Negligence—Duty to take care—Employer

Court of Appeal, Civil Division
Pill, Wall and Richards LJJ
7 February 2007

The considerable and helpful guidance in Hatton v Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1 concerning claims for stress at work does not preclude or excuse the trial judge either from conducting a vigorous fact-finding exercise or deciding which parts of the guidance are relevant to the particular circumstances. The reference to counselling services in Hatton does not make such services a panacea by which employers can discharge their duty of care in all cases.

Roderick Moore (instructed by Lemon & Co) for the claimant.
Martin Porter QC and Nina Goolamali (instructed by Bevan Brittan LLP) for the defendant.

The claimant was employed by the defendant. She began working for them, aged 19, in September 1988. In June 2001, she suffered a breakdown and had not worked since. She suffered from chronic depression. She alleged that the breakdown in her mental health was caused by the negligence of the defendant as her employer. She brought proceedings seeking damages for personal injury.

The judge held that there were two connected elements which had led to the respondent’s stress and breakdown. The first was that reporting lines in her job were confused and there was a problem of priorities between the demands made upon her by different managers. The second was that she was provided with insufficient assistance and had to work excessive hours to get the job done.

He found that, in early March 2001, on receipt of a
detailed memorandum from the claimant about her workload, the defendant ought to have known that the demands on the claimant were totally
unreasonable and that the risk of harm to her health was clear. He held that, had appropriate action been taken immediately, a significant breakdown would probably have been prevented. He found that the provision of a counselling service by the defendant did not discharge its duty of care because its use in this case could not have ameliorated that risk or helped the claimant to cope with it. He found in favour of the claimant on liability and made an award in respect of quantum.

The defendant appealed. It submitted that its provision of counselling services had been sufficient to discharge its duty of care.

lord justice Pill:

The claimant had held an important administrative position in a large organisation. She had worked for the defendant for many years. She was loyal and regarded by them as of the highest calibre, with a capacity for hard work. She wished to remain in employment with them and had prospects of promotion.

That was the essential background against which the claim had to be considered. The claimant was not likely readily to complain of the amount of work she was required to do, or to take time off, or to tackle her problems other than by consulting those who could do something about them. The stress from which she came to suffer was not caused by the volume of work alone. A combination of factors had led to the stress becoming intolerable.
The judge had been fully entitled to hold that it was a failure of management which had created the stresses and led to the breakdown. He was entitled to hold that, by March 2001, injury to the respondent’s health was reasonably foreseeable. The indications of impending harm to health were plain enough for the appellants to realise that immediate action was required.
There would be cases in which an employee might be
expected to take refuge in counselling services. The problems of the claimant, a capable and loyal employee could, however, have been dealt with only by management reducing her workload. The judge was entitled to find that, in the context of frequent complaints by the respondent of “overwork and conflicting pressures upon her”, urgent action was required of the appellants immediately upon receipt of the early March 2001 memorandum. On the medical evidence, the judge’s finding that the defendant’s failure “to take urgent and appropriate action” was causative of the severity of the depression which occurred was sound.

In those circumstances, the respondent was not required to give up her work. She was persuaded to stay in her then job on an assurance, which was not fulfilled, that assistance would be provided. The fact that the respondent did not give up her job when the stresses grew did not, in present circumstances, eliminate the duty of care owed to her.

It was not a rule of law that an employee who did not resign when stresses at work were becoming excessive necessarily lost a right of action against her employer.

A considerable amount of helpful guidance was given in Hatton. That did not preclude or excuse the trial judge either from conducting a vigorous fact-finding exercise, as the trial judge in this case had done, or deciding which parts of the guidance were relevant to the particular circumstances.

The reference to counselling services in Hatton did not make such services a panacea by which employers could discharge their duty of care in all cases. The respondent, a loyal and capable employee, had pointed out the serious management failings which were causing her stress and the failure to take action was that of management. The consequences of that failure were not avoided by the provision of counsellors who might have brought home to management that action was required. On the judge’s findings, the managers had known it was required.

The appeal against liability would accordingly be dismissed. His Lordship would also dismiss the appeal against quantum, on the facts.

Lords Justices Wall and Richards agreed.