STRESS CLAIMS – OFFERING CONFIDENTIAL COUNSELLING IS NOT THE WHOLE ANSWER

The decision of the Court of Appeal in Dickins v. O2 provides a useful reminder to employers that if they fail to respond appropriately when it comes to their attention that an employee is suffering from stress, they may well end up facing a damages claim.

There is a fair amount of urban mythology surrounding stress claims. They are often seen as part of the “compensation culture”. In fact, an employee who brings such a claim faces a number of significant hurdles. It will not be enough for him to show that he is stressed through overwork. To succeed in such a claim, he will need to prove that he is suffering from a recognised mental illness which was a reasonably foreseeable consequence of a breach of duty on the part of his employer – something that is often far from easy. The law places a fair degree of responsibility on the employee to decide for himself whether he is capable of doing a particular job. Further, previous case law has suggested that an employer is unlikely to incur liability for stress claims if he makes a free and confidential counselling service available to employees.

However, avoiding potential stress claims is not a tick-box exercise. Each case will depend on its own facts. In the Dickins case, D had worked for the defendant for a number of years. On a number of occasions, she had drawn her managers’ attention to the fact that she was experiencing serious difficulties at work due to stress. There was talk of action, including a possible referral to O2’s occupational health department, but nothing was actually done. D subsequently suffered a breakdown in her health and sued O2 for psychiatric injury caused by excessive stress in the course of her employment. D won in the county court and was awarded almost £110,000.

The Court of Appeal dismissed O2’s appeal. It rejected O2’s argument that the Judge had failed to appreciate the difference between stress and stress-related illness, or that he had not properly understood that the indication of impending illness had to be clear before the employer was obliged to do something about it. Offering a free and confidential counselling service has real advantages, as employees are often unwilling to admit to their employer that they are not coping with their work for fear of repercussions. However, in the present case D had had no such inhibitions about alerting O2 to her problems. As may often be the case, the solution to D’s problems required positive management intervention.
Providing a free and confidential counselling service almost certainly remains best practice and may still provide an important plank in defending a stress-related claim. However, the moral of the Dickins case is that once management has been made aware of a serious problem, it must get a grip and ensure that the problem is dealt with effectively and as quickly as possible. Failure to do so may result in a substantial claim for damages.

If you would like to know more, please contact Nick Crook or Gareth Pobjoy.

Filed: 05/11/2009 12:12:06