Work-related stress claims
By Annette Wilson
Annette Wilson, partner and personal injury specialist at MWR Solicitors looks at recent developments in the law surrounding work-related stress claims.
Such claims are already difficult to assess and few succeed since the courts have in the past tightened up the circumstances in which stress claims will be contemplated.
The most recent case is that of Barber v Somerset County Council, a decision of the House of Lords in April 2004.
Mr Barber was employed as a teacher with the Defendant in a school with a poor reputation and a cash crisis. He regularly worked between 61 and 70 hours a week, often in the evenings and at weekends. After a restructure in September 1995, he was told that to maintain his salary level, he would have to take on yet more duties which, as a conscientious teacher, he did.
By February 1996, Mr Barber was complaining to the deputy head teacher of “work overload”. In March and April 1996, he consulted his GP about stress and at school, he made enquiries about taking early retirement. He was absent from work for three weeks with a sick note for stress and depression in May 1996. At his return-to-work interview with senior members of the teaching staff, he was met with an unsympathetic response to his complaints of work overload. Nothing was done to help his plight.
There were various informal meetings with each member of the management team throughout the summer when again, he complained that the strain of his work was affecting his health. Even after the summer break, he continued to seek help from his GP but after the break, he did not raise the issue again with his employers, no doubt feeling that it would do no good.
By November 1996, Mr Barber was suffering so much from the effects of his stressful job that he lost control and started shaking a pupil. He left the school and did not return. Subsequently, he claimed against the local authority for stress-induced psychiatric injury caused by excessive overwork.
In the County Court, Mr Barber succeeded but the judgment in his favour was overturned by the Court of Appeal. The House of Lords reversed the appeal decision and so ultimately, Mr Barber won his case, but in giving their decision, the law lords set out further guidance as to how such claims should be considered. However, even in these circumstances, the decision was borderline.
The House of Lords held that the test to be applied was the same as in any employer’s liability case: had the employer fallen below the standard properly to be expected of a reasonable and prudent employer taking positive steps for the safety of his workers in the light of what he knew or ought to have known?
The law lords found as follows:
Mr Barber, an experienced and conscientious teacher had been away from work for three weeks in the middle of term time due to what his GP had described as “stress and depression”. This should have sounded a warning to his employers that he was vulnerable to the effects of overwork and occupational stress;
The fact that Mr Barber did not come across more forcefully in his meetings was found to be because he was already suffering from depression;
The duty on the part of the employer to take some action had arisen in June or July 1996 when Mr Barber had seen members of the school’s management team, who should have made some enquiries about his problems to see what they could have done to help;
The fact that all the teachers were stressed and overworked did not mean that there was nothing that could have been done to help Mr Barber. In fact, it was said that even a small reduction in Mr Barber’s workload, coupled with the feeling that the management team was on his side might have made a real difference;
Mr Barber’s condition should have been monitored to allow more drastic action if there was no improvement.
Summary
The case of Barber v Somerset County Council emphasises that each case will turn on its own facts.
The employer is still not required to check on each employee who may be subjected to a high workload individually. As before, it is for the employee to tell the employer as clearly as they can that they are having difficulties in coping if they are feeling overworked or stressed. In practice, the best way of doing this will always be for the employee to write to the employer setting out the situation. This has two advantages. Firstly, a letter is much more difficult to ignore than a verbal complaint, and secondly, it is often much easier for the employee to voice the problems in writing rather than face-to-face, given their likely psychological condition.
As in all occupations, there remains a statutory duty upon an employer to carry out risk assessments for individual jobs where circumstances change. In the case of Mr Barber, this should have been done in September 1995 after the restructure.
The employee’s complaints should be investigated and specific steps to help should be considered by the employer. Once the employer knows that an employee is at risk of suffering injury from workplace stress, they are under a duty to do something about it. This duty will continue until reasonable action is taken to help the employee. Monitoring the employee is mandatory.
A management culture that is sympathetic to employees suffering from occupational stress and “on their side” in tackling it may make a real difference to the outcome. A claim is highly unlikely to succeed where such consideration has been given by the employer and attempts made to help the employee who is suffering.
Employers cannot simply ignore complaints of workplace stress. They must now take some action, otherwise, like Somerset County Council, they could be held liable for the resultant psychiatric injuries.
The case of Barber, like many other workplace stress cases, was borderline. No stress claim is a guaranteed success and most are extremely hard-fought. For the vulnerable and stressed employee, taking on their employers in a stress claim usually only serves to increase their stress levels further.
As a final word of advice, good documentary evidence is invaluable. The more diary entries and letters of complaint to the employer there are, the higher the prospects of success.
