employment law High Court decisions

Liability for work related stress

depressionThe words “work related stress” strike fear into the hearts of many employers. There is a widely held perception that all an employee needs to do is raise the complaint or go off sick with a note referring to “work related” stress or anxiety for the employer to be in a whole world of trouble. It is also widely believed that GPs are far too willing to record a diagnosis of work related stress or anxiety just because it is mentioned by the patient.

However, Government guidance issued in 2013 to coincide with the launch of fit notes states that if “work related stress” or stress arising from personal problems does not amount to a “mental illness”, the GP is to regard the patient as fit for work and so no fit note is required. So getting signed off for work related stress is not, or at least should not be, as easy as is widely thought.

Similarly, bringing a claim for damages resulting from work related stress is far from straightforward, as confirmed in the recent High Court case of Easton -v- B&Q plc. In 2004 Mr Easton joined B & Q as a unit manager. In 2007 he moved to head office and in 2008 he was appointed as manager of the store in Romford. The store performed well and by 2010 Mr Easton was earning about £105,000 p.a. However, in May 2010 he was diagnosed as suffering from depression. Apart from two failed attempts at returning to work in 2010 and 2012 he did not work again for B&Q. B&Q accepted that he suffered from a psychiatric illness that was at least in substantial measure caused by occupational stress. However they denied breach of any relevant duty of care to Mr Easton and that his illness was foreseeable.

Mr Easton was a high achiever and recognised as such. He therefore expected to be promoted from his job as store manager. He felt that he was overlooked for promotion and cited this as one of the causes of his depression. This contention was supported with medical evidence. He maintained that he had been promised that he would be promoted. Witnesses for B&Q felt that he had read too much into the praise he received for his management of the Romford store. In appraisals he was identified as having “further potential” and “may make next level”. Mr Justice William Davis found that Mr Easton had convinced himself that a promotion was on the cards. However there was no “clear promise” of promotion or any similar representation. In 2010 circumstances at work including long working hours (up to 14 hours a day), problems with the introduction of a campaign targeted at trade customers and disruptive construction work at the store took a toll on Mr Easton. By May he had developed the depression which was the basis of his claim. He went off work from 2 May with a diagnosis of depression caused by work related stress.

Initially he was off work for nearly five months. He was prescribed anti-depressants and consulted a psychotherapist as part of the occupational health procedures operated by B&Q. A phased return to work was recommended, commencing 27 September and based initially at the Ipswich store. After a few days he was asked to provide temporary cover as store manager at Belvedere but refused. On 8 October he was signed off again by his GP. A further attempted return to work in early 2012 was also unsuccessful.

In his claim Mr Easton maintained that B&Q should have carried out a risk assessment in relation to stress. It was common ground that no risk assessments were carried out.

Relying on the guidance set out in the Court of Appeal judgment in Hatton v Sutherland the judge decided that Mr Easton’s claim was bound to fail on the basis that the injuries he suffered were not reasonably foreseeable. He had no history of psychiatric or psychological problems and “nothing about him gave anyone any clue that he might succumb to a psychiatric illness”. Further, there was no clear evidence that store managers in general were susceptible to work related stress. Also there was no breach of the duty of care owed by B&Q to Mr Easton, even when they were aware of his vulnerability and were attempting the phased return to work. Risk assessments would not have assisted because, even if a general risk assessment had been carried out it would not have uncovered any general risk of psychiatric injury to the relevant group of employees. Accordingly his claim failed on all counts. Had it been successful he could have expected an award of general damages for pain, suffering and loss of amenity in the region of £17,500. The evidence did not support a claim for ongoing loss of earnings.

Martin Malone

By Martin Malone

I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department.
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