The Court of Appeal on Employee Psychiatric Injury

The Court of Appeal stated that an employer will escape liability for an employee's psychiatric injury unless it was reasonably foreseeable that the employee in question would suffer such an injury as a result of occupational stress. The Court proceeded to consider the circumstances in which ir can be said to be reasonably foreseeable that a psychiatric injury will occur. They stated that there are no occupations so intrinsically stressful that psychiatric injury is always reasonably foreseeable.

In the Court's view, tie answer to the question of foreseeability will depend upon tiie relationship between the particular demands of a job and the particular characteristics of the employee concerned.With this in mind, the Court listed a number of factors chat were relevant to the issue of foreseeability. These factors were split into two groups, one relating to the demands of the job and the other to the employee's circumstances.

The first group included the following considerations:

• The nature and extent of die work done by the employee
• Whether the employee's workload is much greater than is normal for the kind of job which he or she performs
• Whether the employee's work is particularly intellectually or emotionally demanding
• Whether demands being made of the employee are unreasonable when compared with the demands made of others in comparable jobs
• Whether there are signs that others doing the same job are suffering harmful levels of stress
• Whether there is an abnormal level of sickness or absenteeism in the employee's job or department.
• The second group of factors reflected the Court's view that the most important question centres on what the employer knew, or ought reasonably to have known, about the circumstances of the individual employee in question. The Court stated that the following factors might be relevant:
• Whether there are signs from the employee of impending harm to health
• Whether the employee has a particular problem or vulnerability
• Whether the employee has already suffered from illness attributable to stress at work
• Whether there have recendy been frequent or prolonged absences that are uncharacteristic of the employee and whether there is reason to think that these are attributable to stress at work.

The Court went on to state that an employer will be entided to assume that an employee can cope with the normal pressures of a job unless he knows of something specific about the job or the individual concerned that should make him consider the issue of psychiatric injury. As for the question of how much an employer is expected to know about an individual employee's circumstances, the Court stated that an employer is not obliged to make intrusive enquiries and is generally entitled to take what he is told by his employee at face value.

In conclusion, the Court stated that a duty to take steps only arises where signs that an employee might suffer psychiatric illness from stress at work are plain enough that any reasonable employer would realise that he should act.

Duty to take steps

The Court then moved on to warn against the assumption that an employer will always be in breach of his duty of care if he fails to take steps to prevent an employee from suffering a reasonably foreseeable psychiatric illness. A number of factors must be considered before one can conclude that an employer is under a duty to take steps. These include the magnitude of the risk of psychiatric injury occurring; the gravity of the injury which may be suffered; the cost and practicability of preventing such injury -particularly in view of the employer's resources; the effect that any steps taken would have upon the employer's other employees; and whether such steps would actually prevent the injury occurring.

The Court had two further comments about the steps that an employer might be expected to take. First, they stated that an employer who offers a confidential advice service, including counselling or treatment, is unlikely to be found in breach of duty except where he has been placing unreasonable demands on an individual where the risk of psychiatric injury was clear. Secondly, they stated that one step an employer is not obliged to take, even where that step would be the only reasonable and effective one available, is to demote or dismiss an employee in order to remove him or her from a stressful situation. In the Court's view, an employer will not be in breach of duty simply by allowing a willing employee to continue in his or her job.

Causation and damages

Even where an employer has breached the duty of care owed to an employee, and where the employee has suffered psychiatric injury, the employee in question still has to demonstrate that the breach of duty has caused or materially contributed to his or her injury.

The Court went on to note that, unless an employee's psychiatric injury is indivisible from the employer's breach of duty, where a psychiatric injury has more than one cause, the employer should only pay for the proportion of the injury attributable to his breach. The Court further noted that an assessment of damages will take account of any pre-existing disorder or vulnerability which, the employee had, and the possibility that the employee would have suffered a psychiatric injury notwithstanding the employer's breach of duty.

The Court summarised their guidance, listing 16 key principles, which we reproduce in the box on page 5. Then, having set out the relevant law, the Court of Appeal moved on to apply that law to the facts of the four cases in question.

The Hatton case

H taught in a comprehensive school in Liverpool from 1980 until 1995. In 1989, following the break-up of hex marriage, she took two months off work with depression, hi January 1994 she took a further month off after she was attacked in the street. In April 1994 she was sent home for the rest of the term when her son was admitted to hospital. She saw a stress counsellor in August 1994 but did not mention this to her employer. In October 1995 she was signed off work with depression, never to return. At no stage had H complained to her employer about her workload, which in any event, had been no more burdensome than that of any other teacher in a similar school. The county court found H's employer liable in respect of H's psychiatric injury and awarded H damages of over £90,000.

The Court of Appeal overturned the county court's decision. They held that H's employer had not been under a duty to take steps to prevent H suffering a psychiatric injury because it had not been reasonable foreseeable, by reference to H's workload and pattern of absence, that she was likely to suffer such an injury as a result of occupational stress. In the Court’s view H's employer could not have been expected to examine further the causes of H's absences when H attributed them to problems at home. The Court added that, in any event, the county court judge had not identified a specific breach of duty which had contributed to H's psychiatric illness.