OCCUPATIONAL STRESS AND/OR BULLYING:-  THE HIGH COURT RECONSIDERS WHAT IS NECESSARY TO ESTABLISH FORESEEABILITY AND BREACH OF DUTY

pi_kate_mckinlay By Kate McKinlay

The recently reported decision of Daniel v Secretary Of State For The Department Of Health [2014] EWHC 2578 (QB) is the first judicial consideration of an occupational stress claim for nearly two years.  This 41 page judgment acts as an important reminder of the high threshold in such claims as well as a pithy summary of the relevant law.  Click the link to access analysis of Sir Robert Nelson’s decision together with links to this and other key judgments and guidance in this growing sector.

The Facts

Briefly, the Claimant was employed in 2002 by the Defendant in a senior management position within the NHS.  Her formal title was Network Coordinator for the Cancer Research Network. Her remit at the outset was, with her line manager, to set up and then manage the Cancer Research Network.  She did this very well but problems arose thereafter between 2005 and 2008, and in particular with a very senior colleague in a different organisation, and with whom she had a difficult relationship. She also worked long hours and in 2005 took on an additional role.  After periods of absence, she experienced a severe mental condition in the form of depression in 2008, for which she was briefly hospitalised and after which she was eventually retired on ill-health grounds in 2009.

The Claimant had a history of bi-polar depression with a very high rate of recurrence, approx 90%.

Additionally, the Claimant’s father died in October 2006 following a long-standing terminal illness.

The Action

The Claimant brought an action against her employers alleging injury as a result of occupational stress and bullying/harassment.  She alleged that Professor Gabra’s treatment of her between 2004 and 2006 amounted to bullying and that this, together with her long hours and lack of support, caused her to suffer severe psychiatric harm. She alleged that her line manager, Dr Kaczmarki failed to support her adequately and in particular failed to carry out any psychological risk assessments and/or appraisals at the material times.

The bullying claim centred on emails sent to and about the Claimant by Professor Gabra, who was employed elsewhere but with whom the Claimant was obliged to work, in pursuit of the goals of the Cancer Research Network.  The email said to be at the heart of the claim by the judge was addressed to the Claimant and referred to “the inability of your organisation to carry out the most basic functions …. and also about your inability to communicate clearly with my team” as well as a reference to her ‘strident’ tone (see paragraph 51 of the judgment for a full recital of the email).

The Law

Stress

Sir Robert Nelson’s summary of the legal position for occupational stress claims is succinct and simple and is therefore reproduced in full below (paras 134 to 141) of the judgment:

  1. ‘It is accepted that the principles relating to liability for work-related stress are well established by Hatton v Sutherland [2002] ICR 613and Barber v Somerset County Council [2004] 2 AER 385 and [2004] UKHL 13.
  2. There has, been significant detailed guidance published by the Health and Safety Executive on occupational stress, since 2002, dealing with both risk assessment and risk factors. The risk factors are culture, namely the organisation and how it approaches work-related stress; demands, such as workload; control, namely how much say the person has in the way they do their work; relationships, covering issues such as bullying and harassment; change, namely how organisational change is managed and communicated; role, namely whether the individual understands their role in the organisation and conflicting roles are avoided; and lastly support, namely training and factors unique to the individual.
  3. These publications are of great value to employers in making themselves aware not only of the risk of stress but also of how it might develop. Increased knowledge through guidance of this kind will also inform the courts in applying the relevant tests, but the essential questions which must be answered remain those which are set out in Hatton and Barber. There is, as Lady Justice Hale (as she then was) said in Hatton at para 25, a single test for determining liability in occupational stress cases, namely:-

whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components: (1) an injury to health; which (2) is attributable to stress at work. The answer to the foreseeability question will therefore depend upon the interrelationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him.”

  1. The Court of Appeal in Hatton answered the question of how strong should the indications that harm was foreseeable in a particular case be before the employer had a duty to act as follows in para 31:-

 “Mr Hogarth argued that only ‘clear and unequivocal’ signs of an impending breakdown should suffice. That may be putting it too high. But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health the indications must be plain enough for any reasonable employer to realise that he should do something about it.”

  1. It is the indications of impending breakdown, not stress itself, which establish a claim. Unless foreseeable mental injury to health is established the claim will not succeed. Hatton para 31 and Hartman v South Essex NHS Trust [2005] ICR 782para 2.
  2. Once a duty is established the employer has to act with reasonable care. What is reasonable depends upon:-

” … the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk.” [Hatton para 32]

  1. Finally a claimant must establish that the foreseeable mental injury or psychiatric condition was caused by the breach of duty on the part of the Defendant.
  2. Occupational stress cases are fact-sensitive and require particular care in determination. The inherent problem involved in considering such cases was described by Lord Justice Brown in Garrett v Camden LBC [2001] EWCA Civ 395, cited with approval in both Hatton at para 22 and Hartman. Lord Justice Brown said:-

         “Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situations: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless however, there was a real risk of breakdown which the claimant’s employers ought reasonably to have foreseen and they ought properly to have averted, there can be no liability.”

Bullying

Sir Nelson also gave a succinct summary of the type of behaviour required to establish bullying which, for expediency’s sake is also produced in full herein (paragraphs 142 to 146):-

  1. ‘There is no definition of “bullying” in the authorities, though some help can be gained from the two following cases. In Waters v Commissioner of Police [2000] 4 AER 934 at page 943E Lord Hutton said:-“It is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers.
  2. In H v Isle of Wight Council (QBD 23.2.01) Mr Justice Wright said:-

The criterion for what does or does not amount to bullying in any given circumstances is not to be judged solely by the subjective perception of the victim himself, but involves an objective assessment of the observed behaviour taken in conjunction with any apparent vulnerability in the target of the behaviour complained of.

  1. ACAS give the following definition:-

“Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure.”

  1. The Claimant referred to harassment by Professor Gabra in her email of 30 September 2006 but on other occasions refers to his conduct as bullying. When considering allegations of harassment under the Protection from Harassment Act 1997 Lord Nicholls in Majrowski v Guys and St Thomas’s NHS Trust [2007] 1 AC said that the courts had to distinguish between conduct which is “unattractive, even unreasonable, and conduct which is oppressive and unacceptable”. In the same case Baroness Hale said that all sorts of conduct may amount to harassment and “a great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour”.
  2. It has to be borne in mind that harassment under the Act is a criminal matter whereas bullying is not. Nevertheless, taking into account the various definitions and dicta upon bullying and by analogy to harassment, I am satisfied that for bullying to be established the conduct must be genuinely offensive and unacceptable, examples of which may be intimidating, malicious or insulting behaviour intended to undermine, humiliate or denigrate.’

The Evidence

At the outset the judge noted a lack of evidence, particularly in the form of live witnesses.  The only witnesses before the court were the Claimant herself and her line manager, Dr Kaczmarki, notwithstanding that there were several other apparently relevant witnesses.  In the event he also found the Claimant to be, at times, an “uncertain witness”, who had at times applied hindsight to her recollection of key events.

The Claimant relied upon emails in support of her claim for bullying having conceded out the outset that no specific allegations arose from face to face contact.

Analysis

Stress

In this action there was no doubt that the Claimant had suffered significant harm.  There was also little doubt that on some level her experiences at work had made a material contribution to the onset of her injury such that causation was accepted by the judge.

The key issues therefore were firstly did the Defendant owe her a duty? In other words, was the Claimant’s injury reasonably foreseeable such that a duty of care was triggered? Secondly, if so, did the Defendant discharge its duty towards the Claimant by taking all reasonable steps it could to minimise the risk of harm?

Sir Nelson was in his judgment very clear that the Claimant’s injuries were not foreseeable to the Defendant and that no duty therefore arose. He concluded that, on these particular facts, there was no indication or signs from the Claimant as to impending mental injury (para 179).  He found that there were signs of stress to the extent that the Claimant complained of stress, insomnia and losing weight in December 2006 but that these changes were not visible to the Claimant’s line manager himself.  Furthermore at no time did the Claimant or anyone else tell the Defendant that the Claimant had a pre-existing condition such that the Defendant was entitled to assume that she was of normal fortitude.

In the circumstances of this case one might think that a complaint of stress, insomnia and weight loss, together with subsequent absences from work might just be enough to overcome the high threshold on foreseeability, but apparently not.  We are reminded that, in the absence of a specific disclosure by the Claimant as to her ability to cope and/or a previous absence known to be as a result of stress, actions for psychiatric injury arising out of occupational stress are unlikely to overcome the high threshold.

Bullying

In respect of the bullying claim the judge also found against the Claimant.  He acknowledged that the email sent in September 2006, and reproduced in part above, was “undoubtedly forceful and blunt” but had to be considered in the context of the email that he was responding to from the Claimant, which in the judges’ view was an exercise of power and authority by the Claimant and was likely to create a strong response.  In this context it did not amount to bullying. He concluded that the conflict of principle that had previously arisen between the Claimant and Professor was the root cause of any tension in correspondence between them and that the Claimant had also been forceful and robust when putting forward her position in e-communications.  He accepted that it was not Professor Gabra’s intention to distress the Claimant and that, when he was made aware of her distress, he immediately sent her an unreserved apology.

This judgment is in the writer’s humble opinion, a feather in the cap of plain e-speaking, at least in the workplace.  In a world where email is now the primary form of communication and is, by its very nature, fertile ground for misinterpretation and consequent upset/offence, Sir Nelson’s robust judgment on this point offers some protection to employers as to their exposure to these sorts of claims as well as a sober reminder to claimants, that the bar for bullying/harassment claims remains ever high notwithstanding the changing methods of communication faced by workers today.

PRACTICE POINTS

  • An explicit disclosure to the Defendant of the Claimant’s inability to cope and impending injury, is likely to be essential to establish foreseeability in all cases where the job is not, in itself, known to be inherently stressful.
  • In order for a bullying claim to succeed the behaviour complained of must be genuinely offensive and unacceptable, examples of which may be intimidating, malicious or insulting behaviour intended to undermine, humiliate or denigrate.
  • Uncertain testimonial aided by hindsight is common in stress claims. Supporting evidence in the form of documents and/or live witnesses should be explored in the earliest stages of the claim

A link to the full judgment is here: http://www.bailii.org/ew/cases/EWHC/QB/2014/2578.html

OTHER USEFUL LINKS

Hatton v Sutherland [2002] ICR 613:

http://www.bailii.org/ew/cases/EWCA/Civ/2002/76.html

Barber v Somerset County Council [2004] UKHL 13:

http://www.bailii.org/uk/cases/UKHL/2004/13.html

Hartman v South Essex NHS Trust [2005] ICR 78:

http://www.bailii.org/ew/cases/EWCA/Civ/2005/6.html

Garrett v Camden LBC [2001] EWCA Civ 395:

http://www.bailii.org/ew/cases/EWCA/Civ/2001/395.html

HSE Stress Guidance:

http://www.hse.gov.uk/stress/

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