee rejects said help. Logic would seem to dictate that the employer did try to help his employee after he became aware of his vulnerability, so no duty of care is owed. However, the court held a differing view, that the defendant was, indeed, liable. Of course, it could be said that the court simply relied upon what LJ Hale said in Hatton, where he emphasized the important difference between what the employer should do versus what he could do and, in this case, the defendant should have done more.

To sum up, it could be said that the area of employer's liability for emotional stress has developed significantly over the years, though there is likely to be further development in the future. As A.M. Drukteinis argues, a lot of claims for emotional stress try to blame work and employers for all the emotional problems one often goes through though it is not always the case. According to him, it is often unfair to blame an employer in situations where, due to employees' inefficiency at work, he suffers from stress. According to him, the legal system still lacks the objectivity and clear and precise guidelines to follow in these kinds of claims.

As seen from recent case law, this area of law has been developing for more than 10 years now and still has a lot of room for improvement and interpretation. There are also some meaningful, pertinent legislative developments as well, ranging from the Mental Health Act 1983 and the Disability Discrimination Act 1995, which play an important role in claims of work-related stress, to EU legislation and the Human Rights Act as applied to the U K's legal system. However, unlike other torts, what occupational stress caused at work seems to lack is the specific criteria that the courts should follow to simply identify whether there was a breach of a duty or not.