The approach of the common law

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Identify the Key legal issues arising from work- related stress complaints by employees and evaluate
the approach of the common law of such complaint.

Until recently, there was no relief available for the employee who suffered psychiatric injury arising from
work-related stress. If no physical damage was found, the courts would not allow the claim to proceed.
However, as medical and scientific knowledge has advanced significantly in the last few years, the
principle of the employer's liability in occupational distress has developed in the law of torts. However,
there is still a lot of room for improvement and development possible in this area of law. Therefore, for
now the courts have to rely on the rulings of some recent cases which have helped them set out some
judicial guidelines.

To start with, a landmark case in this area of law was undoubtedly Walker v Northumberland County
Council in which Colman J said that 'there was no reason why psychiatric damage should not fall into
the category of employer's liability'. Another important key issue ruled out in the above case was that in
case the employee had suffered a nervous breakdown, it is reasonably foreseeable that he might suffer
another one should the employer not give him any support. After this case it was established that
foreseeability was one of the main preconditions in bringing the claim on the grounds of occupational
stress. However, after these rulings courts, of course, faced the fear of the litigious floodgates being
opened, particularly from public sector employers (due to the nature of the Walker case). Another very
important ruling developing this area of law came in 2001 in Cross v Highlands and Islands Enterprise ,
in which J McMahon said that psychiatric injury should be treated in the same way as the physical
injury'.

However, a very important case helping the courts to establish more efficient and wider criteria for
claims of occupational stress came in 2002 and is known as Hatton v Sutherland in which a school
teacher suffered from a nervous breakdown due to the teacher's excessive workload. In this case The
Court of Appeal ruled out a few important guidelines such as that there are no inherently stressful jobs
and the employer will only be liable if he had foreseen or should have foreseen a possibility of
psychiatric injury to that particular employee and, since the risk was foreseeable, there must be an
account taken as to what precautions the employer has taken to avoid mental harm to his employee in
determining whether the employer can be held liable. The CA in this case also set out the requirements
that the claimant must satisfy when showing that the harm was reasonably foreseeable by his
employer. In Barber v Somerset County Council , which was one of four cases brought to the CA, it
was set out that it is not enough for the plaintiff to simply prove that duty of care existed and that there
was a breach of a statutory and causal link between them, but also that the harm was caused and the
reason for that harm was work-related stress.

Thus far, an employer was only liable if, as seen from Walker v Northumberland County Council, Hatton
v Sutherland, and later held in one of the Hatton's hearings, i.e., Barber v Somerset County Council,
the employer was personally informed by the employee (or should have been aware due to previous
breakdowns) of the employee's vulnerability but said employer failed to provide him with help or
assistance.

The rulings of the above cases have caused contradiction in terms and discussions of what actually
constitutes reasonable care or specific precautions that an employer is expected to take. Hale LJ
pointed out that it depends on a number of factors such as magnitude of risk, the cost of preventing it,
etc.. However, the difficulty here is to determine objectively what an employer is expected to do from
the point of view of a reasonable and prudent employer. A solicitor T. Ward claims that regular health
checks should lessen the number of claims. However, there are a few disputed points, e.g., What if the
health check is confidential as in Hartman v South Essex Mental Health and Community Care NHS
Trust, where it was established that confidential questionnaires do not impose a duty on the employer.
The employer could also evade liability if the employment contract prevents the employer from
accessing the information about the employee. Again, it makes it difficult to say what is reasonable to
expect from an employer. So far, the employer could only be liable if he has an available health record
of previous mental disturbances as in Walker or a record of a complaint to the employer about the
employee's mental health as in Hatton. A further development came in Hone v Six Continents Retail
Ltd where it was argued whether mere complaints about excessive workload and long hours could
warn the employer about possible mental disturbances of that particular employee. Before that case,
employers were entitled to presume that an employee is capable of withstanding normal pressures and
that the employer can only be held liable for plain signs of possible mental illness. Some writers,
though, have argued that an employee must show signs of irritability, loss of a sense of humor,
headaches, nausea, etc. (i.e., plain enough for any employer to perceive) for the employer to actually
become concerned about his employee's well-being and that mere complaints are not sufficient to
establish reasonable foresight.

As argued by J. Cooke, a lot of stress-related claims fail. The reason could be that there is still a lack
of clear and consistent guidelines for the plaintiffs. Another explanation for the high incidence of the
failure of such claims might be failures to prove causation between the damage and the breach (the
burden of proof lying with the plaintiff). The latter point was emphasized in the early stages of the
development of this branch of employer's liability in the speech by LJ Hale. A lot of recent cases failed
because they simply did not manage to show a link between the actual duty of care and the damage
incurred. This was seen recently in the case of French v Chief Constable of Sussex . The reason, as
some writers have argued, is the fact that stress is intangible and yet it creates an even more intangible
effect.

On the other hand, another issue that courts had to consider is whether these signs could simply be a
reflection of some personal problems and mislead the employer as in Pakenham- Walsh v Cornell
Residential . In this situation, the court held that since the claimant suffered a nervous breakdown due
to personal reasons, work-related stress was immaterial. So the courts have to be very careful in
deciding whether the psychiatric damage was really caused by work or whether it only had a minor
effect. However, it could be argued that stress at work might have had a significant influence on a
serious nervous breakdown for the claimant and, in that case, courts are ready to award proportionate
damages as in Dickens v O2 . The court would usually allow the defense of contributory negligence on
behalf of the defendant. In the latter case, however, the court held the defendant fully liable.

Further development came in Daw v Intel Corporation LTD. The question raised in that case was about
the situation in which the employer is aware of the vulnerability of his employee and offers him help,
however, the employee rejects said help. Logic would seem to dictate that the employer did try to help
his employee after he became aware of his vulnerability, so no duty of care is owed. However, the court
held a differing view, that the defendant was, indeed, liable. Of course, it could be said that the court
simply relied upon what LJ Hale said in Hatton, where he emphasized the important difference
between what the employer should do versus what he could do and, in this case, the defendant should
have done more.

To sum up, it could be said that the area of employer's liability for emotional stress has developed
significantly over the years, though there is likely to be further development in the future. As A.M.
Drukteinis argues, a lot of claims for emotional stress try to blame work and employers for all the
emotional problems one often goes through though it is not always the case. According to him, it is
often unfair to blame an employer in situations where, due to employees' inefficiency at work, he
suffers from stress. According to him, the legal system still lacks the objectivity and clear and precise
guidelines to follow in these kinds of claims.

As seen from recent case law, this area of law has been developing for more than 10 years now and
still has a lot of room for improvement and interpretation. There are also some meaningful, pertinent
legislative developments as well, ranging from the Mental Health Act 1983 and the Disability
Discrimination Act 1995, which play an important role in claims of work-related stress, to EU legislation
and the Human Rights Act as applied to the U K's legal system. However, unlike other torts, what
occupational stress caused at work seems to lack is the specific criteria that the courts should follow to
simply identify whether there was a breach of a duty or not.