Case update (2): Health and safety – seeing stress coming…

disability discriminationSummary: Where an employee suffers from a psychiatric illness caused by workplace stress, how easy is it for the employee to prove that it was reasonable for the employer to have foreseen the injury, and therefore be liable for it?

Not very easy, according to the High Court in Easton v B&Q Plc available here.

Facts: Mr Easton was recruited by B&Q as a unit manager in 2004, and by March 2010 he had been appointed as the manager of the B&Q store in Romford. In May 2010 he was diagnosed as suffering from work-related stress and depression and was signed off sick. About five months later in September 2010 a phased return to work was agreed. In the first week of his return, Mr Easton met with one of his managers and was offered a temporary manager’s role at a different store closer to his home and less busy than Romford. He said he would need to think about it. The following day Mr Easton saw his G.P. who re-certified him as unfit to return to work due to depression. Mr Easton requested an extension of his sick pay on compassionate grounds but this was refused. He was signed off again on 8 October 2010 due to depression.

Mr Easton subsequently brought a claim for damages for psychiatric illness and consequential loss caused by work-related stress, which he claimed was caused by negligence and/or breach of duty on the part of B&Q. In particular Mr Easton claimed that B&Q were in breach of duty in their management of his return to work in September 2010 so as to cause a relapse of his illness. Mr Easton argued that there was a lack of risk assessment in relation to stress. However, he agreed that he had been given a copy of the stress management policy which invites individuals to speak to their manager if there is a problem.

B&Q accepted that Mr Easton suffered psychiatric illness caused largely by work-related stress, but argued that his illness was not foreseeable and that it did not act in breach of any duty.

The High Court held that Mr Easton’s claim failed on the basis that the psychiatric illness was not foreseeable. Foreseeability depends upon what the employer knows about the employee, and an employer is usually entitled to assume that an employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability. It may well be foreseeable that certain employer behaviour will leave the employee alienated, angry, miserable, bitter, embarrassed, etc., but these are just ordinary incidents of the fair wear and tear of working life and are not the same as active psychiatric injury.

Factors likely to be relevant in considering whether the harm is reasonably foreseeable include (but are not limited to) the nature and extent of the work done by the employee and any signs from the employee of impending harm to health. The employer will only be in breach of duty if he has failed to take steps which are reasonable in the circumstances.

In this case, Mr Easton during his career had been in charge of large retail outlets and had no history of any psychological or psychiatric problems. Nothing about him gave anyone any clue that he might succumb to psychiatric illness and he did not complain because he wanted to impress senior management. The High Court was satisfied that running the store was a real challenge but that because of his desire to maintain his profile as a high performing manager, Mr Easton said nothing to his management which could have suggested that he was struggling and needed help.

As to the relapse suffered by Mr Easton in September 2010, whilst it was true that B&Q knew that he had suffered a psychiatric illness and was vulnerable, does not mean that the employer will inevitably be liable for any subsequent injury – the ‘reasonably foreseeable’ test still applies. Further, the fact that Mr Easton was still taking medication was not determinative as there are many people who hold down demanding jobs who still require medication. Mr Easton had said that he wanted to go back to work and felt ready to return.

The High Court found that B&Q was entitled to accept that an employee who has returned to work is fit to do so unless he says otherwise. B&Q had no obligation to make ‘searching or intrusive enquiries’, although as psychiatric illness can distort the employee’s perception of what he is fit to do, there is a greater responsibility on an employer to keep a closer eye on an employee’s re-integration and rehabilitation. In any event, in these circumstances, B&Q was entitled to act on the basis that Mr Easton would be able to assess whether he wished to take up the temporary manager’s post.   The fact that the offer deviated from the planned phased return was not sufficient to make the offer a breach of the duty of care.

Implications: The good news is that employers are not expected to be telepathic (!) and this case is a useful reminder that the threshold for foreseeability of psychiatric injury and breach of duty is high. The courts recognise that many or most employees will experience periods of being overworked and stressed at work. Very few go on to suffer psychiatric illness as a result. An employer’s obligation to act arises when the indications are plain enough for any reasonable employer to realise that he should do something about it.

However, remember that once the employee does openly protest injury does become foreseeable and the onus is then on the employer to explore the reasons and causes and, if necessary, to remedy. Therefore employers should continue to keep their eyes open for employees who may not be coping so that they are ready to deal with this once the employee starts to protest about it.