Business Mentality

A new judgement (Dickins v. 02) handed down by the Court of Appeal has left the way open for more claimants to bring stress claims by lowering some of the hurdles set up in the leading stress case of Hatton v. Sutherland.

Up until the judgment in Dickins the Court of Appeal in cases such as Hatton and Conn has clearly sought to limit the number of stress claims by setting hurdles for the claimant to cross before standing any prospect of succeeding.

In Dickins, there has been something of a retreat and the floodgates that the Court of Appeal so firmly shut in previous cases have been allowed to open an inch or two.

Ms Dickins carried out a clerical role that included a quarterly audit that she found very stressful. She asked if she could be moved to a less stressful job but as there were no vacancies immediately available she was told that this would be reviewed in three months' time. A little later she requested a six-month sabbatical complaining that she was suffering from stress and did not know how long she could carry on at work before being off sick. She was advised to contact O2's confidential helpline. She repeated these concerns a month later in her PDR and was referred to occupational health. However, before the appointment took place she suffered a breakdown.

The Court of Appeal judgment has changed the law on stress claims in a number of areas:

1. Forseeability

The court held that the claimant's psychiatric injury was reasonably foreseeable from the point at which she requested a sabbatical. The old rule of thumb following on from Walker was that an employer would not be liable for the first breakdown a claimant had suffered on the basis that it would not normally be foreseeable. Here however the court has said that there was sufficient warning of the risk of harm to the claimant's health and that her breakdown had not "come out of the blue". The employer should therefore have foreseen it. 

2. Breach of duty

In Hatton, the Court of Appeal had said that an employer who provided a confidential helpline would be unlikely to be in breach of its duty. In this case however the provision of such a helpline was held not to be sufficient and that "managerial intervention" was necessary in order for 02 to stay within the duty that they owed their employee. 

It is difficult to envisage the circumstances of a stress claim where managerial intervention is not indicated in some form and it is likely to be difficult to argue from now on that the provision of a helpline is sufficient to discharge an employer's duty.

3. Causation

In common with many stress cases there were a number of factors contributing to the claimant's breakdown here, many of them nothing to do with the employer.The Court of Appeal in Hatton placed the burden of proof on the claimant to establish that, where there were multiple potential causes of the claimant's breakdown, the defendant's breach of duty was one of them. In Dickins, the court felt able to come to the conclusion that 02's failure made a material contribution to the claimant's breakdown on the basis of an "obvious inference" that the employer's failure to recognise the claimant's need for a rest and a change to her work "tipped [her] over the edge". It will be much easier for the courts to draw such an "obvious inference" than for the claimant to prove the material contribution.  

4. Apportionment

Following Hatton, it was generally thought that an employer would only be liable for that degree of psychiatric injury caused by the occupational stress and not for any part of the injury referable to other factors. In Dickins, the Court of Appeal has changed its view. The injury will now be considered indivisible and on that basis an employer will be liable for the whole injury if it is proved that their breach of duty has made anything more than a minimal contribution to the injury.

Summary

Dickins represents something of a reverse for defendants in stress claims. Such claims are normally fought on the battlegrounds of foreseeability and causation and the judgment in Dickins has made it substantially easier for a claimant to succeed on both. It removes the need for the claimant to have suffered a previous breakdown in order for her current injury to be seen as foreseeable and effectively allows the court to decide by inference that the defendant's breach was causative of the claimant's injury. The court has then put an end to the apportionment of the claimant's damages as between tortious and non-tortious causes. 

This judgment will almost certainly mean that more stress claims will be brought and more that would have failed applying the guidelines in Hatton, will now succeed. Dickins in itself is not enough to open the floodgates but there are clear signs that the Court of Appeal is softening its stance on such claims.

[this article was sourced from Workplace Law Network on 22 Oct 2008]