Stress at Work: Personal Injury Claims

Two years ago the Court of Appeal in Sutherland v Hatton confirmed that to succeed in a negligence claim for damages for injury to health caused by stress at work, an employee must establish not just causation (which requires clear medical evidence), but also foreseeability of injury, and a failure to take practical steps to alleviate the risk. The Court also emphasised that the threshold for bringing a successful claim was high. Now in Barber v Somerset the House of Lords has given general approval to this approach, with the caveat that the Hatton decision constitutes 'useful practical guidance' and does not have 'anything like statutory force'.

The Lords stress that it is foreseeability of injury to health that is crucial, not just knowledge that an employee is affected by stress. Exposure to stress does not normally cause illness; something more is required to alert the reasonable employer to the danger of injury to health, and to bring the duty of care - to take steps to alleviate the risk - into play.

Barber's case illustrates the extra ingredient required. An experienced teacher, carrying increased responsibilities and workload, was signed off by his GP, suffering from stress and depression for three weeks in the summer term. He returned to work but the school did nothing to address the situation and he suffered a breakdown in October. The Court of Appeal found that the employer had not been put on notice of the risk of injury. The Lords disagreed: the earlier episode of illness was, on balance, sufficient to establish that a further illness was foreseeable unless steps were taken to alleviate the workload. However no such help was offered: 'Even a small reduction in his duties, coupled with the feeling that the senior management team was on his side, might by itself have made a real difference'.

In discrimination law, by contrast, there is no need to prove illness is foreseeable to recover full compensation (see the March 2004 update). Employees would therefore be well advised to attribute their stress to gender, race or disability related factors in appropriate cases.

Practical Implications

Employers can expect employees normally to withstand stress at work, but if they are put on notice of a risk to health, they need to enquire and consider further. Notice may come, as in Barber, from a previous period of illness; or directly from the employee if they complain about the effect of work on their health; or from a pattern of absence...