The most recent development in the field of employment-based personal injury claims concerns stress-related conditions. The issue has increasingly moved up the Health and Safety Executive’s agenda and id hence finding a place in the criminal law arm of health and safety law as well as on the civil law side. This brief examines whether the law on liability for stress at work has developed in a satisfactory manner. The brief starts by a general overview of common law and statutory obligation obligations of employers with regard to health and safety at workplace following by considering of stress as a specific health and safety issue. Then, the brief examines the common law and statutory law on liability for stress at work and whether it has developed in a satisfactory manner.
Health and safety at work: General overview
The law imposes both criminal and civil sanctions upon employers who fail to take reasonable care for the health and safety of workers. Under common law, an employer owes a duty of care to employees to select proper staff, provide adequate material, provide safe premises, and provide a safe system of work.  Not only are these duties in tort but they are also implied terms under the contract of employment so that if an employer is in breach of these terms (and the breach is sufficiently serious), the employer can resign and claim for constructive dismissal.  A higher than normal standard of care is expected of employers with non-English speaking employees to ensure they fully understand safety instructions.  An employer cannot require an employee to work excessively long hours so that it was reasonably foreseeable that the work might damage his/her health, irrespective of the fact an express term required the employee to work such long hours. 
The duty to take care for well-being of employees extends to mental as well as physical health.  The employer cannot simply sit back and wait for employee to complain. They have a duty to be proactive, at least to some degree, and also to keep abreast of current awareness on matters such as best practice on prevention of occupational stress.  However, there are limits to an employer’s common law duties in this respect. An employer is not a nanny and has not duty to prevent an adult employee from doing work which the employee knows carries an element of risk.  Similarly, an employer does not have a legal duty specifically to warn a qualified senior secretary that she should intersperse other work with her typing to avoid risk of repetitive strain injury. 
The statutory position is governed by the Health and Safety at Work etc Act 1974 (HSWA 1974) and the Management of Health and Safety at Work Regulations 1999 (MHSWR 1999).  A vast number of industry-specific and other regulations also exist. Recent regulations of general interest include the Provision and Use of Work Equipment Regulations 1998,  the Control of Vibration at Work Regulations 2005,  the Control of Noise at Work Regulations 2005,  the Work at Height Regulations 2005  as amended by the Work at Height (Amendment) Regulations 2007,  the Control of Asbestos Regulations 2006,  and the Construction (Design and Management) Regulations 2007. 
Until 27 October 2003, there was exclusion of civil liability which meant that employees could not sue their employers for injury resulting from a breach of the regulations. However, from that date employees can claim damages from their employers in a civil action if they suffer injury and/or illness caused by their employer breaching MHSWR 1999 or the Fire Precautions (Workplace) Regulations 1997.  This change was implemented by the Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003.  A subsequent amendment expressly removed the (unintended and probably remote) possibility of third parties suing employees for any breach of duty arising under MHSWR 1999.  A Corporate Manslaughter and Corporate Homicide Act 2007 criminalising gross failures in the management of health and safety causing death came into force on 6 April 2008.
Stress at work
Whilst most illness caused by work activities have a physical pathology, recent research appears to indicate that the somewhat more claims of mental stress or depression can have their origin in the workplace.  The case law show variety of causes of stress. Stress can be caused by excessive workload, pressures to meet deadlines, poor communications, office politics, uncertainty about job security, lack of guidance and/or training, demands for high standards or increased production, dissatisfied customers, bullying and traumatic nature of work.  In recent years, there has been an increasing awareness of work-related stress syndrome, which has result in a new and fertile source of litigation, whether by way of common law claims, claims for constructive dismissal or unfair dismissal, or as an aspect of claims for race and/or sex discrimination. Precise statistics are hard to come by and may vary from year to year. However, some estimates indicate that stress-related absenteeism results in the loss of some 90 milling working day each year, and that some 250,000 people are affected annually.  It is the second largest cause of occupational illness.
There is no legal or medical definition of stress. It is unlikely that stress per se, can be regarded as a clinically well-recognised illness within the meaning of the Disability Discrimination Act 1995 (DDA 1995)  , though the line dividing it from other mental illness such as depression is somewhat fine.  To come within the DDA 1995, there must be an impairment which has a substantial and long-term adverse effect which makes the person unable to carry out his/her normal day-to-day activities. However, there can be a progression from stress to anxiety, depression, clinical depression, post-traumatic stress disorder and other associated mental illness, which could well fall within the scope of the DDA 1995.  The Health and Safety Executive (HSE) defines stress as the reaction which individuals have due to excessive pressures or other types of demand placed upon them. It arises when they worry that they can’t cope”. Given this wide definition of the HSE, stress can include an extensive range of complaints. Stress can cause physical injury, such as repetitive strain injury as well as psychiatric injury. In addition, other issues such as such as bullying, harassment, discrimination, working conditions, working environment and the nature of the work carried out must also be considered in the context of work-related stress,.
Development of the law on liability for stress
Liability can arise where there has been a breach of common law or statutory duties. This part examines the development of the law on liability for stress both under common law and statutory law.
Developments under common law
The case of Walker v. Northumberland C.C.  established that the duty of care owed by employers to employees also extends to psychiatric injury and that work-related stress can result from either the character of the work carried out or the volume of work. Mr Walker was employed as a manager for social services department at NCC. He suffered two nervous breakdowns due to overwork and stress. After his first breakdown he told his employer that he was suffering from stress. NCC said it would provide help and reduce his workload. When he retuned to work, nothing was done to alleviate his stress. He had another nervous breakdown and sued NCC for breach of its duty to take care of his safety. Colman, J held that the first breakdown was not foreseeable, but the second was entirely likely unless the employer took steps to change the situation. As it had not, NCC was held to be in breach of its duty to provide a safe system of work.
Walker’s case was a landmark in that it was the first reported case of an employer being held liable for stress at work. However, the emphasis on foreseeability suggested that it might not open up the floodgates to stress claims, bearing in mind that the claimant failed to persuade the court that his original breakdown was reasonably foreseeable by his employer.  Nevertheless, in the wake of Walker’s case, claims for psychiatric injury based on exposure to an unacceptable level of stress became prevalent.  It has been debated as to whether the duty established in Walker extended to cases involving post-traumatic stress disorder. In White v Chief Constable of South Yorkshire Police,  two police officers, who suffered post traumatic stress disorder as a result of attending the dead and injured following the Hillsborough disaster in 1987, brought a claim for damages in the tort of negligence. They claimed that their employer owed them a duty of care as employees/rescuers to avoid exposing them to increasing risk of physical of psychiatric injury. By a majority the Court of Appeal held that an employer’s duty did extend to psychiatric as well as physical injury. On further appeal to the House of Lords, the decision was reversed by the majority and the door seemed to be closed on further expansion of potential liability for psychiatric loss.
In Duncan v British Coal  a mine deputy suffered from psychiatric illness after going to the assistance of a colleague who had been crushed to death at the coal face. The Court of Appeal dismissed his claim for damages because he did not see the accident happen and was directly involved in the freeing of the body. However, in Young v Charles Church (Southern) Ltd,  Mr Young successfully sued his employer for damages. He worked as a labourer and suffered severe psychiatric illness and stress after seeing a work colleague next to who he was working electrocuted. In Young v Post Office,  the Court of Appeal held that where an employee has already suffered from psychiatric illness it is reasonably foreseeable that there might be a recurrence if appropriate steps are not taken when the employee returns back to work. The court stated that the employer owes the employee duty to take such steps and to see that the arrangements made are carried through.
In Sutherland v Hatton,  the Court of Appeal heard four joined appeals by employers who had been held liable for their employers’ psychiatric illness caused by stress. Here the court adopted a cautious approach to award damages to such cases. Three out of the four appeals were successful. The court stated that there can be no liability unless there was a real risk of breakdown which the employer ought reasonably to have foreseen and which they ought properly to have prevented. In other words, in order for the employer to be liable the stress-induced injury must be sufficiently foreseeable to be plainly enough for any reasonable employer to realise that s/he should do something about it. Whilst asserting that the ordinary law of negligence was applicable in this situation, the court also stated no fewer than 16 practical propositions for dealing with such cases. The court held that the employer was entitled to assume that an employee was able to withstand the normal pressures of the job, and in most cases, to take what the employee said about her own health at face value. It was only if there were indications which would lead to a reasonable employer to realise that there was a problem that a duty to taka action would arise. One way in which an employer could protect itself from liability would be by offering a confidential advice service, with referral to appropriate counselling or treatment services.
On whether the injury to an employee was foreseeable, the court held that this did not depend on whether a person of reasonable strength of mind would have been able to cope because the employer’s duty is to each employee individually. If the employer knew or should have known that the employee had a particular vulnerability or predisposition to stress-related illness, then the employer might have a positive duty to intervene. In considering foreseeability, factors as the whether the workload was abnormally heavy, whether the work was particularly intellectually and emotionally demanding for the employee and the level of demand made compared with other employees would all be relevant. In deciding whether the employer has breached the duty of care, the question of what options were available should also be considered. However, if the only way of making the employee safe was to dismiss him, the Court of Appeal did not consider that the employer would be in breach of the duty by letting the employee continues if she was willing to do so. The Court of Appeal also emphasised that the employee must show not merely that the harm was caused by occupational stress, but that it was caused by the employer’s breach of the duty.
One of the losing employees successfully appealed to the House of Lord under the name of Barber v Somerset CC  on the grounds that there was no sufficient reason for the Court of Appeal to have set aside the decision of the trial judge. Nevertheless, the House of Lords approved the Court of Appeal’s restatement of the law as a useful practical guidance but warned against treating it as if it had a statutory force. In this case, the House of Lords recognised that employers have a duty to be proactive and to take the initiative where an employee is suffering from s stress, rather than simply adopt a “wait and see position.” An employer may, therefore, be expected to do something to assist an employee who is suffering from workplace stress.
Given the uncertainties existed in this area of the law the Court of Appeal’s propositions provided guidelines in future litigations. But it is somewhat surprising that the Court relied so heavily on classic concepts as the basis of its propositions.  Sutherland decision left the impression that it would be very hard for a claimant to adduce conclusive evidence that the employer’s negligent conduct had caused psychiatric injury.  The crucial question remained was whether the employer was aware of the problem or vulnerability otherwise the employer can assume the employee can withstand the normal pressures of work. In Bonser v RJB Mining,  the Court of Appeal stressed that in order to success in a claim for psychiatric illness caused by stress, a claimant must establish not simply that it was reasonably foreseeable that overwork would lead to stress but that it would lead to a breakdown in the stressed employee’s health. Therefore, to establish liability there must be clear evidence to put the employer on notice that the employee’s workload would lead to stress and crucially that it was reasonably foreseeable that it would lead to a breakdown in health. 
However, more recent cases have debated the law on claims arising from stress at work and it can be seen that it is still a developing area of law. In 2005, a further four joined appeals in stress cases went to the Court of Appeal under the name of Hartman v South Essex Mental Health and Community Care Trust.  The courts reemphasised the applicability of general principles of negligence and Sutherland’s guidelines on determining reasonable foreseeability for psychiatric injury caused by stress. However, two new points emerged from the case. In one of the cases, Wheeldon v HSBC Bank plc,  the Court of Appeal accepted exceptionally that a part-time employee could have a successful stress claim. In another, Melville v Home Office,  the Court of Appeal made a very important point that if the employer should foresee the possibility psychiatric harm because the nature of the job itself involved exposure to traumatic incidents, it was not necessary that it should have foreseen the harm to the individual employee. The claimant in this case was a healthcare officer at prison, and his duties included recovery of the bodies of prisoners who had committed suicide. He had dealt with eight suicides over a 17 year period and his illness was triggered by the last, but there has been nothing previously to suggest to his employers that he was likely to react in this way. Nevertheless, the employer was held liable.
Applying the guidance in Sutherland, the Court of Appeal in Harding v The Pub Estate Co,  felt that despite the fact that a pub manager had obviously suffered personal injury caused by his stressful work, the trial court was wrong to impose liability on the employer. The test is whether injury to the particular employee was reasonably foreseeable in the light of what the employer knew or ought to have known. Here the evidence did not show that the employee had to put the employer on notice of the health risks as a result there was not breach of duty. However, the fact that the employer is aware of the long hours worked by the claimant could be relevant evidence that the risk of psychiatric injury is foreseeable. In Home v Six Continents Retail Ltd,  upheld a finding that it was reasonably foreseeable that a pub manager would suffer psychiatric injury if he continued to work long hours without adequate support. The court applied the clear and workable test propounded in Sutherland, particularly the seventh proposition that the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it. Here the fact that the landlord had refused to sign an opt-out from the 48 hour limit and had persistently complained about his working hours and lack of support was sufficient to justify the conclusion that harm to his health was reasonably foreseeable.
In Hatton, the court had said that an employer who offers a confidential advice service, with referral options to an appropriate counselling service, was unlikely to be in breach of their duty of care. However, later cases have shown that each decision will be based on its own facts. In Intel Corporation (UK) v Daw,  the argument by an employer that the provision of a counselling service was enough to discharge their duty to take reasonable steps to prevent an overworked employee’s breakdown failed. Here, the Court of Appeal upheld a decision to award £134,000 to a stressed employee who had made use of counselling services provided by her employer. Similarly, in Dickins v 02 plc,  the Court of Appeal held that the advantage of the confidential advice scheme was that it might provide an outlet for employees who would otherwise admit that they were close to breakdown. But in this case, where the employee had repeatedly told her manager directly that she was not coping and at the end of her tether, to refer her to counselling was not an adequate response.
An issue which regularly arises in the stress cases in whether the employee’s psychiatric injury was caused solely by pressures at work or whether problems in their personal life were equally to blame. Like other negligence cases, the claimant must show that it was the breach of duty by the defendant which actually caused the harm complained of. However, in Sutherland and Hartman cases the Court of Appeal made it clear that it is not enough for the employer simply to raise doubts about whether the employee was subject to multiple sources of stress. Provided that the working conditions materially contributed to the harm suffered, the onus will be on the employer to prove that other causes contributed to the injury. Only if the employer can do this will damages be reduced.
Developments under statutory law
The UK Government purported to implement the Framework Health and Safety Directive 89/391/EEC through the Management of Health and Safety at Work Regulations 1992 and 1999. It arguably failed to do so properly in at least one important respect. It specifically excluded civil liability for breach of the 1992 Regulations  and later, the 1999 Regulations.  This was rectified by the Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003. The civil liability exclusion for breach of the 1999 Regulation (which replaced the 1992 Regulations) was removed from October 27, 2003 for employees. The civil liability provisions of the 1999 Regulations were amended in 2003, in response to concerns raised by the EC Commission, to enable employees to claim damages from their employers in a civil action where they suffer injury and/or illness caused by the employer’s breach of those Regulations. 
Compliance with the requirements of the regulations is not, in order to comply with the criminal standard, subject to a test of what is “reasonably practicable” under section 2(1) of the HSWA 1974. No such standard applies in relation to civil liability. The Management of Health and Safety at Work Regulations 1999 do not mention the phrase “reasonably practicable”. The European approach to health and safety is preventative. It requires employers to employ a competent person to assess all the known risks of work and deal with them based upon the principles of prevention. As a result the HSE guidance now recognises that all occupational stress should be avoided, as opposed to pressure, which can be productive. The HSE has advised that stress should be treated like any other occupational health risk. An employer’s risk assessment should include the risks of psychological as well as physical injury. The latest HSE guidance on stress is entitled Tackling Work Related Stress, A Manager’s Guide to Improving and Maintaining Employee Health and Well-Being. It recommends employers evaluate the risk of occupational stress by reference to culture, demands, control, relationships, change, role, support, training and factors unique to the individual.
There have been dramatic developments in the potential statutory liability of an employer where the psychiatric illness is caused by the conduct of a fellow employee. In particular by relying on the Protection of Harassment Act 1997 (PHA 1997), and breach of statutory duty an employee does not have burden of establishing that injury was reasonably foreseeable. Under the PHA 1997, the offence of harassment is created and a civil remedy is provided for whereby a claimant may be awarded damages for any anxiety or financial loss caused by the harassment. There is no requirement to prove forseeability of a psychiatric injury. Nor that the claimant has actually suffered a recognised psychiatric injury. Therefore, in order to succeed in a civil claim under the PHA 1997 appears at first sight that a claimant has less hurdles to surmount or at any rate, the hurdles that he does have to surmount are significantly lower. As a result, it has become the practice in common law stress claims involving bullying or harassment at work to plead cases in the alternative so that if the claimant cannot satisfy the burdens in the common law claim, they may find it easier to succeed in a claim under the PHA 1997.  In Majrowski v Guy’s and St Thomas’s NHS Trust, the claimant chose not rely on established routes of litigation. Instead he successfully brought his claim under the PHA 1997, which is not primarily about employment situations at all. However, in the case the House of Lords approved an earlier Court of Appeal ruling by agreeing that employers can be vicariously liable for breaches of the PHA 1997 by their employees. The test is that a harasser must have knowingly caused serious distress or alarm on at least two occasions.
The precedent established in Majrowski was used in Green v DB Group Services (UK) Ltd  The case concerned, on the fact of it, a stress-based personal injury claim of a similar nature to the Walker case. Ms Green had been bullied by colleagues, had a breakdown as a result, returned to work, had been bullied again and had a further breakdown. This had happened over a four-year period and involved Mr Green suffering unpleasant verbal abuse from five separate colleagues. Eventually, when it became clear that she would not be returning to work in the foreseeable future, the employer dismissed her. Significantly, Ms Green relied on the Majrowski judgment as well as on longer established stress-based precedents in bringing her case. This was allowed the High Court to award her the very substantial amount of damages exceeding 1.5 million. The extent to which substantial numbers of people will bring future cases using the Majrowski route is, however, unclear. 
Since the decision in Walker, there have been a growing number of cases concerning the liability of employers for an employee’s psychiatric illness caused by stress at work. However, at the same time, ever since the decision in Sutherland, claimants face an uphill struggle in stress cases. The position has not been made any easier in subsequent Court of Appeal decisions. These decisions also show that the Court of Appeal is quite prepared to review the conclusions of the judge at first instance on this issue. However, it could be argued that the new Court of Appeal’s decision in Dickins case has lowered some of the hurdles, with the result that more stress claim that would have failed previously may now. The court made changes to the tests that a claimant must overcome in relation to reasonable foreseeability, breach and causation. The court also ended the previous rule relating to apportionment of the claimant’s damages between tortious and non-tortious claims. However, despite these developments, stress claims are becoming increasingly more difficult for claimants to win and the success rate of cases referred to solicitors for consideration is very low. In addition, the extent to which substantial numbers of people will bring future cases using the PHA 1997 route is not clear. All these may suggest that the law on liability for stress at work has not developed in a satisfactory manner. However, as more recent cases have debated the law on this area, it can be argued that this is still a developing area of law.
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