Identify the key legal issues arising from work-related stress complaints by employees and evaluate the approach of the common law for such complaints. Illustrate your answer with recent case law

In Walker, Colman J. applied the ordinary principles of employer’s liability, but no mention was made of the House of Lords’ decision Alcock v Chief Constable of South Yorkshire which stipulated that a restrictive approach should be taken towards psychiatric damage. The status of Walker has therefore been questioned, particularly in the light of the more recent case of White v Chief Constable of South Yorkshire, the House of Lords held that police attending the victims of the Hillsborough disaster could not claim against their employers for psychiatric illness suffered as a result. Although the majority of the House of Lords expressed no clear view on Walker; Lord Steyn, did however seem to advocate that the ordinary rules of tort which restrict recovery for psychiatric damage, should apply to all employee claims

The developments in this field have led to a variety of claims based on different aspects of stress at work which have been reported. Negligence claims in employment do not in any case have to result only from the workload. It is also possible for claims to be related to abuse or even physical danger in the workplace where the employer fails to protect the employee; the case of Ingram v Worcestershire County Council illustrates this perfectly. Quite obviously bullying and harassment in the workplace can also be a breach of employer’s duty and can lead to liability; this can be seen in the case of Ratcliffe v Dyfed County council, here a claim for a stress related injury was accepted when a head teacher was found to have bullied a junior member of staff. The general duty to protect the health, safety and welfare of the employee applied.

Another category of stress claims has concerned the effects of redeployment and changing job roles. These are obviously stressful circumstances for any employee. If the employer fails to take care of the employee’s general health and welfare in such circumstances then there may well be liability. This view can be supported by the case of Lancaster v Birmingham City Council, the claimant was redeployed but given no training or guidance in her new position, she then suffered three separate absences through stress and the employer failed to do anything about the problem and the defendant council admitted liability.

In any case the Walker criteria must be satisfied before a successful claim can be made. This means that it is for the claimant to show that it is the actions of the employer, knowing of the employee’s existing illness that has caused the later illness. The area is a difficult one for judges to determine and the decision in Walker has increased the amount of litigation cases involving stress at work which has caused floodgates. This has led the Court of Appeal to set out guidelines to determine the nature of the duty imposed on employers in cases of excessive stress in the work place.

Subsequent case-law has confirmed the status of Walker and attempted to clarify exactly when employers will be liable for psychiatric injury arising from stress or harassment in the workplace. The leading decision is currently Sutherland v Hatton.  This was in fact four conjoined appeals which gave the Court of Appeal the opportunity to consider the law here generally and sought to give employers guidance. It distinguished cases where the harm suffered was the reasonably foreseeable product, of specific breaches of a contractual duty of care between the defendant and a know primary victim (e.g. the employer in Walker); cases where the relationship was only in tort (e.g. Page v Smith and Alcock v Constable of South Yorkshire Police) and cases where there was a contractual claim be a secondary victim (e.g. White v Chief Constable of South Yorkshire

Nevertheless, the decision in Hatton has been welcomed by employers, as it is assumed that an employee can cope with any amount of work load, unless the employer knows otherwise. The employer will only be liable if (s)he knows, or should know, of some particular vulnerability. This will require the court to look at a number of factors such as, the nature and amount if work undertaken by the employee and signs of stress in the employee. The indications that a person is about to suffer from harm from stress at work must be plain enough for any reasonable employer to realise something should be done. Even if the risk of harm is foreseeable, the court must in every case examine what the employer could and should have done. The ‘threshold question’ is whether this kind of harm to this particular employee was reasonably foreseeable.

Although the Court of Appeal guidelines in Hatton were not appealed, Lord Walker giving the leading judgment, chose to adopt a change of emphasis. In contrast, in the conjoined case, Barber v Somerset County Council, His Lordship found the Hatton guidelines provided practical assistance, the overall test remains “the conduct of a reasonable and prudent employer, taking positive thought for safety of his workers in the light of what he knows or ought to know”.

In conclusion, the House of Lords has subsequently had the opportunity to review the principles laid down in Hatton. Following the Court of Appeal applied the Hatton criteria to individual cases in joined appeals, Hartman v South Essex Mental Health & Community Care NHS Trust, Best v Staffordshire University; Wheeldon v HSBC Bank Ltd; Green v Grimsby & Scunthorpe Newspapers Ltd; Moore v Welwyn Components Ltd; Melville v The Home Office. The Court of Appeal has more recently re-emphasised the point that a successful claimant must show that it was reasonably foreseeable that (s)he would suffer a psychiatric illness as a result of the employer’s breach of duty, not just that he would suffer from stress. Safety has always appeared to be a major preoccupation of the common law in the context of employment. Statutory obligations to the employee also demonstrate a clear concern with safety, but the health and general welfare of the employee are also elements of the duty. It is significant that the common law is beginning to adopt a similarly broad attitude towards the employee’s well being 

Word count: 1496

Annotated bibliography

C. Turner & S. Hodge, Unlocking Torts (2nd ed., 2007) Hodder Arnold  

Chris Turner LLM is a qualified barrister and Senior Lecturer in Law at Wolverhampton University. He has taught Law at all levels and is an experienced author. Sue Hodge is a qualified solicitor with ten years practising experience and is an honorary lecturer at the University of Surry and an experienced author. This book is part of a series of textbooks with a unique approach to the study of law. I found this book to be rather helpful as the text includes features, activities, key facts charts, diagrams and clear headings and sub-headings which helps aid and understanding the different areas within tort.  This book helped me understand the topic better with the fact that there is a case example to illustrate every point; this also helped me remember the cases.

V. Birmingham & C. Brennan, Tort Law Directions, Oxford 2008

Vera Birmingham I is a principal Lecturer in Law at Kingston University. Carol Brennan was until recently Principal Lecturer in Law and Director of the Graduate Diploma in Law at Oxford Brookes University; however, she is now based in the United States. This book is the recommended book for this module therefore, it was important for me to use it as a reference and understand the text. I found this book had more new cases and it discussed the legislation more in depth then any other book I used. The ‘thinking points’ of the book were rather helpful as it prompted me to thin about the subject in a more technical way.

P. Giliker & S. Beckwith, Tort, (2nd ed., 2004) Sweet & Maxwell (London)

Paula Giliker, M.A, B.C.L. and PHD, she is also a barrister as well as a Senior Lecturer in Law at Queen Mary a University of London. Silas Beckwith, LLB and is a qualified barrister and a Senior lecturer in Law at London Metropolitan University. This book is a core text book and is rather similar to the book by V. Birmingham & C. Brennan, however the cases in this book are not that recent. Nevertheless, I found the text more in-depth and understandable, which helped me answer this essay question easily.

I. Smith & G. Thomas, Employment Law, (9th ed., 2008), Oxford

Ian Smith MA, LLB of Gray’s Inn Devereux chambers, he is a barrister and Clifford Chance Professor of Employment Law at the University of East Anglia, as well as a member of the ACAS Panel of Industrial Arbitrators. Gareth Thomas LLB, BCL, he is a director of Centre of Employment Law and Head of Norwich Law School at the University of East Anglia. This book is a core text book for employment law, but it has some relevant sections and details that helped me with this essay for several reasons. The book has details about employers and employees; it also has information about employer’s liabilities which was one of the topics of this essay question. This book also illustrated the views from an employees and employers which maid me see things from a different perspective.

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