Court of Appeal Stress Ruling

Last week, in the case of Hatton v Sutherland, the Court of Appeal laid down guidelines for personal injury claims arising from stress at work. The case is of interest to all employers, not least because the number of union-backed work-related stress claims has increased from 516 in 1999 to 6,428 in 2000 (according to the TUC).

The decision does not change the law in this area, but it does provide some useful clarification of what the employer's duty to take reasonable care in relation to mental health actually means in practice. Note, however, that leave is being sought to appeal the case to the House of Lords.

It has always been the case that employees bringing such claims have to show that (i) psychiatric injury to that individual was reasonably foreseeable, (ii) the employer breached its duty to take reasonable care, and (iii) the breach caused (or played a material part in causing) the employee to develop a medically recognised psychiatric illness (rather than just distress).

(i) Foreseeability

The Court of Appeal set out the following guidance on when an employer can reasonably be expected to foresee the risk to an individual's health:

Unless an employer knows of a particular problem or vulnerability, it will usually be entitled to assume the employee is up to the normal pressures of the job. There are no jobs which should be regarded as so intrinsically stressful that harm to mental health is always foreseeable - not least because some individuals thrive on the most stressful of jobs.

Whether harm is foreseeable will depend on the individual and job concerned. The indications of harm "must be plain enough for any reasonable employer to realise that he should do something about it".

Employers will need to be more alert to picking up signs of impending harm where there is clear evidence of unreasonable pressure or bullying, or of an employee in an intellectual or emotionally demanding job being overworked (such evidence could be in the form of harm to, or abnormally high absence levels in, other staff carrying out the same work).

Central to the issue will be whether there were warning signs of impending harm to health from the employee. These could take the form of complaints from the employee or abnormally high levels of absence (in terms of frequency or duration).

If an employee conceals his condition, an employer should be entitled to take his employee's statements at face value and is not required to make "searching or intrusive...