Occupational stress


Hartman v South Essex Mental Health and Community Care NHS Trust and Others, CA [2005] EWCA Civ 06 (Lords Justice Philips, Tuckey and Scott Baker)



Six appeals were presented to the Court of Appeal arising out of decisions in lower courts that were primarily in favour of the claimant (four to two).



The Court of Appeal took the opportunity to cock a snook at the House of Lords following Barber v Somerset County Council [2004] IRLR 475, by reasserting the importance of its own decision, expressed in a judgment of Lady Justice Hale in Sutherland v Hatton [2002] IRLR 263. For example: 'the stage-by-stage approach set out in Hatton to the issues of duty, breach and causation gives invaluable guidance to the path which judges should follow in this type of case.'



Lord Justice Scott Baker gave the lead decision, which the others agreed in a unanimous finding on each of the six cases.



The introduction is worth reading. It outlines a pathway through the legal technicalities of an occupational stress case starting with the following fundamental guidance laid down by Mr Justice Swanwick in Stokes v Guest Keen and Nettlefold (Bolts and Nuts Ltd) [1968] 1 WLR 1776, as a statement of general principle: 'The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad...'



Stepping forwards to Hatton, one then considers the 'helpful' 16 propositions of Lady Justice Hale and, in particular, number three, which addresses proof of foreseeability, which is the cornerstone of an occupational stress claim: 'An employer is usually entitled to assume that the employee can withstand the normal pressure of the job unless he knows of some particular problem or vulnerability.'


This was refined in Barber by Lord Walker, who stated: 'it is only if there is something specific about the job or the employee or the combination of the two that he has to think harder in terms of foreseeability.'



As Lord Philips stated in Bonser v RJB Mining UK Ltd [2004] IRLR 164: 'Thus it is normally necessary to demonstrate before breach of duty can be established that an employer had particular reason to apprehend the danger that such injury would be caused to the individual employee.'



Finally, the type of injury that must be foreseeable is not simply 'psychiatric injury'. The Court of Appeal confirmed this in Pratley v Surrey County Council [2004] ICR 159, where the claimant had suffered an immediate collapse as a result of work overload. The court found that it was not the sort of injury that was foreseeable and that it occurred by a 'quite different mechanism'. This is an important point to note. Ultimately, the Court of Appeal stated that there was nothing in Barber which affects the 'practical effect of Hatton'. So there, Lord Walker.



In looking at the individual cases, they are all fascinating in their own way. Reasonable foreseeability is always fact-specific. Therefore, each case is factually individual, but the guidance that can be extracted from each case is as follows: 'Generic' complaints are insufficient in themselves to create a finding of foreseeable risk of injury on the part of an individual claimant. Complaints should be specific to the individual claimant.



If there are other sufferers of mental illness, the cause of their conditions must be similar to the claimant's (see the particular facts of Hartman). There must be signs of specific vulnerability on the part of the individual claimant (accepting the Bonser approach).



Documentation showing the claimant applying for promotions imminent to suffering from occupational stress and appraisal documents where there was no reference to suffering from any medical problems can delay the claimant's case. Documentary evidence has little value if it is 'generic'.


Provision of a counselling service greatly assists the defendant. In one appeal, the claimant did not think he needed the counselling service and the employer's argument, which the Court of Appeal accepted, was therefore it would not have been able to spot his mental deterioration.


Expert evidence is required to demonstrate what the employers should have done in relation to easing the claimant's burden.



The two cases in which the Court of Appeal found for the claimant succeeded for different reasons. In Wheeldon v HSBC Bank Ltd, the claimant won her overwork claim because she fell within the terms held in Walker v Northumberland County Council [1995] 1 All ER 737. She had returned to work following illness and the employers had then done little, if anything, to improve her situation and monitor her progress. Therefore, the decision of the Court of Appeal in Young v the Post Office [2002] IRLR 660, and the House of Lords view in Barber were reinforced.



In Melville v The Home Office, the defendant was already aware of the potential risks to mental health created by the task of dealing with, in this instance, dead bodies. The claimant had had to deal with eight suicides in 17 years. A circular had been produced and, therefore, the court rightly held that the claimant did not have to demonstrate his personal vulnerability before his injury occurred in that the employer was on notice.



That said, the court was keen to ensure that it is understood that the provision of a counselling service is not proof that the employer accepts that there is a foreseeable risk of injury within a workplace. One does wonder why an employer will go to the expense of providing a counselling service if it does not foresee a risk.



Finally, the one appeal that did not deal with liability issues was Moore v Welwyn Components Ltd. This was an apportionment case and, thereby, a damages issue. The only point of note here is the Court of Appeal's indication that 'once it was shown that the bullying was the cause of the loss of earnings, it was for the employer to show that there were other potential causes as well'.



This contrasts with the Court of Appeal's decision in Holtby v Brigham and Cowan [2000] 3 All ER 421, the asbestosis case in which Lord Justice Stuart Smith attempted to suggest that it was for the claimant to demonstrate that there was no other exposure at any other workplace. For those who remember the case, Lord Justice Clarke dissented on this point, and the approach identified in the current case is clearly correct.



What do these cases illustrate? They show that the Court of Appeal can bite back. Hatton has been confirmed as relevant and applicable to occupational stress cases. They emphasise, (with Lord Philips presumably agreeing) that nothing that was said in Barber was 'intended to alter the practical guidance given in Hatton'.



Effectively, Barber is of little value. The claimant's difficulty remains in proving that there was a foreseeable risk of injury to him from the work that he performed and the employee will continue to struggle to demonstrate that the employer was on notice of his vulnerability. The crux is that an employer can expect 'ordinary robustness' from an employee.



'Suitability' and The Provision and Use of Work Equipment Regulations 1998



Skinner v Scottish Ambulance Service, 8 July 2004, Inner House, Court of Session, Scotland



In Hammond v The Commissioner for the Metropolis and the Metropolitan Police Authority (see [2004] Gazette, 22 July, 28), the Court of Appeal looked at the definition of 'work equipment' provided by the employer. In this case, the Scottish Court examined the definition of 'suitable' work equipment within regulation 4(1).



The claimant was injured when a needle punctured his skin. He argued that there was a different model of canula available which incorporated a plastic covering for the needle as it is withdrawn so that no part of the needle is exposed on withdrawal. The cost of the canula was 26.45 pence each compared with five pence for the type that caused his injury. The case was argued on the basis of strict liability against the defendant's costs argument.


The directive that lead to the regulations made it clear that if a risk to health and safety of an employee could not be avoided within the regulations, then appropriate measures must be taken to minimise the risk. The court found for the claimant.


Two criteria had to be fulfilled, namely: that the equipment must be suitable for the work carried out; and the employee must be capable of using it without impairment to safety and health.



The interesting aspect of the claim is the interpretation of regulation 4 and the court's adoption of the approach to interpretation of statute outlined by Viscount Simonds in Summers v Frost [1955] AC 740. The judge stated: 'First, it appears to be an illegitimate method of interpretation of a statute, whose dominant purpose is to protect the workman, to introduce, by implication, words of which the effect must be to reduce that protection. Second, where it has been thought desirable to introduce such qualifying words, the legislature has had no difficulty in doing so...'



One question is how this approach fits with the House of Lords judgment in Fytche v Wincanton Logistics [2004] ICR 975. In the instant case, the court held that the duty under regulation 4(1), namely: 'Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided', '[is] couched in unqualified terms.'



This was the same phraseology adopted by Lord Hope in Fytche who said that the wording of regulation 7(1) of the Personal Protective Equipment Regulations 1992 was in 'general and unqualified terms' and could 'easily' have been drafted to include a limitation on its application if it had been felt appropriate. While it may be argued that the duty under regulation 7(1) relates to the specific employment context, as does regulation 4(1) of The Provision and Use of Work Equipment Regulations 1998, it appears to the writer that this is an artificial restriction to achieve an end, and pleasingly the Scottish court was unprepared to do so.



Fytche seems to be a study in regret. It is the vessel that the House of Lords used to reveal that English law is empty of some of the philosophy, in respect of health and safety at the workplace, which was created with the Framework Directive in 1989. It will be interesting to see how this case is dealt with should it progress further.



By Simon Allen, Russell Jones & Walker, Sheffield