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UK Employment Appeal Tribunal (EAT) Judgements
Case Nos: B3/2000/3074; B3/2001/0171
Neutral Citation Number:  EWCA Civ 76
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Trigger
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 5th February 2002
B e f o r e :
LORD JUSTICE BROOKE
LADY JUSTICE HALE
B3/2000/3074TERENCE SUTHERLAND (Chairman of the Governors of St Thomas Becket RC High School) and PENELOPE HATTON Defendant/Appellant Claimant/ Respondent
Andrew Collender QC and Stephen Archer(instructed by Rollingsons for the Defendant/Appellants)
B3/2001/0717Exeter County Court HH Judge Roach
BAKER REFRACTORIES LTD
EDWARD BISHOP Defendant/ Appellant
Robert P Glancy QC & Christopher Goddard (instructed by Graham Clayton for the Claimant/Respondent)
Andrew Hogarth (instructed by Veitch Penny for the Defendant/Appellant)
Ralph Lewis QC (instructed by Simpson & Co for the Defendant/Appellants)
Mark Anderson (instructed by Martineau Johnson for the Claimant/Respondent)
Robert F Owen QC (instructed by Whitfield Hallam Goodall for the Defendant/Appellants)
Howard Elgot (instructed by Morrish & Co for the Claimant/Respondent)
(This summary forms no part of the judgment)
These four appeals, from different county courts, were all heard together. In each case a circuit judge awarded damages for negligence against the claimants' employers after the claimant had had to stop working for them owing to stress-induced psychiatric illness. Two of the claimants were teachers in comprehensive schools, the third was an administrative assistant at a local authority training centre, and the fourth was a raw materials operative at a factory.
The Court of Appeal allowed the employers' appeals in three of these cases (Hatton, Barber and Bishop). In the fourth (Jones) it dismissed the employers' appeal "not without some hesitation". The main judgment contains an analysis of the nature of the legal duty imposed on employers in cases of this kind (paras 19-22), the circumstances in which a court may find that it was reasonably foreseeable to an employer that his employee might suffer psychiatric illness through stress at work (paras 23-31), and the circumstances in which a court may find an employer in breach of his duty (paras 32-34). This part of the judgment also contains the court's general observations on causation (para 35) and apportionment and quantification (paras 36-42).
In paragraph 43 of the judgment the Court of Appeal sets out 15 practical propositions for the guidance of courts concerned with this type of claim in future.
The court then applies these principles of law briefly to the four appeals (paras 44-73). A much fuller factual analysis of the four cases is contained in the Appendix.
Part Para No
1 Introduction 1
2 Background considerations
Psychiatric ill-health 3
Occupational stress 7
Differences from other work-related harm 11
3 The Law
Breach of duty 32
Apportionment and quantification 36
4 Summary 43
5 Mrs Hatton 44
6 Mr Barber 51
7 Mrs Jones 60
8 Mr Bishop 68
9 Conclusion 74
A Mrs Hatton
1. Introduction 75
2. History prior to 1992
(i) The judge's findings 78
(ii) Other matters not recorded by the judge 79
3. September 1992 - July 1993
(i) The judge's findings 80
(ii) Other matters not recorded by the judge 82
4. September 1993 - July 1994
(i) The judge's findings 87
(ii) Other matters not recorded by the judge 89
(iii) The expert evidence 92
5. September 1994 - July 1995
(i) The judge's findings 96
(ii) Other matters not recorded by he judge 99
6. September 1995 - October 1995
(i) The judge's findings 100
(ii) Other matters not recorded by the judge 102
7. The employers obligations
(i) The judge's findings 104
(ii) Other matters not recorded by the judge 110
8. The respondent's notice 128
9. Our conclusion on liability 130
10. Damages 132
B Mr Barber
1. Introduction 139
2. The judge's findings 140
3. The respondent's notice 151
4. Other background evidence 152
5. The evidence about Mr Barber's health 157
6. Liability: our conclusions 164
7. Damages 166
C Mrs Jones 175
1. Facts 176
2. The judge's findings 194
3. The arguments on appeal 200
4. Conclusion 210
D Mr Bishop 211
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Lady Justice Hale:
These four appeals are related only by their subject matter. In each a defendant employer appeals against a finding of liability for an employee's psychiatric illness caused by stress at work. Two of the respondent claimants were teachers in public sector comprehensive schools; another was an administrative assistant at a local authority training centre; the fourth was a raw materials operative in a factory. There is broad agreement as to the applicable principles of law. But there are difficulties in applying the principles developed in the context of industrial accidents to these very different circumstances. Hearing four very different cases together has also cast valuable light upon how those difficulties might be resolved in individual cases.
This judgment of the court, to which we have all contributed, is arranged as follows. First we consider some relevant background considerations; then the legal principles and how these are to be applied in this class of case; and we conclude with a summary of the questions to be asked in determining individual cases. Then we summarise the facts and our conclusions in each of the four cases under appeal. The details of each of these cases are contained in the Appendix, which also contains an analysis of issues relating to damages which arose in two of the appeals.
2. Background considerations
This type of case has been described as the 'next growth area' in claims for psychiatric illness: see NJ Mullany, "Fear for the Future: Liability for Infliction of Psychiatric Disorder" in NJ Mullany (ed), Torts in the Nineties (1997), p 107. This growth is due to developing understanding in two distinct but inter-related areas of knowledge.
The first is of psychiatric illness generally. The Law Commission, in their Consultation Paper on Liability for Psychiatric Illness (LCCP No 137, 1995), commented at para 1.9:
"We are aware from our preliminary consultations that there are strongly held views on this topic. On the one hand, there are those who are sceptical about the award of damages for psychiatric illness. They argue that such illness can easily be faked; that, in any event, those who are suffering should be able to 'pull themselves together'; and that, even if they cannot do so, there is no good reason why defendants and, through them, those who pay insurance premiums should pay for their inability to do so. . . . On the other hand, medical and legal experts working in the field, who are the people who most commonly encounter those complaining of psychiatric illness, have impressed upon us how life-shattering psychiatric illness can be and how, in many instances, it can be more debilitating than physical injuries."
The latter we entirely accept. But although there have been great advances in understanding of the nature and causes of psychiatric ill-health, there are still important differences between physical and mental disorders.
(1) The dividing line between a normal but unpleasant state of mind or emotion and a recognised psychiatric illness or disorder is not easy to draw. Psychiatric textbooks tell us that with a physical disease or disability, the doctor can presuppose a perfect or 'normal' state of bodily health and then point to the ways in which his patient's condition falls short of this. There is probably no such thing as a state of perfect mental health. The doctor has instead to presuppose some average standard of functioning and then assess whether his patient's condition falls far enough short of that to be considered a disorder. However, there is now a considerable degree of international agreement on the classification of mental disorders and their diagnostic criteria, the two most commonly used tools being the most recent American Diagnostic and Statistical Manual of Mental Disorder, the DSM-IV (1994) and the World Health Organisation's ICD-10 Classification of Mental and Behavioural Disorders (1992).
(2) While some of the major mental illnesses have a known or strongly suspected organic origin, this is not the case with many of the most common disorders. Their causes will often be complex and depend upon the interaction between the patient's personality and a number of factors in the patient's life. It is not easy to predict who will fall victim, how, why or when.
(3) For the same reason, treatment is often not straightforward or its outcome predictable: while some conditions may respond comparatively quickly and easily to appropriate medication others may only respond, if at all, to prolonged and complicated 'talking treatments' or behavioural therapy. There are strong divergences of views amongst psychiatrists on these issues.
In their report on Liability for Psychiatric Illness (Law Com No 249, 1998) at para 1.2, the Law Commission referred to the divergence of academic views on the approach the law should take:
"At one end of the scale are those who argue that the same principles that apply to liability for physical injury should be applied to liability for psychiatric illness, and there is no legitimate reason to impose special restrictions in respect of claims for the latter [most forcefully by NJ Mullany and PR Handford in Tort Liability for Psychiatric Damage, 1993]. At the other extreme are those who argue that liability for psychiatric illness should be abandoned altogether. They say that the arbitrary rules which are required to control potential liability are so artificial that they bring the law into disrepute [cogently expressed by Dr J Stapleton, 'In Restraint of Tort', in P Birks (ed), The Frontiers of Liability, 1994]."
Both the law and the Law Commission have followed a middle course, in some cases treating a recognised psychiatric illness as no different in principle from a physical injury or illness, while in others imposing additional 'control mechanisms' so that liability does not extend too far.
The second area of developing understanding is of the nature and extent of occupational stress. We have been referred to three particularly helpful documents. The first is the report of a working party of the Health Education Authority, Stress in the public sector - Nurses, police, social workers and teachers (1988). This discusses the 'Meaning of Stress' in appendix 1:
". . . as with many words in a living language, the word 'stress' has acquired a vague, catch-all meaning, used by different people to mean different things. It is used to describe both physical and mental conditions, and the pressures which cause those conditions. It is also used to describe stress which is beneficial and harmful both in its sources and in its effects."
Hence the definition of stress adopted in that report was 'an excess of demands upon an individual in excess of their ability to cope'. The report confirmed that the four occupations discussed had much in common in this respect.
Second is the report of the Education Service Advisory Committee of the Health and Safety Commission, Managing occupational stress: a guide for managers and teachers in the schools sector (1990). This adopted a similar definition: ' . . . stress is a process that can occur when there is an unresolved mismatch between the perceived pressures of the work situation and an individual's ability to cope.' It confirmed, if confirmation were needed, that teaching can be a stressful profession. It is also a profession which has undergone profound changes in recent years.
The third is a general booklet of guidance from the Health and Safety Executive, Stress at work (1995). This is particularly helpful in distinguishing clearly between pressure, stress, and the physical or psychiatric consequences (p 2):
"There is no such thing as a pressure free job. Every job brings its own set of tasks, responsibilities and day-to-day problems, and the pressures and demands these place on us are an unavoidable part of working life. We are, after all, paid to work and to work hard, and to accept the reasonable pressures which go with that.
Some pressures can, in fact, be a good thing. It is often the tasks and challenges we face at work that provide the structure to our working days, keep us motivated and are the key to a sense of achievement and job satisfaction.
But people's ability to deal with pressure is not limitless. Excessive workplace pressure and the stress to which it can lead can be harmful. They can damage your business's performance and undermine the health of your workforce."
Stress is defined (p 4) as 'the reaction people have to excessive pressures or other types of demand placed upon them. It arises when they worry that they can't cope.' It can involve both physical and behavioural effects, but these 'are usually short-lived and cause no lasting harm. When the pressures recede, there is a quick return to normal.'
"Stress is not therefore the same as ill-health. But in some cases, particularly where pressures are intense and continue for some time, the effect of stress can be more sustained and far more damaging, leading to longer-term psychological problems and physical ill-health."
Two other important messages emerge from these documents. First, and perhaps contrary to popular belief, harmful levels of stress are most likely to occur in situations where people feel powerless or trapped. These are more likely to affect people on the shop floor or at the more junior levels than those who are in a position to shape what they do. Second, stress - in the sense of a perceived mismatch between the pressures of the job and the individual's ability to meet them - is a psychological phenomenon but it can lead to either physical or mental ill-health or both. When considering the issues raised by these four cases, in which the claimants all suffered psychiatric illnesses, it may therefore be important to bear in mind that the same issues might arise had they instead suffered some stress-related physical disorder, such as ulcers, heart disease or hypertension.
Differences from other work-related harm
Mr Hogarth, on behalf of the appellant defendant in the Barber case, has pointed to several differences between this and other kinds of work-related harm, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work. These are in addition to the general differences between physical and psychiatric disorders discussed earlier.
(1) The most significant relates to who knows what. The employer is or should be aware of what is going on in his own factory, school or office. He is much less aware of what is going on in his employees' minds or in their lives outside work. There are many other people, such as family, friends and colleagues, who are likely to know far more about this than the employer. Indeed, the employee may very well wish to minimise or conceal the true state of affairs from his employer: no-one wants to be thought unable to cope.
(2) The employer is or should be largely in control of the workplace, equipment and physical conditions in which the work is done. He is much less in control of the way in which many of his employees, especially professionals or those who are expected to prioritise their own tasks, choose to do their work and balance the demands of their work and life outside the workplace.
(3) The employer can be expected to take responsibility for keeping the physical risks presented by the workplace to a minimum. But responsibility both for causing and for doing something about its psychological risks may be shared between many people, family, friends and the individual himself, as well as the employer. An individual who recognises that he is experiencing levels of stress which may be harmful to him has to make some decisions about how to respond to this. The employer's room for manoeuvre may in some cases be limited. At the extreme, his only option may be to dismiss the employee who cannot cope with the job.
There are some jobs which are intrinsically physically dangerous: the most obvious examples are the armed forces, fire-fighting and the police. The employee agrees to run the inevitable risks of the job, although not those which are the result of his employers' negligence. Psychological pressures are inevitable in all jobs, although greater in some than in others. But it is, as the documents quoted show, rather more difficult to identify which jobs are intrinsically so stressful that physical or psychological harm is to be expected more often than in other jobs. Some people thrive on pressure and are so confident of their abilities to cope that they rarely if ever experience stress even in jobs which many would find extremely stressful. Others experience harmful levels of stress in jobs which many would not regard as stressful at all.
When imposing duties and setting standards, the law tries to strike a balance which is reasonable to both sides. Here there are weighty considerations on each side. It is in everyone's interests that management should be encouraged to recognise the existence and causes of occupational stress and take sensible steps to minimise it within their organisation. It is in the interest of the individual employees who may suffer harm if their employers do not. It is in the interest of the particular enterprise which may lose efficiency and workers if it does not. It is in the public interest that public services should not suffer or public money be wasted. Concern about this issue arose during a period of great upheaval in the workforce, and in many large organisations, bringing changes in management ethos, instability and insecurity. The documents we have seen all aim to encourage management to take the issue of occupational stress seriously.
The law of tort has an important function in setting standards for employers as well as for drivers, manufacturers, health care professionals and many others whose carelessness may cause harm. But if the standard of care expected of employers is set too high, or the threshold of liability too low, there may also be unforeseen and unwelcome effects upon the employment market. In particular, employers may be even more reluctant than they already are to take on people with a significant psychiatric history or an acknowledged vulnerability to stress-related disorders. If employers are expected to make searching inquiries of employees who have been off sick, then more employees may be vulnerable to dismissal or demotion on ill-health grounds. If particular employments are singled out as ones in which special care is needed, then other benefits which are available to everyone in those employments, such as longer holidays, better pensions or earlier retirement, may be under threat.
Some things are no-one's fault. No-one can blame an employee who tries to soldier on despite his own desperate fears that he cannot cope, perhaps especially where those fears are groundless. No-one can blame an employee for being reluctant to give clear warnings to his employer of the stress he is feeling. His very job, let alone his credibility or hopes of promotion, may be at risk. Few would blame an employee for continuing or returning to work despite the warnings of his doctor that he should give it up. There are many reasons why the job may be precious to him. On the other hand it may be difficult in those circumstances to blame the employer for failing to recognise the problem and what might be done to solve it.
There is an argument that stress is so prevalent in some employments, of which teaching is one, and employees so reluctant to disclose it, that all employers should have in place systems to detect it and prevent its developing into actual harm. As the above discussion shows, this raises some difficult issues of policy and practice which are unsuitable for resolution in individual cases before the courts. If knowledge advances to such an extent as to justify the imposition of obligations upon some or all employers to take particular steps to protect their employees from stress-related harm, this is better done by way of regulations imposing specific statutory duties. In the meantime the ordinary law of negligence governs the matter.
However, we do know of schemes now being developed and encouraged which recognise and respond to the peculiar problems presented both to employees and employers. The key is to offer help on a completely confidential basis. The employee can then be encouraged to recognise the signs and seek that help without fearing its effects upon his job or prospects; the employer need not make intrusive inquiries or over-react to such problems as he does detect; responsibility for accessing the service can be left with the people who are best equipped to know what the problems are, the employee, his family and friends; and if reasonable help is offered either directly or through referral to other services, then all that reasonably could be done has been done. Obviously, not all employers have the resources to put such systems in place, but an employer who does have a system along those lines is unlikely to be found in breach of his duty of care towards his employees.
3. The law
Several times while hearing these appeals we were invited to go back to first principles. Liability in negligence depends upon three inter-related requirements: the existence of a duty to take care; a failure to take the care which can reasonably be expected in the circumstances; and damage suffered as a result of that failure. These elements do not exist in separate compartments: the existence of the duty, for example, depends upon the type of harm suffered. Foreseeability of what might happen if care is not taken is relevant at each stage of the enquiry. Nevertheless, the traditional elements are always a useful tool of analysis, both in general and in particular cases.
The existence of a duty of care can be taken for granted. All employers have a duty to take reasonable care for the safety of their employees: to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working: see Wilsons & Clyde Coal Co Ltd v English  AC 57. However, where psychiatric harm is suffered, the law distinguishes between 'primary' and 'secondary' victims. A primary victim is usually someone within the zone of foreseeable physical harm should the defendant fail to take reasonable care: see Page v Smith  AC 155. A secondary victim is usually someone outside that zone: typically such a victim foreseeably suffers psychiatric harm through seeing, hearing or learning of physical harm tortiously inflicted upon others. There are additional control mechanisms to keep liability towards such people strictly within bounds: see Alcock v Chief Constable of South Yorkshire Police  1 AC 310. In Frost v Chief Constable of South Yorkshire Police  2 AC 455, the House of Lords applied that distinction to police officers (and others) who were not themselves within the zone of physical danger caused by the defendant's negligence, but had to deal with the consequences of catastrophic harm to others in the course of their duties. Lord Steyn observed, at pp 497G to 498A, that
". . . the rules to be applied when an employee brings an action against his employer for harm suffered at his workplace are the rules of the law of tort. One is therefore thrown back to the ordinary rules of the law of tort which contain restrictions on the recovery of compensation for psychiatric harm. . . . The duty of an employer to safeguard his employees from harm could also be formulated in contract . . . . But such a term could not be wider than the duty imposed by the law of tort."
Taken to its logical conclusion this would apply the same distinction between those inside and those outside the zone of foreseeable risk of physical harm to the employer's general duty of care to his employees.
We have not been invited to go down that road, no doubt because it is not open to us. In Petch v Commissioners of Customs and Excise  ICR 789, CA, it was accepted that the ordinary principles of employers' liability applied to a claim for psychiatric illness arising from employment, although the claim failed. In the landmark case of Walker v Northumberland County Council  1 All ER 737, Colman J applied those same principles in upholding the claim. Both have recently been cited with approval in this Court in Garrett v London Borough of Camden  EWCA Civ 395. Also in Frost, Lord Hoffman stated, at p 504F, that
"The control mechanisms were plainly never intended to apply to all cases of psychiatric injury. They contemplate that the injury has been caused in consequence of death or injury suffered (or apprehended to have been suffered or as likely to be suffered) by someone else."
As to Walker, he commented, at p 506A, that:
"the employee . . . was in no sense a secondary victim. His mental breakdown was caused by the strain of doing the work which his employer had required him to do."
In summary, therefore, claims for psychiatric injury fall into four different categories:
(1) tortious claims by primary victims: usually those within the foreseeable scope of physical injury, for example, the road accident victim in Page v Smith  AC 155; some primary victims may not be at risk of physical harm, but at risk of foreseeable psychiatric harm because the circumstances are akin to those of primary victims in contract (see (3) below);
(2) tortious claims by secondary victims: those outside that zone who suffer as a result of harm to others, for example, the witnesses of the Hillsborough disaster in Alcock v Chief Constable of South Yorkshire Police  1 AC 310;
(3) contractual claims by primary victims: where the harm is the reasonably foreseeable product of specific breaches of a contractual duty of care towards a victim whose identity is known in advance, for example, the solicitors' clients in Cook v Swinfen  1 WLR 457, CA, McLoughlin v Grovers  EWCA Civ 1743, or the employees in Petch v Commissioners of Customs and Excise  ICR 789, Walker v Northumberland County Council  1 All ER 737, Garrett v London Borough of Camden  EWCA Civ 395, and in all the cases before us;
(4) contractual claims by secondary victims: where the harm is suffered as a result of harm to others, in the same way as secondary victims in tort, but there is also a contractual relationship with the defendant, as with the police officers in Frost v Chief Constable of South Yorkshire Police  2 AC 455.
There are, therefore, no special control mechanisms applying to claims for psychiatric (or physical) injury or illness arising from the stress of doing the work which the employee is required to do. But these claims do require particular care in determination, because they give rise to some difficult issues of foreseeability and causation and, we would add, identifying a relevant breach of duty. As Simon Brown LJ pithily put it in Garrett, at para 63:
"Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability." (Emphasis supplied)
To say that the employer has a duty of care to his employee does not tell us what he has to do (or refrain from doing) in any particular case. The issue in most if not all of these cases is whether the employer should have taken positive steps to safeguard the employee from harm: his sins are those of omission rather than commission. Mr RF Owen QC, for the appellant defendant in the Bishop case, saw this as a question of defining the duty; Mr Ralph Lewis QC, for the appellant defendant in the Jones case, saw it as a question of setting the standard of care in order to decide whether it had been broken. Whichever is the correct analysis, the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. The question is not whether psychiatric injury is foreseeable in a person of 'ordinary fortitude'. The employer's duty is owed to each individual employee, not to some as yet unidentified outsider: see Paris v Stepney Borough Council  AC 367. The employer knows who his employee is. It may be that he knows, as in Paris, or ought to know, of a particular vulnerability; but he may not. Because of the very nature of psychiatric disorder, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury. Shylock could not say of a mental disorder, 'If you prick us, do we not bleed?' But it may be easier to foresee in a known individual than it is in the population at large. The principle is the same as in other cases where there is a contractual duty of care, such as solicitors' negligence: see Cook v Swinfen  1 WLR 457; McLoughlin v Grovers  EWCA Civ 1743.
However, are there some occupations which are so intrinsically stressful that resulting physical or psychological harm is always foreseeable? Mr Lewis appeared to accept that this was so: he gave the examples of traffic police officers who regularly deal with gruesome accidents or child protection officers who regularly investigate unthinkable allegations of child abuse. Some warrant for this might be drawn from the way in which Dillon LJ formulated the foreseeability test in Petch, at pp 796H to 797A:
". . . . unless senior management in the defendant's department were aware or ought to have been aware that the plaintiff was showing signs of impending breakdown, or were aware or ought to have been aware that his workload carried a real risk that he would have a breakdown, then the defendant were not negligent in failing to avert the breakdown . . . "
Later, at p 798, he referred to the same two-pronged test:
". . . but Mr Bamfield had no knowledge of any sign whatsoever of impending danger, nor was he bound to regard the plaintiff's workload, so eagerly accepted, as per se dangerous."
These observations were made in the context of a particular employee in a particular high grade civil service post. They were not made in the context of such posts as a whole. The notion that some occupations are in themselves dangerous to mental health is not borne out by the literature to which we have already referred: it is not the job but the interaction between the individual and the job which causes the harm. Stress is a subjective concept: the individual's perception that the pressures placed upon him are greater than he may be able to meet. Adverse reactions to stress are equally individual, ranging from minor physical symptoms to major mental illness.
All of this points to there being a single test: whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components: (1) an injury to health; which (2) is attributable to stress at work. The answer to the foreseeability question will therefore depend upon the inter-relationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him. As was said in McLoughlin v Grovers  EWCA Civ 1743, expert evidence may be helpful although it can never be determinative of what a reasonable employer should have foreseen. A number of factors are likely to be relevant.
These include the nature and extent of the work being done by the employee. Employers should be more alert to picking up signs from an employee who is being over-worked in an intellectually or emotionally demanding job than from an employee whose workload is no more than normal for the job or whose job is not particularly demanding for him or her. It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable. Also relevant is whether there are signs that others doing the same work are under harmful levels of stress. There may be others who have already suffered injury to their health arising from their work. Or there may be an abnormal level of sickness and absence amongst others at the same grade or in the same department. But if there is no evidence of this, then the focus must turn to the individual, as Colman J put it in Walker, at p 752e:
"Accordingly, the question is whether it ought to have been foreseen that Mr Walker was exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy workload."
More important are the signs from the employee himself. Here again, it is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health. Walker is an obvious illustration: Mr Walker was a highly conscientious and seriously overworked manager of a social work area office with a heavy and emotionally demanding case load of child abuse cases. Yet although he complained and asked for help and for extra leave, the judge held that his first mental breakdown was not foreseeable. There was, however, liability when he returned to work with a promise of extra help which did not materialise and experienced a second breakdown only a few months later. If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental or physical health, then the employer will have to think what can be done about it.
Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee's work or from complaints made about it by the employee or from warnings given by the employee or others around him.
But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent he is bound to probe further into what he is told? Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive enquiries. Generally he is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee's permission to obtain further information from his medical advisers. Otherwise he would risk unacceptable invasions of his employee's privacy.
It was argued that the employer is entitled to take the expiry of a GP's certificate as implicitly suggesting that the employee is now fit to return to work and even that he is no longer at risk of suffering the same sort of problem again. This cannot be right. A GP's certificate is limited in time but many disorders are not self-limiting and may linger on for some considerable time. Yet an employee who is anxious to return to work, for whatever reason, may not go back to his GP for a further certificate when the current one runs out. Even if the employee is currently fit for work, the earlier time-limited certificate carries no implication that the same or a similar condition will not recur. The point is a rather different one: an employee who returns to work after a period of sickness without making further disclosure or explanation to his employer is usually implying that he believes himself fit to return to the work which he was doing before. The employer is usually entitled to take that at face value unless he has other good reasons to think to the contrary: see McIntyre v Filtrona Ltd, Court of Appeal, 12 March 1996.
These then are the questions and the possible indications that harm was foreseeable in a particular case. But how strong should those indications be before the employer has a duty to act? Mr Hogarth argued that only 'clear and unequivocal' signs of an impending breakdown should suffice. That may be putting it too high. But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it.
Breach of duty
What then is it reasonable to expect the employer to do? His duty is to take reasonable care. What is reasonable depends, as we all know, upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk: see the oft-quoted summary of Swanwick J in Stokes v Guest, Keen Nettlefold (Nuts and Bolts) Ltd  1 WLR 1776, at p 1783D-E.
It is essential, therefore, once the risk of harm to health from stresses in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that that breach of duty caused the harm). But in every case it is necessary to consider what the employer not only could but should have done. We are not here concerned with such comparatively simple things as gloves, goggles, earmuffs or non-slip flooring. Many steps might be suggested: giving the employee a sabbatical; transferring him to other work; redistributing the work; giving him some extra help for a while; arranging treatment or counselling; providing buddying or mentoring schemes to encourage confidence; and much more. But in all of these suggestions it will be necessary to consider how reasonable it is to expect the employer to do this, either in general or in particular: the size and scope of its operation will be relevant to this, as will its resources, whether in the public or private sector, and the other demands placed upon it. Among those other demands are the interests of other employees in the workplace. It may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others. As we have already said, an employer who tries to balance all these interests by offering confidential help to employees who fear that they may be suffering harmful levels of stress is unlikely to be found in breach of duty: except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear.
Moreover, the employer can only reasonably be expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employer's own good. As Devlin LJ put it in Withers v Perry Chain Co Ltd  1 WLR 1314, at p 1320,
"The relationship between employer and employee is not that of schoolmaster and pupil. . . . The employee is free to decide for herself what risks she will run . . . if the common law were otherwise it would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him."
Taken to its logical conclusion, of course, this would justify employers in perpetuating the most unsafe practices (not alleged in that case) on the basis that the employee can always leave. But we are not here concerned with physical dangers: we have already rejected the concept of an unsafe occupation for this purpose. If there is no alternative solution, it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable.
Having shown a breach of duty, it is still necessary to show that the particular breach of duty found caused the harm. It is not enough to show that occupational stress caused the harm. Where there are several different possible causes, as will often be the case with stress related illness of any kind, the claimant may have difficulty proving that the employer's fault was one of them: see Wilsher v Essex Area Health Authority  AC 1074. This will be a particular problem if, as in Garrett, the main cause was a vulnerable personality which the employer knew nothing about. However, the employee does not have to show that the breach of duty was the whole cause of his ill-health: it is enough to show that it made a material contribution: see Bonnington Castings v Wardlaw  AC 613.
Apportionment and quantification
Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible: see eg Thompson v Smiths Ship Repairers (North Shields) Ltd  QB 405; Holtby v Brigham & Cowan (Hull) Ltd  PIQR Q293; Rahman v Arearose Ltd  QB 351. Thompson and Holtby concerned respectively deafness and asbestosis developed over a long period of exposure; not only were different employers involved but in Thompson some of the exposure by the same employer was tortious and some was not. Apportionment was possible because the deterioration over particular periods of time could be measured, albeit in a somewhat rough and ready fashion.
It is different if the harm is truly indivisible: a tortfeasor who has made a material contribution is liable for the whole, although he may be able to seek contribution from other joint or concurrent tortfeasors who have also contributed to the injury. In Rahman, Laws LJ quoted the following illuminating discussion from Prosser & Keeton on Torts, 5th ed (1984) pp 345-346:
"If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it. If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effect of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule . . . If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries . . . There will be obvious difficulties of proof as to the apportionment of certain elements of damages, such as physical and mental suffering and medical expenses, but such difficulties are not insuperable, and it is better to attempt some rough division than to hold one defendant [liable] for the wound inflicted by the other. On the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff's rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff's barn."
In Bonnington Castings v Wardlaw  AC 613, the employee was exposed to harmful dust, all of it at work, but some of it in breach of duty and some not: the employer was held liable for the whole of the damage caused by the combination of the 'guilty' and 'innocent' dust. The question of apportionment was not argued. The problem there, as in McGhee v National Coal Board  1 WLR 1, HL, was whether the claimant could prove causation at all, given the possible contribution of both 'guilty' and 'innocent' dust to his illness.
As Stuart Smith LJ commented in Holtby, at p Q300,
"[The claimant] will be entitled to succeed if he can prove that the defendants' tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution. However, if the point is never raised or argued by the defendant, the claimant will succeed in full, as in Bonnington and McGhee."
Clarke LJ went further and placed at least the evidential burden of establishing the case for apportionment upon the defendant, at p Q305:
"It seems to me that once the claimant has shown that the defendant's breach of duty has made a material contribution to his disease, justice requires that he should be entitled to recover in full from those defendants unless they show the extent to which some other factor, whether it be 'innocent' dust or 'tortious' dust caused by others, also contributed."
But he acknowledged that these cases should not be determined by the burden of proof: assessments of this kind are 'essentially jury questions which have to be determined on a broad basis'.
Hence the learned editors of Clerk & Lindsell on Torts, 18th edition (2000), at para 2-21, state that 'Where it is possible to identify the extent of the contribution that the defendant's wrong made to the claimant's damage, then the defendant is liable only to that extent, and no more'. This may raise some difficult factual questions. Calascione v Dixon (1993) 19 BMLR 97 is an example of apportionment between different causes, one the fault of the defendant, the other not: the claimant suffered post traumatic stress disorder as a result of seeing the aftermath of the accident in which her son was killed, but her normal grief reaction had become abnormal as a result of later events. In Vernon v Bosley (No 1)  1 All ER 577, the majority in this court held that the whole of the claimant's psychiatric injury was the result of the accident in which his two daughters died, although Stuart Smith LJ dissented on the ground that it had not been shown that it was caused by his witnessing the unsuccessful attempts to rescue them, that is by the breach of the defendant's duty towards him. These were both, of course, secondary victims. Rahman is an example of apportionment of the psychiatric injury suffered by a primary victim between different tortfeasors. Neither tort caused the whole injury, some was caused mainly by one, some mainly by the other, and some by their combined effect. Neither tortfeasor would have been held liable for the whole.
Hence if it is established that the constellation of symptoms suffered by the claimant stems from a number of different extrinsic causes then in our view a sensible attempt should be made to apportion liability accordingly. There is no reason to distinguish these conditions from the chronological development of industrial diseases or disabilities. The analogy with the polluted stream is closer than the analogy with the single fire. Nor is there anything in Bonnington Castings v Wardlaw  AC 613 or McGhee v National Coal Board  1 WLR 1 requiring a different approach.
Where the tortfeasor's breach of duty has exacerbated a pre-existing disorder or accelerated the effect of pre-existing vulnerability, the award of general damages for pain, suffering and loss of amenity will reflect only the exacerbation or acceleration. Further, the quantification of damages for financial losses must take some account of contingencies. In this context, one of those contingencies may well be the chance that the claimant would have succumbed to a stress-related disorder in any event. As it happens, all of these principles are exemplified by the decision of Otton J at first instance in Page v Smith  PIQR Q55 (and not appealed by the claimant: see Page v Smith (No 2)  1 WLR 855). He reduced the multiplier for future loss of earnings (as it happens as a teacher) from 10 to 6 to reflect the many factors making it probable that the claimant would not have had a full and unbroken period of employment in any event and the real possibility that his employers would have terminated his employment because of his absences from work.
From the above discussion, the following practical propositions emerge:
(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer's liability apply (para 20).
(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (para 25).
(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (para 29).
(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health (para 24).
(5) Factors likely to be relevant in answering the threshold question include:
(a) The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
(b) Signs from the employee of impending harm to health (paras 27 and 28). Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers (para 29).
(7) 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 do something about it (para 31).
(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (para 32).
(9) The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties (para 33).
(10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (para 34).
(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (paras 17 and 33).
(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job (para 34).
(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (para 33).
(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm (para 35).
(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39).
(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42).
We will now apply these principles to the facts of the four cases before us. For convenience we are including only a brief summary of the individual cases in the main body of this judgment. They are given more extensive treatment in the Appendix.
7. Mrs Jones
Mrs Jones was employed as an administrative assistant at Trainwell, a local authority training centre, from August 1992 until 20 January 1995 when she went off sick with anxiety and depression. She never returned and was made redundant when the centre closed at the end of 1996. The defendant local authority appeal against the order of His Honour Judge Nicholl in the Birmingham County Court on 31 October 2000 awarding her a total of £157,541 damages and interest. The judge's findings and the evidence are discussed at paras 176 to 199 of the Appendix.
Mrs Jones' job was unique, a new post resulting from the consolidation of training activities in one site. The tasks were varied and the deadlines tight. They included submitting monthly claims to the local Training and Enterprise Council on which the whole operation depended. The judge found that she was having to work grossly excessive hours over the 37 per week required by her contract of employment. There was unchallenged evidence that her personnel officer, Mr King, had acknowledged in February 1993 that they knew it was a gamble to expect one person to do the work of two to three.
She complained of over-work to her immediate managers, Mr Papworth and his deputy, from an early stage. She complained to Mr King at head office in February 1993. She also complained to him of unfair treatment and that she had been threatened with non-renewal of her temporary post if she persisted in her complaints of over-work. He said that he would try to get her extra help. Extra help was earmarked for her by Mr Papworth's superior but diverted by Mr Papworth to other tasks. In July 1994, Mrs Jones complained to Mrs York, who had taken over as her personnel officer, in a five page document listing the problems under 'health', 'excessive workload', 'equal opportunities', and 'managerial disagreements'. Once again it was noted that extra help should be provided but none was forthcoming. In November 1994, Mrs Jones invoked the formal grievance procedure, complaining of discrimination in her unsuccessful application for an instructor's job at Trainwell and harassment during her time there which had affected her health. The grievance hearing did not take place until January 1995 when it was adjourned. She went off sick shortly afterwards.
The judge also found that she had been 'harassed' by Mr Papworth. He meant that she had been treated unreasonably in such matters as his reaction to her complaints of over-work, dismissing these with the unfounded suggestion that she had more than enough time to do what was required of her, threatening her with loss of her job if she complained, failing to allocate the extra help provided to her, and completely inappropriate behaviour around the grievance hearing. This was not a case like Mr Barber's where everyone was over-worked and under pressure, but one where the job itself made unreasonable demands upon an employee in a comparatively junior grade, and the management response to her complaints was itself unreasonable.
Mrs Jones did not go off work sick during any of this time. She did not even consult her GP until March 1994, when she consulted him about abdominal problems which he noted might be psychosomatic. Thereafter she suffered from headaches which were not eased by multiple analgesics, although he diagnosed migraine rather than psychiatric illness. There was therefore no specific medical event which might have alerted her employers to the risk of the breakdown which occurred in January 1995.
However, the employers did know that excessive demands were being placed upon Mrs Jones. They also knew that she was complaining of unreasonable behaviour by her immediate manager. These were taken sufficiently seriously for extra help to be arranged, not once but twice, but it was not actually provided. She made two written formal complaints, one in July and one in November 1994, that problems at work were causing harm to her health. It was not disputed that they did in fact cause her breakdown in January 1995.
The question, therefore, is not whether they had in fact caused harm to her health before January 1995, but whether it was sufficiently foreseeable that they would do so for it to be a breach of duty for the employers to carry on placing unreasonable demands upon her and not to follow through their own decision that something should be done about it. We have concluded, not without some hesitation, that the evidence before the judge was sufficient to entitle him to reach the conclusion that it was. We are conscious that the council relied mainly on the evidence of Mr Papworth, which the judge did not find impressive. They did not call either Mr King or Mrs York to explain what they had made of Mrs Jones' complaints, and in particular her complaints in 1994 of the adverse effect that these problems were having on her health. Unlike the other cases before us, this was one such as was envisaged by Lord Slynn in Waters v Commissioner of Police of the Metropolis  4 All ER 934, at 938c, where the employer knew that the employee was being badly treated by another employee and could have done something to prevent it.
Once it is concluded that the combination of the way in which she was being treated and her formal complaints about it made injury to her health foreseeable, it is not difficult to identify what might have been done to prevent the injury which in fact occurred. The judge was entitled to conclude that failure to do this caused her breakdown. There was no challenge to the quantification of damages in this case. We have not therefore been able to consider whether any of the matters discussed earlier in this judgment might have led to any modification of the award. Our conclusion on liability should not be taken as any indication of our view on the appropriate measure of damages in this or any other such case.
C. Mrs Jones
Mrs Jones was employed as an administrative assistant at Trainwell, a local authority training centre, from August 1992. On 20 January 1995 she went off sick with anxiety and depression and never returned. She was made redundant on 31 December 1996 when Trainwell was closed. Judgment was entered in her favour for £157,541, made up of £22,500 general damages, together with interest of £1,300, past loss of earnings, medical expenses and travelling expense totalling £32,499, together with interest of £6,422, and future loss of earnings, pension and medical and prescription costs totalling £94,820. The defendants appeal against the judge's factual findings and conclusions that they were in breach of duty towards her; there is no appeal on causation or the quantum of damage.
The claimant was born in 1953. She returned to work aged 35 in 1988. She was employed by Sandwell Metropolitan Borough Council. At first she worked for Sandwell College doing desk top publishing in the mornings and teaching typing, word processing and computing to YTS and unemployed people in the afternoons. In 1991 she had a period of absence from work. She reported to her doctor feeling low and depressed with early morning waking for two months. Her doctor prescribed amitryptilene, an antidepressant. This was acknowledged by the claimant's psychiatric expert at trial to be a significant depressive episode. The claimant sought to deny that there was anything wrong with her at the time but the judge did not accept that. He concluded that it fitted the pattern which both the psychiatrist and psychologist had discerned from her earlier history, that she had a vulnerable personality.
In 1992 the Council decided to amalgamate its youth training activities in one establishment, Trainwell. Mrs Jones applied for an instructor's job there but narrowly missed it. So she then applied successfully for the job of administrative assistant there, hoping to move on to an instructor's post in due course. She began work on 10 August 1992.
The Job Description describes her role as 'to support the co-ordinator/manager in maintaining financial and administrative systems for the operation of Trainwell'. Working hours were 8.30 to 5.00 pm Mondays to Thursdays and 8.30 am to 1.30 pm Fridays. The grade was between 3 and 4. (This meant that her starting salary was around £9,500 increasing to around £11,100). 15 specific responsibilities were listed:
"1. Responsible for the provision of administrative support to the Manager in the day to day operation of Trainwell.
2. To maintain the purchase and sales ledgers for Trainwell and to prepare monthly statements on these ledgers.
3. To prepare claims for grants from the Training and Enterprise Council.
4. To arrange payments for work placement providers.
5. To assist trainees in opening Building Society/Bank Accounts.
6. To provide work experience for trainees in established office procedures.
7. To complete recruitment and termination documentation for trainees.
8. To maintain trainee's records, including holiday and sickness.
9. To check and collate trainee's weekly time sheets.
10. Financial administration including:
invoice work placement providers
preparing sales invoices
processing petty cash income and expenditure.
11. Collation of statistical information on trainees.
12. To attend in-service training sessions and courses as required.
13. To be informed of, observe and actively promote, the Equal Opportunity Policies and practises [sic] of the Council in general and Trainwell in particular.
14. Use of new technology as required.
15. Such other duties as may be appropriate to achieve the objectives of Trainwell's Youth Training Workshop commensurate with the postholder's salary grade, abilities and aptitudes."
The judge found that this was a highly responsible job. She had to do effectively the whole administration for Trainwell. The most important part was the collation of information and submission of monthly claims for funding to the local Training and Enterprise Council (TEC). This was vital to the continued existence of Trainwell and deadlines were strict. The rest of her work was also responsible and had to be done on time. There is no challenge to those findings.
It was also a new job. Trainwell had previously operated from two sites with a full time administrative assistant at each and a senior person responsible to them for the TEC bids and budgets. All three jobs were now being covered by one person. Mrs Bell, who had stayed on for a few weeks to train Mrs Jones in the work, acknowledged that the tasks were varied and the deadlines tight. The post holder would be kept busy but Mrs Bell thought that Mrs Jones could cope with good time management. However when Mrs Jones saw Mr King, her personnel officer, on 5th February 1993 she recorded him as saying that it was a 'calculated gamble to give one person the job of two to three.' Mr King provided a witness statement for the proceedings, together with two sets of notes of the meeting. Mrs Jones, whose husband had accompanied her, also provided a set of notes. Mr King was not however called to give evidence. Hence the judge treated Mrs Jones' evidence of the meeting as unchallenged. There was also no dispute that the work increased in April 1993 with a change to a new computer database.
There was a dispute about how much time Mrs Jones did in fact spend on the job. In paragraph 3 of the Particulars of Claim it was put at rarely less than 48 hours a week, and often as many as 60. In a schedule to the Further Information it had gone up to more than 81 hours a week, with additional help from her husband. This was challenged as incredible and also inconsistent with Mrs Jones' taking on a time consuming college course at the same time. The judge thought it impossible to say precisely what hours she worked; they probably varied from week to week; on some occasions she probably did work the sort of hours suggested; this was not happening all the time but for a sufficient amount of the time to be grossly excessive.
There was no dispute that she complained of being overworked from an early date. The response of her immediate superiors, Trainwell's manager Mr Papworth and his deputy Mrs Sheldon, was unsympathetic. Early in 1993, they did a rough calculation of the time needed for the work, which showed that she only needed 32 hours a week. When she went with her husband to see Mr King in February 1993, he noted her saying that she took work home virtually every night and at weekends and once worked until 1.30 am. Mrs Jones noted that she had said that she was greatly offended by suggestions that she only needed to prioritise, 'as I worked in excess of 13 hours per day and on a regular basis worked Saturdays and Sundays . . .'
Mr King also noted that she complained of constant 'chipping away' about her performance, telling her off for arriving four minutes late after she had worked until 1.30 am, and making 'veiled threats' not to renew her temporary appointment at the end of March 1993. She was also concerned that if her contract were not renewed she would not get a fair reference. She did not feel that she could complain to her line manager, Mr Papworth, as he and his deputy were causing the stress. Mr Papworth had made recent threats concluding that if she ever repeated the contents of their conversation he would deny that it took place. Mrs Jones' notes describe the same incident thus
"Mr Papworth advised me when Mrs Sheldon left the office that he had discussed the situation with Mr Watts [his superior] and they had decided that a reorganisation would take place and two jobs would be created one at scale one and another at scale two and was told that with my work record do you think you would get one of these jobs if you applied. This I took to be a threat to try and silence my opposition to the excessive workload within the admin dept. Mr Papworth stated that if I told anybody about this conversation the he would deny it."
Mr King's conclusion was that 'she is not objecting to her grade or the volume of work, just the "knocks" that she keeps on taking.' She did not want him to do anything at the moment, merely to realise the problems. Mrs Jones' note records that Mr King stated that he would try to get further help. She said that she would like to continue to do the job, would see if help was forthcoming and would not seek further action 'to see if the situation got better'.
Towards the end of that year Mr Watts did try to provide her with some extra help. Claudette Henry was asked to spend a day a week at Trainwell to help her and learn how to do the job. Most of her first day was taken up with Mrs Jones explaining the work. When she returned the next week she was told that she was no longer to assist Mrs Jones but was to do the typing instead.
In June 1994, Mrs Jones asked Mrs York, who had taken over from Mr King as her personnel officer, for a transfer. She prepared a five page document headed 'strictly private and confidential' which she took with her for a discussion with Mrs York on 27 July 1994. This listed the problems under four headings: health, excessive workload, equal opportunities and managerial disagreements. Under 'health', she stated:
"The situation is that I am under continual pressure for which I am now suffering stress related health problems. Many of these problems were related to Dave King in a meeting some 12 months ago."
In fact, the notes of her meeting with Mr King do not record that she made any complaint about her health, although she certainly made complaints about her workload and the other pressures she was under.
Under 'excessive workload', she stated
"Excessive and complex workload with only myself knowing the rules, regulations and technical details of the TEC claim . . . I have on many occasions worked after midnight to formulate claims also on one occasion working with the assistant manager at Trainwell until 7.30 pm on Friday evening, all day Saturday until 7.00 pm and all day Sunday until 5.00 pm Also on numerous occasions working Friday afternoons, all this without remuneration or time off in lieu."
She also complained that she had been told by Mrs Sheldon that the additional help arranged the previous year was still allocated for that purpose but Mr Papworth had denied it. Under 'equal opportunities' she complained that she thought it unlikely that she would be given an equal opportunity to apply for any forthcoming vacant positions even though she was qualified for an instructor's post. Under 'managerial disagreements' she complained that it was hard to discuss these matters within Trainwell because of a 'power struggle' between managers. She was also frequently called upon to mediate between managers and skill instructors. There were 'a lot of tensions and problems' at Trainwell.
Like Mr King, Mrs York did not give evidence, nor was there any witness statement or (it would appear) note from her about the meeting. The outcome was that Mrs York would speak to Mr Watts but without mentioning Mrs Jones by name. On 16 August Mr Watts issued a 'note for further action' which provided for further administrative help for Mrs Jones. That again does not seem to have been forthcoming. Meanwhile Mrs Jones applied for three other jobs which she did not get.
Mrs Jones had not by then consulted her doctor about any work-related problems. Her only visit since starting work at Trainwell was in March 1994 for abdominal problems. She did not mention problems at work, but the doctor did note '?psychosomatic'. She next consulted him on 16 August complaining of headaches not eased by multiple analgesics. Again she did not mention work problems. He diagnosed migraine. She went back to her doctor for further medication on 2nd September. He prescribed ibuprofen.
In September she applied for the job of skills instructor at Trainwell. She was interviewed on 2 November by Mr Papworth, Mrs York and Mrs Pearson. She did not get it. She felt that the odds had been stacked against her. She found out later that Mr Papworth had told one of the instructors that she was not going to get the job because of her accent. (She learned much later that his interview notes recorded the work 'liar' against her denial of being late on occasions.) She also felt at a disadvantage because she had just come back from holiday and was nervous. The judge found that the others also got that impression.
On 23 November 1994 Mrs Jones invoked the formal grievance procedure, complaining that she had been discriminated against when she applied for this position, and also of 'harassment encountered during my 28 months of employment at Trainwell' which had affected her health. There was no complaint about over-work. Mr Papworth went to see her about the grievance and said that he could understand her complaining about the excessive hours but 'what's this about harassment?'.
The hearing of her complaint did not take place until 17 January 1995. Mr Papworth insisted that she took a holiday both to see her union representative to prepare for it and for the hearing itself. At the hearing it became apparent that she was complaining of long hours and over work and Mr Watts disappeared; so the matter was adjourned. Mr Papworth later upbraided her for talking to a sympathetic colleague about what had happened.
On 20 January 1995 Mrs Jones went off sick and never returned. In February 1996 her treating psychiatrist diagnosed 'an acute anxiety state 12 months ago which has developed into a generalised anxiety state with agoraphobia accompanied by mild depression and obsessive compulsive symptoms of which the anxiety symptoms seem the most troublesome'. She was made redundant from the end of 1996 when the Council closed Trainwell down.
The importance of the job she had been doing there was demonstrated by the 'chaos' which ensued after her departure. The documentation went downhill to such an extent that the TEC threatened to claim back amounts they had paid. Mr Papworth's managerial shortcomings eventually resulted in a disciplinary hearing in July and September 1996. Among the findings were a failure to ensure sufficient managerial control of the administrative and financial procedures resulting in the submission of inaccurate claims; and various management deficiencies, including a failure to respond adequately to concerns expressed by staff, resulting in 'an atmosphere of general disquiet, no teamwork, a lack of respect and a demotivated workforce with poor morale': an echo of what Mrs Jones had told Mrs York back in 1994.
2. The judge's findings
The judge found that Mrs Jones was being overworked and that the allegation of harassment against Mr Papworth was made out. He found that the major causes of her breakdown were the excessive hours of work and the harassment she was subjected to. He then considered whether this was foreseeable: specifically he asked himself, 'what would a reasonable employer have foreseen as likely to result from the factors I have described?'
The Council argued that she had taken no time off for depression; her own GP did not diagnose it in August or September 1994; she made no visits to the Occupational Health Department; she made out she was fine when colleagues asked; the Council had no knowledge of her vulnerability; and even her husband did not realise that she was heading for a breakdown.
The judge thought that the reason for that was that she was the type of person who bottled up her feelings, put a brave face on her situation, was determined to cope and not let anyone see that it was getting her down. But the question was not whether they did foresee it but whether they should have done so.
Several factors led him to conclude that they should have done so. First was the importance of the job she was doing, the 'lynchpin on which Trainwell's continued existence hinged'. Second, there was the stress which Mr Papworth and to a lesser extent Mrs Sheldon were imposing upon her. Third, she had alerted Mr King to both of these but could not complain of the excessive hours in case her appointment was not continued. Mr King should have realised that there was a risk of injury to her mental health if things continued as they were. But nothing was done. She then complained to Mrs York, who could have asked her about her health problems or advised her to consult the Occupational Health Department. This was a 'compelling cry for help' and the second clear indication of risk to her health posed by overwork and harassment. This was followed by Mrs Jones' performance at the instructor interview: it should have been obvious to Mrs York that all was not well with Mrs Jones at that time. Finally there were the events surrounding the grievance hearing: she should not have been required to return to work after the hearing had been adjourned, when she was subjected to just the sort of unreasonable behaviour from Mr Papworth which she feared.
It is clear from this summary that the judge was eliding the question of whether injury to her mental health was foreseeable with the question of what a reasonable employer would have done about it. He never expressly asked himself the second question.
He next discussed the medical evidence in more detail. Mr Willmott, the psychologist instructed on behalf of Mrs Jones, considered that there was evidence of stress and depression from at least August 1994 and that stress at work was a major contributory factor in the development of her depressive illness and anxiety. Dr Bond, the psychiatrist instructed on behalf of the council, believed that her condition developed in January 1995, and eventually agreed that there were work-related factors influencing the development of her depression. The judge concluded that the trouble started in 1994 and that if steps had been taken in July 1994, let alone in February 1993, to deal with the causes of her overwork and to stop the harassment she might well have recovered. Those steps were not taken and she did not recover: the chaotic grievance hearing, after which she was required to return to work, and the further mistreatment she then suffered were 'the straw which broke the back of an extremely willing camel'.
3. The arguments on appeal
The appellant council takes issue with the judge's finding that the claimant's mental illness was foreseeable. They rely upon all the points relied upon before the trial judge, outlined at paragraph 195 above. But they also take issue with his findings of fact as to the hours worked by the claimant and the 'harassment' suffered from Mr Papworth.
As to the volume of work, the judge was well aware of the discrepancies in the claimant's case. He was also well aware of the need to treat her evidence with some caution, because he had rejected her account of the earlier episode in 1991. But he noted that the claimant's present account was consistent with the account she said that she had given to Mr King in February 1993. Mr King had acknowledged that it was a gamble to expect one person to do the work of two to three. The judge also noted that no-one had done a proper time and motion study of what the job required. Mrs Bell thought that it was manageable but she was a high flier. All the other observations were that it was too much for one person. Both Mr King and Mrs York had proposed extra help. Mr Papworth himself had acknowledged that he could see what she meant about the excessive hours. Perhaps the best indication was the chaos which ensued when Mrs Jones left.
The issue is not exactly how many hours Mrs Jones actually worked. The judge was entitled to find that she regularly worked way beyond the 37 hours for which she was paid. She was a dedicated and ambitious employee who was anxious to show that she could do the work required even if it took more than the allotted hours. The issue is whether the demands placed upon her were reasonable in all the circumstances. It is not necessarily reasonable to expect so much of an administrative assistant whose pay and status are not those of a professional with an open-ended commitment to getting the job done. The judge was amply justified in reaching the conclusion that Mrs Jones was over-worked.
This is allied to the question of harassment. The judge based his findings on Mr Papworth's general and specific shortcomings as a manager. Again, whether those collectively amount to 'harassment' as it is understood in other contexts is not the point. The point is whether the behaviour towards Mrs Jones was reasonable in all the circumstances. An employee in her position should not be placed in a dilemma where she feels unable to complain about her workload because of threats, not only to her future employment, but also to her future employability. The combination of unreasonable demands and an unreasonable reaction to complaints about those demands justifies a finding of unreasonable conduct even if the epithet 'harassment' is not appropriate.
But that finding does not answer the questions which had to be answered in this case. The judge had first to consider the issue of foreseeability. The defendant had some powerful points to make: in particular, there was no sickness absence during the period in question; there was no complaint of injury to health to Mr King in 1993; the complaint of injury to health in July 1994 was unspecific; had it been further investigated, it would have elicited nothing of any value because the claimant's own doctor had not yet been consulted about, let alone detected any work-related illness; and the claimant's own husband, who was exceptionally involved and supportive, had not anticipated it. It is also argued that the Council had no knowledge of the earlier episode in 1991; but that is less powerful, because she was also working for the Council at the time, albeit in a different post.
The judge did not clearly separate the issues of foreseeability, breach of duty and causation as he should have done. It is impermissible to reason that because a defendant has behaved unreasonably the risk of psychiatric injury should have been foreseen. Equally it is impermissible to reason that because an injury has resulted from stress at work it has resulted from an employer's breach of duty.
However, Mr Anderson is right to argue on behalf of Mrs Jones that unreasonable demands are relevant to the question of foreseeability. Placing unreasonable demands upon an employee and then responding in an unreasonable way to the employee's complaints about those demands are among the factors to be taken into account in deciding whether the employer knew or ought to have known that the pressures of the job were causing occupational stress. Mrs York clearly did know that much. This knowledge was coupled with two express warnings from the employee that this occupational stress was indeed damaging her health. On balance, therefore, and bearing in mind that neither Mr King nor Mrs York gave evidence, the judge was entitled to find that actual damage to her health was foreseeable.
Once that hurdle is crossed, Mr Anderson is also right to argue that it was easy to identify a relevant breach of duty. Senior management knew that there were complaints of overwork which were likely to have some substance but that line management was making it impossible to make an effective complaint. They actually offered help. But because of line management's attitude that help was never effective. If psychiatric harm was the foreseeable result of doing nothing when there were obvious steps which could have been taken it is easier to conclude that there had been a breach of duty. Although the judge does not in terms address the risk/benefit question he was entitled to conclude that there was a breach of duty when it was the employer's own unreasonable demands which were producing a foreseeable risk of harm to the employee's health.
Unlike the others before us, this is the sort of case described by Lord Slynn in Waters v Commissioner of Police of the Metropolis  4 All ER 934, at 938c:
"If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and if they do, that physical or mental harm may be caused to an individual."
The question still arises of whether that breach of duty caused the harm which was suffered. Was the judge entitled to conclude that if something had been done to lighten the claimant's workload and acknowledge the validity of her complaints her eventual breakdown could have been avoided? The underlying vulnerability would still have been there, as would the claimant's basic ambition to become an instructor rather than an administrator. But the judge gave sound reasons for preferring the view of the expert psychologist instructed on behalf of the claimant to that of the expert instructed for the defence, who had not been supplied with all the relevant material.
It must be acknowledged that although the judge gave a long and detailed judgment, it did not address each of the issues in turn in a systematic manner. This was not an easy case and would have benefited from such an approach. Nevertheless, there was evidence before the judge which entitled him to reach the factual conclusions he did, and from those to conclude that the indications of risk to mental health were strong enough for a reasonable employer to think that he should do something about it, not least because senior management did think that there was something they should do. That something was to cease placing unreasonable demands upon the claimant. There was also expert evidence from which the judge was entitled to conclude that it was the failure to take those steps which caused, or at least materially contributed to, the claimant's mental illness. There is no challenge to his assessment of the damages resulting. It was for these reasons, which are set out more succinctly in paragraphs 66 and 67 of our main judgment, that we are dismissing the employers' appeal in Mrs Jones's case.
Tim Field is not a legal professional and regrets he is not able to act as an expert witness. Information is given in good faith. In all matters consult a competent qualified professional.
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