Negligence – Breach of duty of care – Causation – Foreseeability – Occupational stress

Dickins v O2 Plc: CA (Civ Div) (Lords Justice Sedley, Wall, Lady Justice Smith): 16 October 2008

The appellant employer (O) appealed against a decision that it was liable to the respondent employee (D) for psychiatric injury negligently caused by excessive stress in the course of her employment with O.

D had been employed by O for several years and promoted to a position for which she did not have the necessary qualifications, although appropriate training and support had been promised. D did not receive help and soon became exhausted and ‘at the end of her tether’. She asked to move to a less stressful job but was told that there were no vacancies at the time. D continued to struggle with her job and requested six months off as she felt she lacked physical and mental energy and did not know how long she could carry on before taking sick leave. She did not contact the in-house counselling service that her manager recommended, since she was already undergoing private counselling. D asked again for a six-month break and her manager agreed to refer her to the occupational health department, but that was not done. She was later signed off as unfit for work on account of anxiety and depression, and never returned. Her employment was later terminated and she brought an action for damages. The court held that it was clear that D had been under extreme stress, that she should have been granted time off when she first requested it and that an immediate referral to occupational health should have been made. It also held that the failure to do so had deprived D of the chance of not plummeting to the depths of illness that she later reached.

O submitted that: (1) D had not gone far enough to put O on clear notice that unless something was done it was foreseeable that she would suffer psychiatric harm. O also argued that the court had erred in finding that all previous incidents in which D complained of stress amounted to sufficient notice; (2) there was no evidence to support the conclusion that it should have allowed D a break as requested and that, as it had offered D counselling, there was a presumption that there was no breach of duty; (3) the court considered whether D had lost the chance of not descending so deeply into illness, rather than asking itself whether a breach of duty had made a material contribution to the onset of the illness.

Held: (1) It was clear that the court appreciated the difference between mere stress and a stress-related illness, and that the indication of such an illness had to be clear before an employer was under a duty to do something about it. It also held that when D first asked for time off she was ‘under extreme pressure’ and was ‘about to crack up’. Therefore, D’s condition should have been plain to her managers, so it was clear that O had received a clear indication of her impending illness. In addition, the court did not consider that the previous incidents had amounted to a sufficient indication of impending illness as to put O on notice, but merely referred to such incidents as part of a history of which O was aware. In the circumstances, the court was entitled to take the whole background into account when considering O’s reaction to D’s request for time off.

(2) The court was also entitled to infer that O should have referred D to occupational health and given her a break as requested, so there had been a breach of duty. D’s impending illness should have been clear to O, so it should have been clear that a reference to occupational health would have set in motion a proper professional consideration of D’s problems by a specialist doctor, while allowing D time away from work would have removed the pressure upon her. Further, D was already receiving counselling and had made it clear to O that she was suffering because of the stress at work. Later, O’s mere suggestion that D use its in-house counselling service was not adequate in the circumstances. The presence of such a service did not automatically discharge O’s duty of care, Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70, [2007] 2 All ER 126 applied.

(3) Although the trial court failed to ask itself the correct question regarding causation, it was clear from all the evidence that the breach of duty had made a material contribution to D’s severe illness. D had had a good work record, but had been promoted to the very limit of her capability. As a result she became extremely stressed and exhausted and unable to work, at which point she tipped over the edge from stress into breakdown. It could be inferred that the breakdown was because nothing had been done to address D’s problem, and therefore it was clear that O’s ­failure to deal with those issues ­materially contributed to D’s psychiatric illness, Barber v Somerset CC [2002] EWCA Civ 76, [2002] 2 All ER 1 considered.

Appeal dismissed.

Bruce Gardiner (instructed by Beachcroft) for the appellant; Graham Aldous QC, Gaurang Naik (instructed by Underwoods) for the respondent.