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Emma O'Connor
Emma O'Connor,
HEAD OF TRAINING
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Stress at work - Foreseeability of injury
29 April 2015

Background

In 2009 the claimant had been appointed as the manager of a shop in Romford which was about to undergo a substantial refurbishment. This was carried out successfully and the store performed well.

The manager was diagnosed as suffering depression in May 2010. Save for two short and unsuccessful attempts to return to work in September 2010 and January 2012, he did not manage to get back to his job. The manager subsequently brought a claim for work-related stress and sought damages for psychiatric illness and consequential loss.

He argued that his depression was caused by occupational stress and this stress was due to the negligence and/or breach of statutory duty on the part of the company. He further claimed that his employer were in breach of duty in their management of his return to work in September 2010 which caused a relapse in his illness.

Foreseeability test

The judge reiterated that no special control mechanisms apply to claims for psychiatric illness and that the ordinary principles of employer’s liability apply. The issue was whether the illness was reasonably foreseeable. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. The judge stated that an employer does not have a general obligation to make searching or intrusive enquiries and may take at face value what an employee tells him. The threshold that an employee needs to cross to establish that the "injury was reasonably foreseeable" by the employer is therefore high.

In the claimant’s case, he had a long career as a manager in charge of large retail outlets and had not had a psychiatric history, and so his illness was not foreseeable by the company. Before his relapse, the company clearly knew about his psychiatric illness but the judge held that the simple fact that he was still taking medication was not determinative as to how his employment should be handled. It is possible to be successful in a demanding job whilst still requiring medication. The judge therefore held that the relapse was also not foreseeable.

In this case the company had a document about managing stress, which invited employees to identify and notify the company of any symptoms. The claimant made insufficient efforts to do this and therefore a wider risk assessment would have had no effect on the outcome of his illness.

What steps should employers take to minimise the risks of a stress related claim?

It is important for employers to have a stress at work policy which sets out what steps an employee should take to notify their employer about stress, including contacting their manager. Various steps can then be taken to alleviate their stress where necessary e.g. workload review, reallocation of work etc.

As this case demonstrates, employers are not expected to examine in detail employees as to potential stress issues and can accept at face value what an employee tells them. The employee also has a responsibility to inform the employer of any issues. Employers are only under a duty to take action once they know, or ought reasonably to know, of the employee’s stress.

For more information about the issues in this article or to find out more about how the Employment team can help you please contact the team on 0118 952 7284 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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