How likely is it that an employee who leaves the workplace having suffered ill health as a result of stress can bring a claim against their employer?

I often hear from employers who are very worried about an employee and the risks of them bringing some sort of complaint connected with stress that they say they have suffered in the workplace. The recent case of Easton v B&Q PLC in the High Court illustrates my usual answer that for somebody to successfully bring a claim that they have suffered a psychiatric injury as a result of their employment is rare.

In the Easton case the employee concerned was a manager of one of the stores who had been very successful. He became ill through occupational stress and alleged that this was due to the negligence of B&Q or a breach on their part of their statutory duties to provide a safe place of work. In particular, he argued that B&Q had not done enough to risk assess the workplace in relation to stress.

The employee had been away from work with depression for around five months and took medication and received therapy. He returned to work on a phased basis to a store that was nearer to his home than his usual workplace and which was less busy than his normal store. He became unwell again and was certified as unfit for work due to depression.

Clearly, you need to put aside the extent to which he may or may not have had disability related claims but, focussing just on the issue of stress and psychiatric injury, the case referred back to the leading authority from 2002 in the case of Hatton v Sutherland where various principles were set out as the touchstone in these sorts of cases. The key element of any psychiatric injury claim will be showing that the injury concerned was reasonably foreseeable by the employer. The foreseeability threshold in stress claims will be high as the employer is under no obligation to make searching or intrusive enquiries of their staff and can take at face value what an employee tells them. Therefore, when an employee is signed (either by their GP or under the new Fit For Work service by an occupational health practitioner) as fit to be in the workplace and they come back to work holding themselves out as being fit to be in work (albeit perhaps with some adjustments) by implication they are saying that they regard themselves as fit to work. In those circumstances it is not reasonably foreseeable that they are going to suffer from further harm if they are exposed to the workplace.

In this particular case the employee had had a long managerial career in charge of various large stores with no previous psychiatric history. Whilst B&Q knew he had suffered from a psychiatric illness and was still taking medication, it was found not to be foreseeable that he would become unwell again. Perhaps the judge was content that the employer had taken reasonable steps to adjust the duties to ensure that he was being given a sensible workload.

B&Q did have a document dealing with stress in the workplace which invited individuals to identify and notify their employer of anything that concerned them. This was found by the trial judge to be sufficient – the employee had never raised with B&Q that he had any concerns. In any event, the judge was of the view that even if a further risk assessment had been done, he was unlikely to have revealed any information which would have changed the outcome.

Hopefully you find this case reassuring that, as regards a personal injury claim from somebody’s health being damaged, they say by work, claims are still relatively unlikely. Of course, the areas that you perhaps need to focus on more are around sickness absence management processes and ensuring that employees are supported in their return to work with the making of reasonable adjustments to help facilitate this and that fair procedures are followed when terminating the employment of anyone who, due to their health, cannot maintain their job.  If you have any further questions about managing absence please do not hesitate to contact me