Making the most of stress claims Kate McKinlay At a time when 1 in 4 workers are now affected by work-related stress, it is unsurprising that lawyers too are seeing more occupational stress claims than ever before. Kate provides some timely guidance on how to sort the wheat from the chaff and considers whether McLennan v Hartford [2012] EWHC 346 amounts to a change in the landscape or more of the same. INTRODUCTION It is inevitable that in tough economic times workplace stress will increase. Recently published results of a study into occupational stress 1 found that work related stress almost doubled during the recession. According to the Health and Safety Executive most recent statistics there were more new self-reported cases of occupational stress in 2010/11 than spinal disorders and more working days lost as a result of stress, anxiety and/or depression than any other work related illness 2. In this context it is not surprising that lawyers are seeing more occupational stress claims than ever before. Whilst some of us may privately remain cynical about the existence of stress-induced illnesses there are two good reasons to take these claims seriously. Firstly stress-induced illnesses do exist and their consequences can be terrible. Consider the recent suicide of Mr David Charlesworth, a secondary school teacher at Rossett School, Harrogate. At the recent inquest, the coroner concluded that stress 1 Psychosocial Factors & Economic Recession: the Stormont Study by J Mondmont,R Kerr and K Addley; Occupational Medicine Journal, March 2012: 2 Health And Safety Executive Statistic 2010/2011 (http://www.hse.gov.uk/statistics/overall/hssh1011.pdf) 1
at work was a contributing factor. Mr Charlesworth set fire to himself, resulting in 79 per cent burns from which he died the next day 3. Secondly a well-founded claim can be a profitable/expensive enterprise depending on who you are acting for. With an allowable uplift of 100% from the outset for both solicitors 4 and counsel 5 it is in the personal injury practitioner s interest to identify the winners and the losers early on. So what do you need to be looking for when an occupational stress claim walks through the door? It is suggested that there are three key elements, which this paper will consider in more detail, and which can be summarised as follows:- 1. An injury, which is more than stress, and arises out of work related stress 2. Plainly visible signs of impending harm 3. Failure on the part of the employer to take positive steps to reduce the risk of harm 1. AN INJURY ARISING OUT OF WORK RELATED STRESS In order for the harm to be actionable, the Claimant must experience more than stress 6. The Health and Safety Executive defines stress as follows:- the adverse reaction that people have to excessive pressure or other demands placed upon them 7. It is common knowledge that a certain amount of pressure is good for us; it is motivational. It is also well documented that too much of it becomes injurious to health. It is also course very subjective and individuals have both different tolerance 3 Yorkshire Post, reported 23/2/12 4 CPR Part 45 r45.24 (2)(b) 5 CPR Part 45 r45.25(2) 6 Hatton v Sutherland, LJ Hale s first principle 7 http://www.hse.gov.uk/stress/furtheradvice/whatisstress.htm: Work related stress What is stress? 2
levels and different triggers for stress. Early symptoms of stress include being prone to tears, difficulties with sleeping, frequent loss of temper, headaches, and anxiety 8. The stress must have resulted in the Claimant suffering an injury, which will be usually be psychiatric and must therefore fall within the scope of one of the disorder recognised by the 4 th Edition of the DSM-IV-TR 9. There are a wide range of psychiatric injuries which can occur as a result of stress, the most common of which are nervous breakdowns, recurrent depressive disorders, suicidal tendencies etc. Expert evidence will be required both to establish the existence of an injury, and the cause of it. 2. PLAINLY VISIBLE SIGNS OF IMPENDING HARM Foreseeability is the central issue in most stress at work claims. The leading case on foreseeability remains Sutherland v Hatton 10. This case, presided over by the then Lady Justice Hale (now Baroness Hale) consisted of 4 consolidated appeals concerning claims brought by employees against their employers for psychiatric illness arising from stress at work. In her judgment she identified 16 propositions, the most quoted of which relate to foreseeability. Whilst the test to apply is now settled law 11, its application has been less certain. Since Hatton, the exact parameters of this threshold have been the subject of numerous claims, the latest of which is MacLennan v Hartford 12. In this case the claimant was a human resources manager in a well-established international financial services company. She had worked there for just over a year 8 http://www.hse.gov.uk/stress/furtheradvice/signsandsymptoms.htm 9 Diagnostic and Statistical Manual of Mental Health Disorders (DSM-IV-TR). The 5 th Edition, due to be published in May 2013 in its draft from identifies significantly more disorders than the 4 th Edition. This is also worth consulting bearing in mind the imminent publication date. 10 Sutherland v Hatton and other appeals [2002] EWCA Civ 76 11 Dyson LJ in Hone v Six Continents 11 agreed with Hale LJ s 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 have done something about it. He described this as a clear and workable test to apply. 12 [2012] EWHC 346 3
when, on 6 th January 2006, she felt dizzy and ill at work, went home, and never returned to the office. She was in due course diagnosed with chronic fatigue syndrome which she alleged had arisen as a result of stress at work. Mr Justice Hickinbottom dismissed her claim on the grounds she had failed to establish foreseeability. In his consideration of foreseeability Mr Justice Hickinbottom, interpreted the test as follows:- i. It is not enough for the claimant to establish that his employer knew/ought of have known that Claimant had too much work to do or to even to show that he was vulnerable to stress as a result of over work. To succeed, he must show that in addition that the employer knew/ought to have known that; as a result of these factors, there was a risk of harm to the Claimant. ii. Even then it is not enough to show a risk of harm occurring in the future. The employer must have knowledge of an imminent risk of the harm of the type that in fact occurred. iii. The employer is entitled to assume that an employee can withstand the normal pressures of the job (Hatton) unless a. The job is such that employees are known to be at particular risk (eg if other employees doing a similar thing have become ill as a result of the work) b. The employer knows/ought to have known that a particular employee is especially vulnerable to stress-induced illness (eg that employee has already i. had a stress induced psychiatric period of which his/her employers were aware/ought to have been aware, or he manifests some clear signs to his employer of some impending harm to health prior to the illness in fact suffered) c. Of these, the actual/constructive knowledge of the employer of an individual s particular vulnerability is likely to be of greater importance on the basis that employees all have different abilities to deal with stress. 4
iv. The employer only has a duty to act when signs are plain enough for any reasonable employer to realise that he should do something about it. Though there may be circumstances where the signs are sufficiently clear without a disclosure directly or through a doctor that the working is having a detrimental effect on the employee, foreseeability will be harder to establish than in those case where there is a direct complaint. This is especially so because there is no general duty upon the employer to make searching or intrusive enquiries such that the employer is entitled to take at face value the inference given by an employee who returns to work without further explanation that he is fit to return to the work that he was doing before. It is suggested that this a helpful and succinct aide memoire of the various elements relevant to a consideration of foreseeability for generalist PI practitioners who may be less familiar with occupational stress claims. Importantly it keeps the door open to Claimants who have not made a disclosure, directly or otherwise. The judge s reasoning for dismissing Mrs MacLennan s claim was as follows:- i. There was nothing about her job to give rise to a duty on account of the risks inherent in the job itself. There was no evidence of anyone else in her company either in her department or at all, becoming ill because of their work. Even though she worked hard, often doing more than her contracted 39 hours per week, there were others who worked harder. The judge found that as a Human Resources manager she was in fact in a better position than most as she was aware of the risk of stress at work and the adverse consequences that might flow from it. ii. Her employer did not have any actual knowledge of the predisposing characteristic of Mrs MacLennan to contract Chronic Fatigue Syndrome and other psychiatric conditions. Nor could it be said to have constructive knowledge there was a conflict of evidence on this point which resolved in the Defendant s favour. 5
The most recent example of a Claimant successfully establishing foreseeability is Whiteside v London Borough of Croydon 13. This case concerns a claimant who suffered two breakdowns during the course of his employment with the defendant. The first in 1999, resulted in his being medically certified as unfit for work for four months, after which he returned to work. The second resulted in his being medically certified unfit for work with symptoms of anxiety and depression, following which he never returned to work. Upon his return to work after the first breakdown his employers were advised by their own medical adviser that he should avoid concentrating on multiple problems and work on single specific tasks. Following his return to work he was provided with an excessive workload, coupled with poor management. The claimant became more and more stressed and drew these problems to the attention of management particularly in his job reviews. His line managers failed to respond to these and other warning signs that he was being exposed to unacceptable stress levels as a result of his working conditions. Following a particularly stressful period, he broke down completely in October 2004. HHJ Thornton QC found it was foreseeable that the accumulation of poor management, poor working conditions, the absence of a risk assessment and consequent failure to reorganise his department and or devise or implement appropriate health and safety measures to do with stress control together with his employer s actual knowledge of a previous instance of work-related psychiatric illness gave rise to a significant increase in the risk of such a stress-related breakdown. Plainly this case is at the other end of the spectrum from MacLennan v Hartford. As such the two taken together provide sterling illustrations of the outer boundaries of foreseeability. However there remains uncertainty as to the paremeters of plainly visible signs of imminent harm which fall short of verbal and/or written complaints. Whilst MacLennan v Hartford helps clarify the principles in relation to foreseeability, factually it does not take the law much further. What of the Claimant shows physical signs of failing to cope with stress but does not make any explicit disclosure to his employer. What, for example of the Claimant, who uncharacteristicially breaks down 13 [2010] EWHC 329 (QBD) 6
in tears; is uncharacteristically aggressive and or loses his/her temper frequently. Amongst friends such behaviour would be a cause for concern, but is it enough to trigger a duty against an employer? The current answer is that the position remains unclear. What is certain is that in order to formulate a case it is essential to look at all the circumstances and in particular the particular nature of the job and the particular nature of the employee both before and after symptoms arose. And perhaps your case will be the test case we are still waiting for... 7
3. A FAILURE TO ACT In the event that a claimant manages to establish foreseeability, he/she will then need to show a breach of duty. This will usually amount a failure to act rather than anything else. The ordinary principles of employer s liability apply 14. The test is as follows:- the conduct of the reasonable and prudent employer taking positive thought for the safety of its workers in the light of what it knows or ought to know...where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risk, he may be thereby obliged to take more than the average or standard precautions 15. The court will consider what the employer could have done to minimise the risk of injury. This is likely to be for example acknowledging the Claimant s pressures; and/or restructuring and/or sending the employee home. Often the required response will not involve great expense and will have been relatively easy to implement. Conscientious employers with good management structures who have carried out stress related risk assessments pursuant to Regulation 3 of the Management of Health and Safety Regulations 1992 are unlikely to be found to be in breach. In contrast employers who have ignored the risks that stress may present to their workforce are likely to struggle to avoid a finding of breach. Most commonly breach has arisen from a failure to act upon either verbal or written notice, informal or otherwise, of the risk to the Claimant s health. In Whiteside v Croydon LBC 16, the Claimant complained repeatedly about his workload and the lack of guidance from 14 This was the subject of LJ Hale s first principle in Sutherland v Hatton [2002] EWCA Civ 76: there are no special mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer s liability apply. NB there is an additional cause of action under Regulation 3 but claimant still has to establish foreseeability. 15 Barber v Somerset [2004] UKHL 13 Their Lordships approved Stokes v Guest [1968] 1 WLR 1776 as the best expression of the test, 16 [2010] EWHC 329 (QB) 8
management. The court found the Defendant s repeated mismanagement failures were both cumulatively and individually clear breaches. In particular had the occupational nurse had the relevant risk assessment of the Claimant, she would have ensured that he stopped work immediately and got psychiatric help with the consequence that its injuries would not have been so bad. Claimants can also make use of the Health and Safety Executive guidance to provide specific examples of what employers could have/should have done in order to minimise the risk of harm to their employees. Managing the Causes of Work- Related Stress (HSG218, 2007) is the most recent and gives employers detailed guidance on how to close the gap between current working conditions and those aspirational conditions set out in The Management Standards (HSE INDG430) 17. CONCLUSIONS So what are we left with? What do we need to sort the wheat from the chaff? Firstly and ideally, but not always a previous disclosure; secondly, a failure to make a timely and substantive response to that disclosure, and thirdly an injury which amounts to a recognisable psychiatric disorder. If you have these three elements in conjunction with each other, your claim is likely to have good prospects. Where an employee fails to complain, but shows physical signs of being unable to cope with the stress she is under the claim your claim s prospects are more uncertain. You will need to establish knowledge of either inherent risks in job or inherent vulnerability with employee such that employer on notice to be proactive in stress management notwithstanding lack of direct disclosure. In this context MacLennan v Hartford 18 provides helpful theoretical guidance but falls short of being the test case that this complex of law is crying out for. KATE MCKINLAY 17 The Management Standards define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. 18 Ibid. 9
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