Protection afforded by the common law to employees against stress
At common law, an employer owes an employee certain duties that arise from an employment relationship. One of them is health and safety at work. If an employee is injured in the course of employment, the employer can be liable in two ways: vicariously, through the acts of another employee, or personally, when the employer breaches a non-delegable duty of care (Charlesworth 2013: 11-01). Apart from common law duties, the employer also has statutory duties, for instance under the Health and Safety at Work, etc Act 1974, and various EU Directives and Regulations such as the Framework Health and Safety Directive (89/391/EEC) (Pitt, 2011: 461, 468). This essay deals only with common law duties in connection with psychiatric injury due to stress in the workplace.
The nature of the duty owed to an employee at common law was defined in Wilsons & Clyde Coal Co Ltd v English  AC 57 as being threefold: the provision of competent fellow employees, adequate material and a safe system of work (Charlesworth, 2013: 11-02). The standard of care is only to take reasonable care for the safety of the employee; it is not to make them safe at any cost; therefore, the financial considerations of the employer are taken into account when determining the standard of care owed to the employee (Pitt, 2011: 449).
For instance, in Latimer v AEC Ltd  AC 643, the court ruled that the employer had taken reasonable measures to stop injury by covering a greasy floor with sawdust; as one employee was injured, the court weighed the steps taken by the employer against the cost of closing the factory completely until the floor had been properly cleaned, and concluded that closing the factory would have been a very expensive course of action (Pitt, 2011: 449). The duty of care owed by the employer is a personal one, owed to each employee as an individual: in Paris v Stepney BC  AC 367, although goggles were not usually provided for the work being carried out, the court ruled that they should have been provided for an employee who only had one eye and was rendered blind when a splinter of metal lodged in his good eye (Pitt, 2011: 450).
There has been some controversy as to whether the duty of care owed to the employee by the employer comes under contract or tort. Pitt (2011: 443) argues that there is support for the fact that a claim related to a breach of duty of care can be treated as either an implied term of an employment contract or as a general duty of care under Donaghue v Stevenson  AC 562, and she further argues that in either case the duty amounts to the same duty. Njoya (2005) states that the contract of employment is important when ascertaining the content of the duty of care because it constitutes the basis of the relationship between the parties, especially in cases of occupational stress as they are highly subjective. Most of the claims related to psychiatric injury through stress are tortious claims in negligence but they are, Njoya says, deeply linked to the implied contractual term of safe systems at work.
The protection of an employee’s mental health is interpreted as a duty to protect the employee from suffering stress at work that can lead to psychiatric illness. However, stress must be the primary cause; mere anxiety derived from other work injuries is not sufficient to raise a claim for psychiatric injury (Charlesworth, 2013: 11-03). The standards for employer’s liability regarding psychiatric injury were set by the Court of Appeal in Hatton v Sutherland  EWCA Civ 76; the case went on appeal to the House of Lords under the name Barber v Somerset CC  UKHL 13, because the Hatton case was comprised of four appeals being heard at the same time; one of those appeals was Barber (Njoya, 2005).
Although in Barber, the House of Lords reversed the decision of the Court of Appeal, it approved the sixteen principles set by Hale LJ in Hatton to determine whether an employee has suffered psychiatric injury at work (Njoya 2005); one of those principles is foreseeability of harm, which in psychiatric injury cases depends on what the employer knows or ought reasonably to know about the employee because unlike physical injury, a mental disorder is harder to detect (Hale LJ, 2002: 43).
The principles in Hatton determine the employer’s threshold of duty, which is low: the employer does not have to make enquiries, can take the employee at face value and assume that the employee can withstand normal work pressure; to trigger a duty to take steps, the signs of stress at work must be clear and the employer is only in breach of duty if he has not taken steps that are reasonable under the circumstances; when taking reasonable steps the employer also has to take into account the needs of other employees; the injured employee can be dismissed or demoted if that is a reasonable step under the circumstances; furthermore, if an employer offers confidential counseling services, then he is taking reasonable steps and cannot be found in breach of duty (Hale LJ, 2002: 43).
To trigger a duty to take steps, the signs of stress at work must be clear and the employer is only in breach of duty if he has not taken steps that are reasonable under the circumstances; when taking reasonable steps the employer also has to take into account the needs of other employees; the injured employee can be dismissed or demoted if that is a reasonable step under the circumstances; furthermore, if an employer offers confidential counseling services, then he is taking reasonable steps and cannot be found in breach of duty (Hale LJ, 2002: 43).
The employee on the other hand, must prove that there was an injury to health rather than just work stress and that the stress at work caused the injury (Bryden, 2010). Additionally, he will have to prove that there was a breach of duty, which caused or materially contributed to the harm suffered. If the employee can establish a breach of duty but the harm has more than one cause, the employer only has to pay for the proportion of the harm related to the breach of duty, and the assessment of damages will take into account any pre-existing disorder (Hale LJ, 2002: 43).
Based on the above, how easy is it for an employee to establish a claim for psychiatric injury through stress in the workplace? It seems that the principles stated in Hatton constitute hurdles that claimants find hard to overcome (Platt, 2009). In Daniel v Secretary of State to the Department of Health  AII ER (D) 290, the claimant failed to achieve damages for psychiatric injury arising from work because, the court ruled, there were no indications or complaints of impending harm to her health; the psychiatric injury was not foreseeable and therefore a duty of care did not arise (Ghaiwal, 2014). The claimant had a history of bipolar disorder, which was known to her manager and to her boss, the defendant Secretary of State. She claimed her boss had allowed her constant bullying by a professor of medical oncology and she was given inadequate support; she claimed she had been holding two jobs and she was seriously overworked; despite that, the claimant failed to establish foreseeability (Ghaiwal, 2014).
She claimed her boss had allowed her constant bullying by a professor of medical oncology and she was given inadequate support; she claimed she had been holding two jobs and she was seriously overworked; despite that, the claimant failed to establish foreseeability (Ghaiwal, 2014).
Foreseeability has been shown to be the primary hurdle to clear in cases of occupational stress. In Boylin v Christie NHS Foundation  EWCH 3363 (QB) (QBD (Liverpool)) the court applied the foreseeability test established in Barber: (1) Did the claimant’s work create a reasonably foreseeable risk of psychiatric injury? (2) Was the system of work reasonable? (3) Did the failure to adopt a reasonable system cause the claimants’s injury? Like Daniel, Boylin failed to prove foreseeability when the test was applied (Allen, 2015), despite the fact that the claimant had made an official complaint against her line manager; it was clear she could not cope; she went on sick leave; she had to take anti-depressants and she saw a clinical psychologist for five months (Allen, 2015).
In order to prove foreseeability, the employee bringing the situation to the attention of the employer is essential, but as Lord Philips commented in Hone v Six Continents Retail Ltd  EWCA, Civ 922, the fact that the employee had complained about excessive hours, was tired and was working 90 hours a week plus the employer’s failing was not the most compelling of indications. Allen (2015) concludes that the employees have to ‘jump quite high’ to satisfy the foreseeability requirement.
Other hurdles set in Hatton seem easier to overcome. The case established that employers who offer confidential counseling services would have taken reasonable steps and could not be found to be in breach of duty; this was highly criticised because employers appeared to had been given a ‘get out of jail free’ card (Platt, 2009). However this point has been resolved in favour of the employee. In Intel Corporation (UK) Ltd v Daw  IRLR 355, the Court of Appeal rejected the argument Intel relied on: that they had a counseling service but Mrs. Daw had not used it. She had complained to her managers about her workload being too much for her after a promotion, changes were promised but they never materialised. A further blow to counseling services as an employer’s defence was shown in Dickins v O2  EWCA Civ 1144 (Pitt, 2009: 453).
It has also been established that it is not enough for the employer to simply raise doubts about the fact that the stress was not solely caused at work, but that the employee was affected by other sources of stress; in Hartman v South Essex  EWCA Civ 6, the court ruled that as long as the employee could show that the employer’s breach of duty regarding stressful working conditions had materially contributed to the harm, the burden of proof fell on the employer to show that other causes contributed to the injury (Pitt, 2009: 454).
Another issue when considering psychiatric injury is the possible claims of secondary victims. The current law in this area was dictated primarily by the Hillsborough disaster, where ninety-six Liverpool fans lost their lives in 1989 (Lyons, 2013). This case established the concept of secondary victims (Cooke, 2009: 72); the points to establish are a close relationship of love and affection with the primary victim and proximity, which means either being present at the accident or involved in its immediate aftermath (Cooke, 2009: 73).
In a recent case, Taylor v A Novo (UK) Ltd  EWCA, the court had to decide if Ms. Taylor could claim damages from Novo as a secondary victim of an accident that her mother, a Novo employee, had suffered some weeks previously and which caused her death. The accident at work had been caused by a fellow employee; Ms. Taylor’s mother had injuries to her head and left foot. Novo accepted liability in negligence; three weeks later Ms. Taylor’s mother collapsed in front of her and died due to the injuries suffered (Lyons, 2013).
Ms. Taylor was suffering from Post Traumatic Stress Disorder after witnessing the death of her mother; she could prove a close relationship of love and affection but she could not establish proximity, when she failed to prove that the relevant event was not the accident but the subsequent collapse and death. The Court of Appeal ruled that the tortious liability was caused by the accident, despite the fact that it was the injuries in that accident that caused the death three weeks later. This case brought into light a new development regarding proximity in secondary victim cases: physical proximity to the event is necessary but it is not a sufficient condition of legal proximity. Therefore in claims of psychiatric injury incurred by secondary victims, proximity is a different legal concept from the proximity that determines the duty of care; it is only the tortious event and its immediate aftermath that becomes relevant, not subsequent events (Lyons 2013).
In conclusion, psychiatric injury through stress is highly subjective because not every person is capable of sustaining the same amount of stress; as a matter of fact, work can be stressful and demanding; it is therefore essential that claimants complain about their situation and make it clear to the employer that they are unable to cope in order to prove foreseeability, which according to the results shown in recent case law, still remains the primary hurdle that an employee has to prove in a claim for psychiatric injured caused by stress at work; It is a fine balancing act because employees may feel that if they complain too much, they may lose their jobs. Perhaps the law needs to look into raising the threshold of employer’s responsibility when dealing with occupational stress and force employers to have regular occupational health assessments as an implied term in a contract of employment.
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Barber v Somerset CC  UKHL 13;  1 WLR 1089;  2 All ER 385
Boylin v Christie NHS Foundation  EWCH 3363 (QB) (QBD (Liverpool))
Daniel v Secretary of State to the Department of Health  AII ER (D) 290
Dickins v O2  EWCA Civ 1144;  IRLR 58
Donaghue v Stevenson  AC 562
Hartman v South Essex Mental Health and Community Care NHS Trust  EWCA Civ 6;  ICR 782;  IRLR 293
Hatton v Sutherland  EWCA Civ 76
Hone v Six Continents Retail Ltd  EWCA Civ 922
Intel Corporation (UK) Ltd v Daw  IRLR 355
Latimer v AEC Ltd  AC 643;  3 WLR 259 HL
Paris v Stepney BC  AC 367;  1 All ER 42 HL
Taylor v A Novo (UK) Ltd  EWCA Civ 194
Wilsons & Clyde Coal Co Ltd v English  AC 57
Health and Safety at Work, etc Act 1974
Health and Safety Directive (89/391/EEC)