Occupational stress
Hone v Six Continents Retail Ltd [2005] EWCA Civ 922


This case is notable for three reasons: it confirms the validity of the proposals outlined by Lady Justice Hale in Sutherland v Hatton [2002] IRLR 263, underlining the Court of Appeal's judgment in Hartman v South Essex Mental Health and Community Care NHS Trust and Others [2005] EWCA Civ 06; it introduces the prospect of support in a civil claim, arising from a breach of the Working Time Regulations 1998; and it raises 'proportionality' as a factor in occupational stress litigation.


The claimant was a pub manager in Luton. He had formerly been a pub manager of the year with an exemplary work record. With the loss of two 'key employees', he had struggled and complained to the employer about his excessive working hours (averaging 90 hours a week), the fact that he was very tired, and his need for an assistant manager.


The employer did nothing to relieve his burden. However, it was accepted that the impression he gave was that he was 'well, confident, and in control'. But he would not agree to opt in or out of the regulations to extend his hours beyond the 48 hours per week. Ultimately, this was a critical piece of evidence.


Lord Justice Dyson, giving the lead judgment in a unanimous finding for the claimant, dismissing the appeal of the employer, identified that the key to the case was Lady Justice Hale's seventh proposition from Hatton, namely, 'to trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should have done something about it'. He described this as a 'clear and workable test'.


The fact that the claimant had complained about the excessive hours, was clearly tired, and had in fact recorded his hours at averaging 90 per week, together with the failure of the employers to provide an assistant, while apparently 'not the most compelling indications' (Lord Philips), sufficed on this occasion.


We are reminded that stress cases are 'fact based' and that the appeal court is reluctant to interfere with the findings of the trial judge (although, of course, it mostly does).


The regulations arose because the claimant would not agree to opt in or out of them. While the court did not ask counsel for the claimant to substantiate his argument that breach of the regulations creates a 'discrete' civil claim, it was clear that the judges took the view that it did, with Lord Justice Dyson holding that 'the plain and obvious purpose of the regulations is to protect the welfare and health of employees'. This is a view that claimant practitioners may wish to explore in future overwork cases.


The then Master of the Rolls closed his judgment by making a surprising comment about the failure of the parties to supply costs schedules, so that a detailed assessment could be completed at the conclusion of the hearing. His frustration arose because the court was 'enthusiastic' to 'consider whether the costs were proportionate to what was at stake'.


This is a cause of some potential concern. The overriding objective in rule 1.1(2)(c) of the Civil Procedure Rules outlines the four factors that must be considered in assessing whether costs are proportionate, one of which is the 'complexity of the issues'. Only last month, the Civil Justice Council announced agreement to 100% success fees in claims arising from occupational stress. As practitioners realise, this is a true reflection of the risks involved.


Therefore, one wonders why the judge expressed 'enthusiasm' for considering the costs involved in the case.


While the damages may have only been £21,840, the fact is that the bill will have been a reflection of the extent of the issues at stake, the evidence required to prove those issues, and the duration of the case. As Lord Justice Dyson stated, these cases are 'fact based'.


In the past three years, the appeal court has reviewed a collection of occupational stress cases on two occasions, with the House of Lords considering a further case. The senior judiciary are not necessarily at one in relation to these cases, and the crucial question of foreseeability created a division in the Lords in Barber v Somerset County Council [2004] 1 WLR 1089.


For the judge to question whether leading counsel should have been involved in the case, and to raise the issue of proportionality in an action in which a fixed success fee of 100% is seen to be appropriate, is portentous.


One hopes that the comments were made in respect of the specific facts of this particular case, for Lord Phillips did express 'a little surprise' that it had been brought in light of he careful judgment given at first instance. Nonetheless, it is something that we should be conscious of.


It lends weight to my view that within two years, costs capping at allocation will become standard.


By Simon Allen, Russell Jones & Walker, Sheffield