Occupational Stress Claims

Workers in the U.K. work under increasingly stressful conditions. On average, they work more hours than workers in the rest of Europe and have increasingly hectic lifestyles. Although the Working Time Regulations 1998 are designed to protect the worker, they can opt in or out of these regulations so that the standard 48 hours of work per week can be extended.

As a result occupational stress claims have become more common in the U.K. In one of the first stress cases to reach the courts Sutherland v Hatton the court held that harmful levels of stress are likely to occur when a person feels powerless or trapped - this may occur when a person is moved into a role in which they are unfamiliar without the support or training they require or when workloads are so excessive that a person is constantly under stress.

As with all claims for personal injury, the onus will be on the claimant to prove on a balance of probabilities that they were owed a duty of care, which was breached causing damage/injury. Of course, psychological injury is rather more difficult to prove than physical injury and this is where the need for specialist solicitors and experts becomes important.

Recent Case Law

The case of Hone v Six Continents Retail  is one of the most recently decided cases in this area. The Court of Appeal found unanimously in favour of the Claimant and dismissed his employers appeal. In this case the claimant, who was a pub manager had been working for excessive numbers of hours will little support.

The Court of Appeal held in the case that the test laid down in the Hatton  case which further stated that a duty to take steps would be triggered when 'the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should have done something about it.

The case therefore supports the notion that a successful claim for occupational stress can be mounted from a breach of the Working Time Regulations.

Requirements

One of the major difficulties facing a claimant who wishes to mount a claim for occupational stress at work is that the government has not legislated specifically in this area. The cases of Petch v Commissioners of Custom and Excise and Walker v Northumberland County Council were amongst the first to recognise that the well established principals of employers liability also applied to claims for psychiatric illness arising from occupational stress.

There have been several seminal cases involving personal injury due to stress. The most well known is that of Walker v Northumberland County Council . This was one of the first successful claims for damages due to stress.

Of course many cases never reach the courts and are settled out of court. The appellate courts have therefore used the cases which have reached them to set down various requirements for occupational stress claims.

1. The claimant must have suffered an injury.
2. The injury must have been caused by stress at work.
3. The injury must be foreseeable
4. The claimant must show that the injury was the fault of the employer and could not have been avoided.
5. An employee feeling excess stress should alert their employer and/or union to the problem.

 

The courts have laid down the above requirements over a series of cases and these hurdles must be overcome in order to mount a successful claim. More often than not the injury to the claimant will be psychological and will usually be manifested in the claimant suffering a nervous breakdown or post traumatic stress disorder (PTSD). The claimant must also establish a causal link between the injury and stress at work - most of us suffer some degrees of stress outside the workplace due to bereavements, divorce or financial worries and the claimant must show that 'but for' the stress at work they would not have suffered any injury. In other words other sources of stress must be so small as to be negligible.

The courts have also held that in determining the forseeability of the injury, they will take into consideration the individual characteristics of the employee and the demands placed upon them by their particular employee. The indications of stress should be clear enough that a reasonable employer should be able to recognise them. The last requirement suggests that the claimant should inform their employer and/or union that they are suffering.

Costs

It has been accepted that a 100% success fee can be charged in stress cases. This is due to the fact that the level of success fee must reflect amongst other factors, the complexity of the issues and as stress cases are notoriously high-risk cases, this can be justified. In the Hone case the court held that they wished to consider whether the costs were proportionate to what was at stake, in this case £21,000.00. It is interesting that the courts have mentioned proportionality in this case, particularly as the Campbell v MGN case is the subject of detailed assessment with costs close to £1million and an award of around £3,000.00. Some commentators feel that if the courts insist in proportionality not to the complexity of the issues and the risks involved, but to what is ultimately at stake, that this will lead to costs capping at allocation .