Stress case upheld: working time regs discussed
The Claimant was a hotel pub manager from August 1999 until his breakdown on 15 May 2000. In April 2000 he lost two key employees and one member of administrative staff. This added to his workload significantly. There was an ongoing issue that he had no assistant manager.
He had a meeting with a new manager on 19 April 2000. That manager had been told the claimant would neither sign in to or out of the Working Time Regulations 1998 because of “lack of management support". The claimant brought up the issue of lack of support and very long hours. He said he was tired and his manager accepted he needed help and that an assistant manager should be appointed. Nothing much was done to that end – and certainly no assistant appointed – by the time the claimant collapsed about a month later.
This was an overwork case with 89-92 hours per week, seven days per week alleged by the claimant. The trial Judge found that after the above meeting (and not before, even though he claimed to have been working those hours beforehand and had not had an assistant manager for a long time) it was reasonably foreseeable he would suffer an injury if no help were given.
The Court of Appeal considered this and said the relevant test was LJ Hale's seventh proposition from Hatton -v- Sutherland that “to trigger a duty... the indications of injury to health (to the reasonable employer) must be plain enough to realise they should do something about it".
They found the trial Judge was right to find injury was foreseeable with particular reference to these signs:
His comment at the meeting with his manager that he was working very long hours.
His further comment at the meeting that he was tired.
That he had no assistant manager as long since requested.
That his records showed he was working over 90 hours per week – even if this was “nonsense", as the defendant said, this could be interpreted as a cry for help.
He had an excellent work record.
He refused to sign in or out of the Working Time Directive “due to concern at the hours he was working and his manager and employer were aware of the Working Time Regulations and the purpose of those Regulations".
The Claimant won.
Anyone who has a stress case can take comfort from how low the Court of Appeal seems to have allowed the barrier of foreseeability to go on the facts of this case. They even acknowledge the claimant at no time said his health was affected by his work and that he gave the impression of being "well, self confident and in control" both before and after the relevant meeting.
The Court also expressed surprise there was any Appeal.
(There was no specific ruling on the applicability of the Working Time Regs although Brian Langstaff QC for the claimant said he was prepared, if asked, to argue a breach of those as a discrete cause of action if required).
Construction trial victory comment
We reported a trial in the last bulletin about a worker who drove off a ramp into a hole. It has had quite a few reports and the Law Society Gazette, praises it as a good example of a Judge upholding the allegation that a failure to risk assess a task and area can result in a breach of statutory duty.
The file handler in this case praises Morgan Finch & Co. who gave oral evidence as an engineering expert and whose evidence was accepted by the trial Judge.