Counselling is not a cure-all

We reported this case in the July 2006 Law Bulletin. Briefly, the claimant had suffered a particularly heavy workload and made numerous protests about the amount of work that she was asked to do and her lack of help and was finally found by her manager in tears at her desk. She was a conscientious employee with an excellent previous record and not given to regular complaints about volume of work.

At her manager’s request , after discovering her in tears, she spelt out her problems at length in writing. She told her manager that her feelings were similar to 2 previous attacks of post-natal depression and said “she had been there twice before”.

She was dissuaded from seeking a transfer by a manager and told an extra employee would be recruited. This would have taken a couple of months (and in fact did not materialise) but the employer failed to take urgent and immediate action in the meantime to reduce her workload. This was held to be a breach of duty. She suffered a breakdown 6 weeks later. The Court of Appeal rejected the argument that the “ window of opportunity” of just over a month between the need for action arising, and the breakdown was too short.
Importantly, the defendant had offered access to a counselling service and argued that, had she used these, the urgency of the need to help her would have become clear.

The Court of Appeal found that counselling was not a “panacea”.

As Simon Dewsbury pointed out in the first instance decision and points out again, this cuts away one of the core 16 principles from Hatton which seem to suggest that, if the defendant provide access to counselling, they “are unlikely to be found in breach of duty” ( LJ Hale’s 11th proposition).

The Court of Appeal said this time :

45: “The reference to counselling services in Hatton does not make such services a panacea by which employers can discharge their duty of care in all cases. The respondent a loyal and capable employee pointed out the serious management failings which were causing her stress and the failure to take action was that of management. The consequences of that failure are not avoided by the provision of counsellors who might have brought home to management that action was required. On the Judges findings the managers knew it was required.”

Simon points out that this fits in with HSE advice going back as far as June 2001 – “stress management is not the answer – stress prevention is”.

(from para 86: “Tackling work related stress: a managers guide to improving and maintaining employee health and well being”.)

Daw -v- Intel Corporation UK, (2007)EWCA Civ 70

For further reinforcement that a claimant’s behaviour at their desk can trigger foreseeability of breakdown see First breakdown stress claim.