Can I Sue for Stress at Work?

July 2010: Everybody encounters a degree of stress at work, and arguably stress in moderation can be a positive thing. Few people would therefore ever want to bring a claim in relation to occupational stress, though such claims do arise.

Constructive Unfair Dismissal:

If there is an excessive amount of stress at work, whether it is due to bullying, or an excessive work load, or targets, one remedy may be to resign and claim constructive unfair dismissal.  However Employment Tribunals can only make awards for financial losses, and not injury to feelings or psychiatric injury.

Stress Related to Unlawful Discrimination:

If the stress suffered is related to unlawful discrimination (race, sex, disability, religious belief, sexual orientation and from October 2006 age) then it will also be possible to claim injury to feelings. There is an overlap with a personal injury claim for psychiatric injury. This has the advantage for the employee over a negligence claims (see below) in that the employee does not have to establish the test of ‘foreseeability’ for such an injury.

In one case, Essa v Laing Ltd [2004]  Mr Essa suffered discrimination on racial grounds when a colleague referred to him in insulting and derogatory terms. As a result he suffered from serious psychological depression. The Employment Appeals Tribunal held that all that was necessary for recovery of compensation was a direct causal link between the discrimination and the psychiatric injury suffered. The Court of Appeal agreed,  but it appears a different test could apply if there was no intentional harassment.

Personal Injury Claim for the Tort of Negligence:

I am not a personal injury lawyer, and my knowledge of this field is limited. However:

In Sutherland v Hatton 2002 the Court of Appeal gave detailed guidance on the issue of when an employee’s psychiatric injury is reasonably foreseeable, stating amongst other points that an employer should be able to assume that an employee can withstand the normal pressures of a job unless the employer  knows of some particular problem. The indications of impending harm to health must be sufficiently clear for any reasonable employer to realise that he should do something about it.

Signs of stress in a worker must have been obvious to the employer for the worker to succeed in a stress related claim. An employer who offers a confidential counselling service is likely to have a complete defence to a stress related claim by a worker. An employer can usually assume that an employee can withstand normal job pressures (unless he knows of a particular problem or vulnerability) and the onus is normally on a worker to complain about stress and to bring it to the attention of the employer. There is no breach of duty in allowing a willing worker to continue in a stressful job if the only alternative is dismissal or demotion.

In the 2004 case  House of Lords in Barber v Somerset County Council the House of Lords approved Sutherland but emphasized that the overall test is still ‘the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know’.

For example  in the 2005 case of Hone –v- Six Continents Retail Ltd in the Court of Appeal an employee with an ‘excessive workload’ won his stress related claim, because the psychiatric injury had been reasonably foreseeable by his employer which had not taken reasonable steps to prevent the injury. In that case Mr. Hone had complained about working some 90 hours a week, of being tired, and had asked for an assistant. He ended up collapsing at work. Six Continents Retail had disregarded the Working Time Regulations which state that the employer should ensure that the employee does not work more than 48 hours per week (as averaged over a 17 week period).

This kind of claim remains the exception rather than the norm, and someone getting signed off with stress for a fortnight is still unlikely to have a psychiatric injury. However employers would be wise to promptly review the system of working of anyone who complains of stress at work, particularly if they are also working excessive hours.

In Hartman v South Essex Mental Health and Community Care NHS Trust, [2005] Court of Appeal it was held that liability for psychiatric injury caused by stress at work is in general no different in principle from liability for physical injury; and it is foreseeable injury flowing from an employer’s breach of duty which gives rise to this liability so the mere fact that an employee suffered stress at work and that the employer was in breach of duty in allowing that to occur does not mean that the employer is liable to the employee. Each case must be determined on its own facts and merits. The guidelines laid down by the House of Lords in Barber v Somerset County Council HL 2004 ICR 457 and by the Court of Appeal in Sutherland v Hatton CA 2002 ICR 613 are both relevant and useful but they are guidelines not strict rules.

In the 2006 Court of Appeal case of Pakenham-Walsh v Connell Residential,  Ms Pakenham-Walsh, suffered a psychiatric injury after working 52.5 hours per week over a five-month period, without proper breaks or adequate support, although she had worked the hours voluntarily and had not complained about stress levels. The Court of Appeal held that psychiatric injury was not reasonably foreseeable: Ms Packenham-Walsh’s work was not intellectually or emotionally demanding, she had not gone sick with work related stress and she had no history of illness related to stress. She had voluntarily worked the extra hours to earn more money. Although the employer had failed to comply with its obligations under the Working Time Regs, that was not the deciding factor.