Occupational stress

Barber v Somerset County Council, House of Lords

By four to one the House of Lords found in favour of the claimant, Mr Barber, in relation to his claim for damages arising out of a psychiatric illness caused through occupational stress during the course of his employment as a teacher with the defendant.

The employer had restructured in 1995.

Mr Barber's workload had increased, as had that of other teachers.

He had an excellent sickness record in early 1995.

His problems started in late 1995.

He went to his general practitioner.

He spoke with members of the management at his place of work and had a meeting with an education department official.

He complained of 'work overload'.

He had an informal meeting with the headmistress in June 1995 and in the course of that month had separate meetings with each of his employer's management team.

He returned to work after the summer holiday; two months later he left school and did not return.

The Court of Appeal overturned the trial judge's finding in favour of Mr Barber.

Lady Justice Hale (as she then was) gave an authoritative and succinct judgment 'accurately expressing the principles that ought to be applied' (Lord Scott) in occupational stress claims.

In short, the Court of Appeal shifted the burden of responsibility in occupational stress cases onto the employee.

In summary:

- The individual is in charge of his own mental health;

- The individual can gauge whether the job is doing him any harm;

- The individual can then do something about it.

This approach was followed by the Court of Appeal in Bonsor v UK Coal Mining Limited, (2003) TLR 9 June 2003, when Lord Justice Ward stated that employers must have a 'sufficient indication of impending harm to health arising from stress at work, which was plain enough for any reasonable employer to have realised, so as to trigger a duty to do something about it'.

Ms Bonsor had neither complained nor looked stressed and, on the face of it, could cope.

Her duties were not unduly onerous, and most employees would have been able to perform them without the risk of illness.

It was held that the employers could not foresee that such work led to a risk of psychiatric illness.

The Court of Appeal had, however, taken a less exacting approach in Young v The Post Office (CA, 30 April 2002).

Mr Young returned to work from a period off with stress and the court held that the employers then had a duty to monitor his condition, having been put on notice that he was vulnerable.

Lord Justice May stated that it was 'plainly foreseeable that there might be a recurrence if appropriate steps were not taken when he returned to work.

The employers owed him a duty to take such steps'.

The Barber case came before the House of Lords.

Lords Bingham and Steyn did not give judgments, but agreed with Lord Walker.

Lord Rodger appears to have disagreed with Lord Walker but agreed that Mr Barber should succeed.

Lord Scott dissented.

Lord Scott took up the approach of Lady Justice Hale.

The critical issue, in his view, was the standard of care to be observed by the school authorities.

His approach in relation not only to school teachers but also, interestingly, employed lawyers, was that 'they are all adults.

They choose their profession'.

The school knew that Mr Barber had had time off work but he had returned to work and had no further time off.

He had 'communicated nothing' to his employers in the two months prior to the breakdown.

To find for him would be to put too high a standard on the level of care that the employers owed him.

Lord Rodger, who was largely in agreement with the approach of Lord Scott, while not dissenting, looked at the matter from a contractual perspective.

His point was that one has a contractual relationship with the employer; in short, one is paid for a certain level of work.

The employer is not under a duty, in his opinion, to provide additional support to the employee to be able to achieve the level of work which he is contractually obliged to fulfil - at least not indefinitely, as was suggested at first instance.

In short, his view was that one cannot mollycoddle people and particularly in the professional world, where it is a matter of personal choice whether one takes on a particular position.

Lord Walker gave the lead judgment for the four who found in favour of Mr Barber.

It was his view that 'a prudent employer' would have investigated the employee's situation to see how his difficulties might be improved' in June 1996, after he had spoken with each of the management team, had a meeting with the education department official and had time off work.

The fact that Mr Barber did not come across more forcefully in his meetings, particularly with the headmistress, was, according to His Lordship because he was 'already suffering from depression'.

He had been off work at that stage for a period of three weeks and should not have been 'unsympathetically brushed off' by the employers.

They had a duty to take 'the initiative'.

His condition 'should have been monitored'.

Their Lordships' view is, therefore, more consistent with the approach adopted by the court in Young v The Post Office and re-focuses the obligation on the employer to look after the employee's health in contrast to the approach in Hatton, which, effectively, shifted the burden onto the employee.

Interestingly, the words 'risk assessment' only featured in passing in the judgment of Lord Rodger.

It seems that ascertaining whether there is a risk to the health and safety of an individual before it happens is something that the courts have little concern with.

Surely, prevention is better than cure.

If Mr Barber had been risk assessed when restructuring took place, the employer may well have ascertained that this particular worker was not suited to the tasks that he was to be asked to perform.

This judgment has, therefore, re-established the responsibility of employers to become more involved in investigating the health of employees rather than waiting for the employee to make it blatantly obvious that problems are afoot, which the judgment in Hatton suggested.

So what can we extract from this judgment? In my view it outlines the following:

- The crux of these cases is foreseeability of injury through stress;

- One looks to the individual facts of each case;

- An employer is obliged to keep himself aware of developing knowledge on occupational stress;

- Once made aware of an employee's condition, the employers are under a duty (which may differ in intensity), to investigate and act in an attempt to arrest the condition;

- The employee does not have to be forceful in his complaints, for at the time he may be ill;

- Complaints should be listened to sympathetically and not 'brushed off';

- If an employee has had a period of sick leave due to stress or mental injury, this needs to be taken seriously by his employers;

- Employers have a duty to consider how they can improve the working situation in relation to the employee, even to the extent of the expenditure on additional temporary staffing;

- Employees, while not having to resort to screaming, shouting, tears or tantrums, still have an obligation to bring their mental health problems to the attention of the employer.

It should be noted that Mr Barber's case was classed as 'borderline', yet he had visited his general practitioner, suffered a period of certified sick leave of three weeks because of stress and had reported his condition on a number of occasions to members of the management team.

Foreseeability of injury still remains a major hurdle to clear.

By Simon Allen, Russell Jones & Walker, Sheffield