Skip to main content
Skip to navigation

Mail To a Friend E-mail this to a friend

Claims: Occupational stress - The science of stress

Published 13/11/2008

The issue of occupational stress continues to loom large in employers’ liability claims. Employers must remain aware of the need to manage this risk and must be prepared to give urgent attention to employees complaining of stress-related symptoms.

One of the most high profile cases of recent years was Hatton v Sutherland (2002). But if anyone thought that occupational stress claims based upon overwork had gone away since this case then they are wrong. Recent developments show that the courts can always prefer the evidence of the claimant over that of the defendant, which is precisely what happened on 16 October 2008 when the Court of Appeal handed down its decision in the case of Dickins v O2.

The Dickins case

Susan Dickins was awarded damages of £109,754 for injury caused by occupational stress. She had worked as a finance and regulatory manager for O2 and, as part of her duties, she had to prepare material for the external audit carried out by the Office of Telecommunications, the independent regulator. While doing this for the first time she burst into tears and took two days off. On her return, it was agreed that she would not have to deal with the audit again.

Matters moved on and Ms Dickens took up a new role, albeit one that she knew would involve some audit work of a similar nature to that which she had previously found difficult. A colleague who was supposed to help with the audit left, leaving Ms Dickins to cope alone. She spoke to her manager about moving to a less stressful job but he claimed there were no vacancies.

Ms Dickins subsequently asked for a sabbatical, claiming she was concerned that the stress of the job would make her ill. Her manager promised to make enquiries and suggested she contacted the company’s counselling service. During an appraisal, she again told her employer that she was feeling very stressed and that she anticipated her symptoms would lead to her being off. She was referred to the occupational health department but the paperwork submitted went astray and she took time off work due to stress.

The decision

The thrust of the Court of Appeal’s decision was that O2 was in breach of its duty of care for not referring Ms Dickins to its occupational health department quickly enough and for failing to send her home after she had made her condition known. They accepted that her injury was foreseeable based upon her description of her symptoms to her employer.

Although it was not an issue in the appeal itself, the Court of Appeal went on to state that the correct approach to apportionment of damages was not that expressed by Lady Justice Hale in the case of Hatton but rather the views expressed by the Court of Appeal in the case of Bailey v Ministry of Defence (2008).

Following Lady Justice Hale, claimants and their lawyers have been prepared to concede deductions for that part of the psychiatric injury which was caused by non-tortious factors. For example, in the case of Dickens, the claimant’s prior vulnerability and psychiatric history, difficulties with her partner and having had her house flooded. This resulted in a reduction of 50% in her damages.

However, in light of Dickens it is likely that claimants’ representatives will now not be prepared to make such concessions and the issue is likely to trouble the courts once more before certainty is restored.

Managing occupational stress

The Dickins case re-emphasises the need to deal with employees who complain of stress-related symptoms very carefully. To avoid a costly compensation claim and get the employee back to work, managers need to be appropriately trained to know what to do with an employee complaining of stress-related symptoms.

When a complaint is raised, a detailed note should be kept of that complaint and a careful check should be kept on any referral whether to the human resources department or to occupational health.

The Dickins case demonstrates why employees should be removed from stressful situations by either taking them away from that particular job or sending them home. While the latter might appear extreme, it is the simplest way to avoid making the employee’s medical position worse and helping to establish civil liability.

In terms of the referral to the occupational health specialist, it is critical that the appropriate expert is chosen. Simply writing a short letter to the employee’s doctor rarely provides a suitable answer or the help required to move the employee forward. An experienced occupational health doctor should be selected and the letter of instruction should set out both the employee’s and the employer’s side of events.

The implications of the Dickins case in relation to stress claims generally are to reconfirm that claimants can succeed in winning these cases and be awarded substantial damages. It is not a golden rule that one ‘free’ absence is allowed before liability can be established when a second absence occurs.

The case also re-emphasises that in most successful stress claims the reason why the claimant succeeds is due to a failure in applying existing procedures. In this case the claimant was not actually referred to an occupational health doctor although she was told that she would be.

The major impact of Dickens however relates to the issue of apportionment. The decision undermines the established procedure in stress claims whereby deductions are made from the compensation award where it can be shown that there were multiple causes that contributed to the psychiatric injury. Pending any appeal in relation to Dickins and Bailey, it is essential that psychiatrists involved in the civil claim are asked to express their opinion as to the precise percentage involvement of the competing causes that may have caused the claimant stress.

If defendants do that then they will be in a better position to achieve a reduction in any damages found to be due. If they do not, then they may find themselves losing a saving of more than £100,000 as was achieved in this case.

- Roddy Macleod is a partner at Weightmans.

This article has been reprinted with permission of the Claims Standards Council

Related articles