1. Prolonged stress built up over the course of time through exposure to an excessive workload, long working hours or the breakdown of a working relationship can go unnoticed until too late.

The question for employment/personal injury lawyers is when will an employer be liable for a psychiatric illness that is induced by workplace stress? The answer in legal terms is no different to the question of liability for any other injury: when the risk of injury, in this case a psychiatric illness, is foreseeable. Was it foreseeable that this particular employee would suffer a psychiatric illness and not just work-related stress?

SUTHERLAND v HATTON: THE 16 POINT PLAN

2. In Sutherland v Hatton 2002 IRLR 263 the Court of Appeal laid down guidelines as to how courts should deal with negligence claims made against employers by employees with psychiatric injuries.

3. The Court of Appeal stated that an employer will escape liability for an employee's psychiatric injury unless it was reasonably foreseeable that the employee in question would suffer such an injury as a result of occupational stress. That of course is not a new principle.

4. The Court made it very clear that there are no occupations which are so intrinsically stressful that psychiatric injury is always reasonably foreseeable.

5. In the view of the Court the answer to the question of foreseeability will depend upon the relationship between the particular demands of a job and the particular characteristics of the employee concerned. Foreseeability is whether this kind of harm to this particular employee was reasonably foreseeable i.e. injury to health attributable to stress at work. The Court therefore set out and listed a number of factors which were relevant to the issue of foreseeability and these factors were split into two groups.

6. The first group related to the demands of the job and included the following considerations:-
• The nature and extent of the work done by the employee;
• Whether the employee's workload is much greater than is normal for the kind of job which he or she performs;
• Whether the employee's work is particularly intellectually or emotionally demanding;
• Whether demands being made of the employee are unreasonable when compared with the demands made of others in comparable jobs;
• Whether there are signs that others doing the same job are suffering harmful levels of stress;
• Whether there is an abnormal level of sickness absenteeism in the employees job or department.

7. The second group of factors reflected the view of the Court of Appeal that the most important question centres on what the employer knew, or ought reasonably to have known, about the circumstances of the individual employee in question. The Court stated that the following factors might be relevant:
• Whether there are signs from the employee of impending harm to health;
• Whether the employee has a particular problem or vulnerability;
• Whether the employee has already suffered from illness attributable to stress at work;
• Whether there have recently been frequent or prolonged absences that are uncharacteristic of the employee and whether there is reason to think that these are attributable to stress at work.

FACE VALUE

8. An employer will be entitled to assume that an employee can cope with the normal pressures of a job unless the employer knows of something specific about the job or the individual concerned that should make the employer consider the issue of psychiatric injury. The employer is not obliged to make intrusive enquiries and is generally entitled to take what he is told by his employees at face value.

DUTY TO TAKE REASONABLE STEPS

9. A duty to take steps only arises where signs that an employee might suffer psychiatric illness from stress at work are plain enough that any reasonable employer would realise that he should act.

10. The employer will only be in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.

11. The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable (rather like the test for unfair dismissal); these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

12. An employer can only be reasonably expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (probably from a Consultant Psychiatrist or Occupational Health Consultant).

13. An employer who offers a confidential advice service including counselling or treatment is unlikely to be found in breach of duty except where he has been placing unreasonable demands on an individual where the risk of psychiatric injury was clear.

14. One step an employer is not obliged to take, even where that step would be the only reasonable and effective one available, is to demote or dismiss an employee in order to remove him or her from a stressful situation. In the view of the Court an employer will not be in breach of duty simply by allowing a willing employee to continue in his or her job.