Date:  3 November 2008

STRESS - AN UPDATE

The Court of Appeal have recently given us further guidance on the handling of such claims.

On 16th October 2008 the Court of Appeal handed down their judgment in the case of Dickins –v- O2. Essentially the Court of Appeal upheld the Trial Judge’s decision to award the Claimant damages for injury caused by occupational stress.

The basic facts of the case are as follows. Ms. Dicken’s job involved the preparation of management and regulatory accounts. She was psychiatrically vulnerable and this role was at the limit of her capabilities. Part of her job was to carry out a quarterly audit. She found the audit in February 2002 “extremely stressful”. She had a short holiday but returned to work exhausted and on 11th March 2002 she asked her line manager for a different and less stressful job. As there were no vacancies available at the time she was told that the matter would be reviewed in three months. Thereafter she had been repeatedly late for work.

On 23rd April 2002 she requested a six month sabbatical. She said she was stressed out, was having a real struggle to get out of bed in the mornings and to get to work on time because she felt so drained physically and mentally and did not know how long she could carry on before being off sick. She was advised to access O2’s confidential counselling helpline and told her sabbatical request would be considered. On 30th May 2002 she repeated her concerns during her appraisal and she was referred to the occupational health unit albeit with some delay. Before any appointment was fixed she suffered a breakdown and never returned to work.

Both the Judge and the Court of Appeal found that it was reasonably foreseeable from 23rd April 2002 onwards that psychiatric injury would follow. There was sufficient indication of impending harm to health given the Claimant’s description of the seriousness of her symptoms and the important background context that these problems did not come “out of the blue”. The fact that the Claimant had been mentioning difficulties over a period of time was significant given that she was usually a conscientious employee.

It can be seen from the above that it may not be necessary to show that a claimant has previously suffered a breakdown if her words and actions in the recent past have the cumulative effect of alerting a reasonable employer to the risk of injury.

The Trial Judge found that the employer was in breach of duty in not sending her home and in not making an immediate referral to the occupational health unit. The Court of Appeal upheld the Trial Judge’s view.

It was pointed out to the Court that when she consulted her GP on 23rd April the GP had not signed her off work and that there was no specific medical evidence that suggested that that step was likely to do her some good. Smith LJ found however that that fact was capable of reasonable inference.

Although the employer offered a confidential counselling service again Smith LJ found on the facts that this was insufficient to discharge their duty to their employee. The employer was already aware that the Claimant was receiving counselling through her GP and in any event this was a case which required management intervention.

In addition, on the facts, whilst other non-tortuous factors had played a part in the breakdown the “obvious inference” was that “she tipped over the edge because nothing significant had been done to recognise and address her need for a rest and for a change to her work requirements”.

What has been left open in this appeal is the question of apportionment which was not raised. Both Smith LJ and Sedley LJ however were critical of the Trial Judge’s decision to reduce the total of damages by 50% across the board for causes of stress which were not work-related. In their view (albeit obiter), Hale LJ was wrong to suggest in Hatton that an employer found liable for psychiatric injury caused by occupational stress should only pay for that proportion of the injury caused by them.. The injury was truly indivisible and so an employer should be liable for the whole injury if proved that the tort had made more than a minimal contribution to the injury.

We will wait to see whether there is an appeal to the House of Lords. 

Albert Powell