(4.B) Employers’ Liability - Stress at work and Defences PDF

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Monday, 15 March 2021

Lecture 4B Employers’ Liability: Stress at work and Defences ! STRESS AT WORK The duty to provide a safe system of work extends to an employee who suffered stress as a result of his work, Walker v Northumberland County Council [1995] 1 All ER 737.! Guidelines were laid down in Hatton v Sutherland [2002] 2 All ER 1, and approved by the House of Lords in Barber v Somerset County Council [2004] 2 All ER 385: ! •

The basic principles of negligence apply including the usual principles of employers’ liability; !

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The critical question for the court to answer is whether the type of harm suffered was foreseeable and this depends on what the reasonable employer knew or ought reasonably to have known;!

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An employer can assume that an employee can cope with the normal pressures of the work unless the employer has specific knowledge than an employee has a particular problem;!

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There are no inherently stressful occupations - the same test should apply whatever the employment; !

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The employer should take steps to prevent possible harm when the possibility of harm would be obvious to a reasonable employer; !

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The nature of the employment, the employer’s available resources, the counselling and treatment services provided are all relevant in determining whether the employer has taken effective steps to avoid the harm, and in any case the employer is only expected to take steps that will do some good; !

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Employee must show that employer’s breach of duty caused harm, not merely that harm is stress related;!

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Where there is more than one cause of the harm, the employer will only be liable for that portion of damages that relates to the harm actually caused by his breach of duty; and !

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Damages should take account of any pre-existing disorder. !

The threshold in determining whether a duty would arise is whether injury to health through stress at work was reasonably foreseeable. ! In determining whether the threshold has been met the court must consider: ! 1

Monday, 15 March 2021 (1) The nature and extent of the work done by the employee; and ! (2) Signs from the employee !

An employer is entitled to assume than an employee is up to the normal pressures of the job and is entitled to take what the employee says at face value. ! Daw v Intel Corporation (UK) Ltd [2007] EWCA Civ 70 where it was held that the mere provision of counselling services was not sufficient for the employer to avoid liability where the claimant’s problems could only be dealt with by a reduction in her workload. !

The following are examples of cases where the Claimant was successful: ! •

Dickins v O2 Plc [2008] EWCA Civ 1144 - the employer was liable where, having promoted the claimant, they failed to provide the promised training and support causing her to become ill.!

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Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70 - the employer was liable when they failed to take any steps to support the claimant who had previously suffered a breakdown and had since made repeated complaints about the lack of resources to do her job.!

The following are examples of cases where the Claimant was NOT successful: ! •

Sayers v Cambridgeshire CC [2006] EWHC 2029 (QB) - the claimant’s psychiatric injury was not reasonably foreseeable where the tearful episodes had other explanations and the employer was unaware of previous psychiatric issues. !

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Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6 - the claimant’s psychiatric injury was not foreseeable as information she had provided to occupational health at the start of her employment was confidential and nothing in the 9 years of employment to suggest vulnerable to psychiatric injury. !

BREACH OF DUTY AND CAUSATION An employer will be in breach of its duty if it fails to meet the standard of care to be expected of a reasonable employer in its position. ! The required degree of care will vary depending on the individual employee and his/ her characteristics such as they are known to the employer, e.g. Paris v Stepney

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Monday, 15 March 2021 Borough Council [1951] 1 All ER 42, where the employee should have taken into account the fact the employee had only one eye. !

The usual considerations apply once a breach of a duty of care has been established, i.e. novus actus interveniens and remoteness. !

The issue of causation is often raised by employers seeking to defend claims against them. McWilliams v Sir William Arrol & Co. Ltd [1962] 1 WLR 295, where the employer escaped liability for their breach of duty in failing to provide a safety harness as there was strong evidence that the employee rarely wore a harness and it was unlikely he would have worn one on this occasion. !

DEFENCES •

Volenti (consent) generally problematic for employers. !

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Contributory negligence - the care to be taken by an employee will vary according to the circumstances of the work (i.e. consider the ordinary prudent worker in the given situation - Casewell v Duffryn Associated Collieries Ltd [1940] C 152. !

EMPLOYERS’ STATUTORY DUTIES The Health and Safety at Work Act 1947 The presumption in relation to regulations made under it. !

Section 69 of the Enterprise & Regulatory Reform Act 2013 •

Claimants can no longer allege direct causes of action based on breaches of the regulations where accident occurred on or after 1 October 2013.!

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Claims will be for negligence, based on their employer’s alleged breach of the common law duty of care owed by employers. !

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The burden of proof will be on claimants throughout, rather than, as sometimes occurs under the regulations, part of that burden being on the employer to show that it took reasonably practicable steps to achieve an objective. !

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The regulations will remain key for the criminal law, because employers who do not comply with them will be at risk of prosecution by the HSE. !

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For accidents after 1 October 2013, there should still be reference to the regulation within letters of claim and within particulars of claim, but with the argument that breaches of regulations should be seen as being if assistance to interpretation of the extent of the common law duty. Claimants will not be able to argue that where a struct liability duty arises under regulations, that the higher level of duty should be incorporated into the common law duty. !...