Stress: six appeals heard together
The Court of Appeal made a few general points when considering these, notably:
(i) The guidelines in Hatton (CA), as noted in Barber (HL) were just useful guidance and not to be treated as statute.
(ii) In particular there were some situations, such as trauma cases, where Hatton’s general application may not be of specific use to the facts (see the case of Melville and, to a lesser extent, Hartman below).
(iii) Each case gives detailed consideration to the uses of occupational health and counselling services at work and (in my opinion) it can no longer be glibly said that provision of these services creates a water-tight defence , if guideline 11 by LJ Hale in Hatton was ever interpreted to mean this.
The order below is not the judgement order but starts with the Thompsons win, then another win, three losses and a last minute equalizer on quantum.
Thompsons win upheld: Wheeldon
Mrs Wheeldon was a part-time, job share manager at HSBC bank doing 17 hours a week at a very busy, understaffed branch. She regularly worked over hours to finish work and the pressure of work was a subject of complaint by all staff.
In September 1999 she had a panic attack at work and went to see her GP. He signed her off work for three weeks due to stress. The bank was aware of her breakdown through the GP’s certificate, and that this was through stress at work, and offered her an alternative posting in October when she returned.
She opted to stay where she was, but again broke down with problems with sleep and headaches. She was prescribed anti-depressants. After further treatment for migraines, by December her GP described her as just about coping.
This time she was posted elsewhere and she was referred to the Occupational Health Department. They in turn obtained a report from a psychiatrist, Dr England. This confirmed that she had suffered from occupational stress and that she was likely to have further problems if steps were not taken by the bank to "look at the demands that the work is placing on her". She went on to say that "work appears to have precipitated and is indeed perpetuating her mental health difficulties". Finally, Dr England stated that if her recommendations were not pursued "further absences are almost certain".
Her manager was aware of the report through Occupational Health in March 2000. However, no changes were made to work or duties and in April Mrs Wheeldon’s GP recorded that she was coping and told Occupational Health so, who then scheduled a review for September 2000.
She took an unrelated absence for a foot operation between May and July 2000 but her return coincided with over-work pressures and she again suffered panic attacks. She called the Occupational Health Department only to be informed that her file had been closed after discussion with her manager without further reference to her. Mrs Wheeldon felt unable to cope with the situation and resigned.
The case was heard at the first instance at Chesterfield before His Honour Judge Waine. It was his opinion that the bank had breached its duty of care to the claimant. He found that the banks failure to take action to reduce the stress on Mrs Wheeldon allowed her depression to "continue and flourish" after the state of knowledge given to them by their own medical advice.
This could be read as a first breakdown case, or at least that the absences were all part of the same deteriorating illness as it developed, but one that could have been nipped in the bud. The defendant argued there was no separate identifiable psychiatric injury after the consultation with their department in spring 2000.
The Court of Appeal found that, when she had returned to work after spring 2000 , Mrs Wheeldon was “in a marginal situation, just but only just, able to soldier on“. “The failure to give help that had been recommended was the straw – the last straw – that broke the camel’s back,” they stated. But for that breach, her symptoms would not have reached the stage where she was unable to cope any longer. Alternative positive measures could have included training for a different post or reduction in duties, they found.
They upheld the Judgement of the trial Judge and the award of damages in the sum of £18,861.71 inclusive of interest and for £3,500.00 for pain and suffering and loss of amenities.
The case had been fought tooth and nail by Halliwell Landau and indemnity costs were awarded after Part 36 offers were made and beaten in the first action and appeal.
Melville -v- Home Office: "inherently stressful work"
This case deals in part with LJ Hale’s proposition that no work is inherently stressful. ( it does not disagree with that observation but qualifies it for traumatic professions)
The claimant had seen and dealt with eight suicides in his work at prison. He had nightmares and flashbacks shortly after the last and did not return to work. All agreed he had shown no sign before stopping work of a stress related illness.
But the Home Office had recognised the occupational hazard of stress through traumas in a document: “Deaths in Custody – follow up action“, which recommended staff care and support arrangements after a death, the onus being on the employee to ask for this care.
The Claimant was unaware how to access such help and was not contacted.
On the simple question “was psychiatric injury foreseeable?“ Hatton was not to be read as saying the claimant had to mark himself out as being at risk or that no job carried such a risk. The defendant had foreseen the possibility of injury through their circular and the claimant did not need to (and logically could not) show signs of injury before the event took place (this is not to be taken to mean offering occupational health shows foresight of psychiatric injury in all jobs or even the same job elsewhere).
Their scheme for care was an adequate one and breach of duty would arise if it were not implemented. The judgement for the claimant stood.
The claimant had a relevant history of a breakdown and was taking tranquilisers, which she disclosed to Occupational Health when applying for her job with the defendant as a nursing auxiliary. This was noted on her records but she was anyway considered and passed fit to start work there. Her managers were not told of this history as it was confidential health information.
In later years she had recurrent depression, a tragedy when someone in her care died in an accident at work and in common with all staff suffered overwork about which concerns were expressed for staff’s health. Shortly after a memo to this effect, and other members of staff taking time off sick, she suffered a mental illness.
The Court of Appeal found there was no single event or piece of information that made it reasonably foreseeable to her employer she would suffer psychiatric injury. The original information was properly confidential; no one had made a case that the decision to pass her fit to work there was negligent; she had suffered stress through an accident and others had left for other reasons.
They overturned the first instance decision and she lost.
This was an overwork and complaints case that failed for want of clear evidence that a psychiatric injury was foreseeable. There were allusions to conversations suggesting the claimant should be “watched“ but nothing more: no medical notes, no use by the claimant of the counselling services about which he had been told on courses, witnesses who described the injury as a “bolt from the blue” and no mention by him on appraisals of difficulties in the midst of an application for promotion.
On the issue of counselling, it was not fatal to the claimant’s case that he did not use it but it did raise an important question that if he did not recognise it was useful, how could his employer foresee an injury?
Note: Melville (above) is different in that the claimant did not know what counselling did and how to access services.
He failed on appeal.
He had worked for the defendant for 40 years but expressed concern about overwork and his health seven days before departing.
His colleagues had expressed surprise at his memo’ complaining of overwork as he was known for long coffee breaks and short hours.
They did nothing but, a week later when his manager sought him to discuss the memo, he reprimanded him on finding him taking a coffee break as soon as he had arrived at work. This allegedly tipped him into illness. The claimant tried to argue this was a hostile act with intent by the manager.
The case was dismissed as showing no foreseeability of psychiatric injury, breach of duty or causation at all.
This was on causation/quantum only. Having conceded breach of duty, the defendant tried to argue, in line with LJ Hale’s guideline 15, that a reduction should be apportioned for the likely effect on earnings and general damages of injury caused by other psychiatric factors but it was held they had not made this case out on the medical evidence. The appeal was dismissed.
Hartman -v- South Essex Mental Health and Community Care NHS Trust (AC), (2005) EWCA Civ 6, 19 January 2005.