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Andrew Buchan

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Title: Stress at work: is Hatton v. Sutherland still good law?
(Alternative title: are the practical propositions still useful?)

The practical propositions set out in the case of Hatton v. Sutherland, as modified by Barber v Somerset CC have been the principal authority governing the liability of employers in stress at work cases since 2002.

This paper examines how some [1] matters, both legal and practical, have developed since the time frame (February 1997) with which the Hatton cases were concerned and whether the practical propositions are still relevant.

Legal Developments

Negligence

What did Hatton decide?

In Hatton, the Court of Appeal (per Hale LJ) stated at paragraph 16:

“There is an argument that stress is so prevalent in some employments, of which teaching is one, and employees so reluctant to disclose it, that all employers should have in place systems to detect it and prevent its developing into actual harm.  As the above discussion shows, this raises some difficult issues of policy and practice which are unsuitable for resolution in individual cases before the courts.  If knowledge advances to such an extent as to justify the imposition of obligations upon some or all employers to take particular steps to protect their employees from stress-related harm this is better done by way of regulations imposing specific statutory duties.  In the meantime the ordinary law of negligence governs the matter”. (My emphasis)

 The practical propositions were as follows:

1. There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply
2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee.  Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large.  An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
4. Factors likely to be relevant in answering the threshold question include:
1. The nature and extent of the work done by the employee.  Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
2. Signs from the employee of impending harm to health.  Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
5. The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary.  He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.
6. To trigger a duty to take steps, 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 do something about it.
7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
8. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
9. f the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job
10. In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
11. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered.  It is not enough to show that occupational stress has caused the harm.
12. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible.  It is for the defendant to raise the question of apportionment.
13. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event

There is no special rule peculiar to “stress” cases: they are to be treated as ordinary cases of occupational injury: see Hatton –v- Sutherland [2002] ICR 613, at 631, where this is the first principle expressed at paragraph 43.

The test of foreseeability is thus no different from that applied generally in tort. The test for foreseeability is that set out in the Wagon Mound (No. 2): (Overseas Tank Ship (UK) Limited –v- Mellor Steamship Co. [1967] 1 AC 617, at 642:

“It does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude.  A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g. that it would involve considerable expense to eliminate the risk.  He would weigh the risk against the difficulty of eliminating it……  Bolton –v- Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man.  What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it”.

Once risk of injury is established, it is incumbent upon the employer at common law to take reasonable steps in response to the risk.

Where an employer is already subject to a requirement to take the very steps which are necessary to avert or minimise the risk, there is no difficulty in a court concluding that breach is established: thus in Wagon Mound (No. 2) the discharge of oil onto the water of Sydney Harbour created such an obvious risk of fouling the slipway etc. that, risk of fire aside, it was already the duty and interest of the ship’s engineer to stop the discharge immediately (see per Lord Reid, at p. 643).

Similarly the fact that there is a statutory requirement to carry out a risk assessment of stress means that here, just as in the Wagon Mound in the words of Lord Reid, there could be “no question of balancing the advantages and disadvantages” [2] , and in the words of Lord Hoffman in Jolley “(the Council) would only have had to do what they admit they should have done anyway” [3] .

The best statement of general principle in this area of law remains that of Swanwick J in Stokes –v- Guest, Keen and Nettlefold (Bolts & Nuts) Limited [1968] 1 WLR 1776 at 1783 [4] :

“The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know, where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it, and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions.  He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does, and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.  If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent”. 

(My emphasis)

It was this feature in particular which persuaded the House of Lords in Barber to conclude that the Court of Appeal had wrongly allowed the County Council’s appeal against the first instance judgment, for the majority of the House of Lords recognised that an employer should have taken the initiative in making enquiries (see paragraph 68) and monitored the position. The minority decision of Lord Scott of Foscote [5] – to the effect that the onus should be placed upon the employee to alert the employer was rejected by the House.

There is nothing in the judgment in Hatton, or in the subsequent (post Barber) decision of Hartman and Others [6] which requires an employee specifically to complain that his health is at risk before his employer is subject to a duty to take reasonable steps to avoid or minimise that risk.  Not only is this plain from the underlying principle (see Stokes –v- Guest, Keen Nettlefold) that there is nothing to that effect in the principles set out in Hatton, but in the appeal of Melville (see paragraphs 126 to 130 of Hartman) it was common ground that before he stopped work Mr. Melville gave no indication that he was developing a stress related illness.  Nonetheless, Home Office guidance was such as to the after effects of dealing with a suicide in prison that the risk of injury was still foreseeable (see, in particular, paragraph 135 of Hartman).

Breach of Statutory Duty

The Framework Health and Safety Directive 89/391/EEC

The General Principles of Prevention

Article 6 of the Framework Health and Safety Directive provides:

 “1 Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.

…be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations.”

 2 The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention:

(a)       avoiding risks;

(b)       evaluating the risks which cannot be avoided:

(c)        combating the risks at source;

(d)       adapting the work to the individual, especially as regards the design of work places, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined  work-rate and to reducing their effect on health.

(e)       adapting to technical progress;

(f)         replacing the dangerous by the non-dangerous or the less dangerous;

(g)       developing a coherent overall prevention policy which covers technology, organization of work, working conditions, social relationships and the influence of factors related to the working environment;

(h)        giving collective protective measures priority over individual protective measures;

(i)         giving appropriate instructions to the workers.

The Travaux Preparatoire of Directive 89/391/EEC

The Health and Safety Information Bulletin (HSIB) for the period from February 1989 to May 1989 show that the UK tried to insert the “reasonably practicable” test into the Framework Directive (89/391/EEC) and failed. (see HSIB 158 and particularly HSIB 161 dated 10^th May 1989) The phrase was originally inserted but removed from the draft Directive. Instead the UK succeeded in inserting Article 4(4) which later became Article 5. The difference in the standards required can be seen from the paragraph headed “British Concern”. Article 4(4) is referred to as a force-majeure clause. The British Government are quoted as saying that this solution was “not ideal”. But that it is the “firm aim of the government to maintain the existing system of UK health and safety law”.

That position has been challenged by the European Commission in Case C-127/05. The UK has chosen to contest infraction proceedings concerning the question of the “reasonable practicability” test contained in the Health and Safety at Work Act 1974. (Criminal statute)  The European Commission has asked the UK to remove this test from the Act . The UK Government refused to do so and the case is currently before that European Court.

Management of Health and Safety at Work Regulations 1992 & 1999

Background

The UK Government purported to implement the Framework Health and Safety Directive 89/391/EEC through the Management of Health and Safety at Work Regulations 1992.

The UK Government failed to do so properly in at least two important respects.  Firstly, it purported to implement Article 6(2) (the key Article on prevention of risk, set out above) of the Framework Health and Safety Directive into the Approved Code of Practice paragraph 27. This meant that failure to comply with this Article was not a criminal offence per se but merely evidence that such an offence might have been committed [7] .

Secondly, it specifically excluded civil liability for breach of the 1992 Regulations (Regulation 15) and later, the 1999 Regulations (Regulation 22).

These two failures have now been rectified. But only after the practical propositions set out in Hatton were decided (February 1997).

The first by the Management of Health and Safety at Work Regulations 1999, Regulation 4 and Schedule 1. Since 29^th December 1999 Regulation 4 has transposed Article 6(2) of the Framework Health and Safety Directive. It does so in my opinion in a less than satisfactory manner. The “principles of prevention” which are the cornerstone for health and safety protection contained in the Directive are now set out in Schedule 1. Given their significance it is surprising that these principles have not been spelt out in Regulation 4 instead of inserted (as if by afterthought) in the Schedule.

The second, by the Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 (2003 No. 2457) [8]

The exclusion of civil liability for breach of the Management of Health and Safety at Work Regulations 1999 (which replaced the 1992 Regulations [9] ) has been removed from the 27^th October 2003 for employees. These Regulations did not attract any publicity. No explanation was given for the amendment in the regulations however, it can be seen from subsequent regulations that the amendments were demanded by the European Commission.

The explanatory memorandum to the Management of Health and Safety at Work (Amendment) Regulations 2006 No. 438 state where relevant:

“3.2. The civil liability provisions of the 1999 Regulations were amended in 2003, in response to concerns raised by the EC Commission, to enable employees to claim damages from their employer in a civil action where they suffer injury or illness as a result of the employer being in breach of those Regulations.”

“4.2. The 2003 amendments to the 1999 Regulations…were offered by the UK to the European Commission in 2001 to address their concerns over the implementation of the EC Framework Directive.  Failure to make the necessary amendments could have led to infraction proceedings.”

The UK chose not to contest the threatened infraction proceedings, no doubt on advice from experienced European lawyers. 

The standard of care and breach of statutory duty

To understand how the duty at common law differs from a claim for breach of statutory duty, it is necessary to go back to first principles.  A statutory obligation must be met [10] .  It is not, as a general rule necessary to show that a Defendant was negligent or that it was practicable to meet the duty. [11]

Once a hazard is identified the employer is under a duty to take preventative and protective measures.

The Courts have long since distinguished claims of breach of statutory duty from Negligence. Reasonable foreseeability is seen to dilute the protection provided by statute. See Munkman, Employer’s Liability, Butterworths 14^th Edition 2006, paragraphs 5.01, 5.31 – 5.39.

Compliance with the requirements of the Regulations is not, in order to comply with the criminal standard, subject to a test of what is “reasonably practicable” under Section 2(1) of the HSWA 1974. No such standard applies in relation to civil liability.

The general principles of prevention are:

(a)       avoid risks;

(b)       evaluate the risks which cannot be avoided:

(c)        combat the risks at source;

(d)       adapt the work to the individual, especially as regards the design of work places, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined  work-rate and to reducing their effect on health.

(e)       adapt to technical progress;

(f)         replacing the dangerous by the non-dangerous or the less dangerous;

(g)       develop a coherent overall prevention policy which covers technology, organization of work, working conditions, social relationships and the influence of factors related to the working environment;

(h)        give collective protective measures priority over individual protective measures;

(i)         give appropriate instructions to the workers.

Thus, employers have to avoid risks that can be avoided. This requirement more closely resembles the UK common law test of “practicability”. Something is practicable if it is “capable of being carried out in action” or “feasible” [12] . It is a much stricter test and well known in UK health and safety law. The introduction of the word “reasonably” creates a lesser standard and one that allows considerable judicial discretion.

Article 5(4) provides:

“This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employer’s responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employer’s control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.”

Article 5(4) provides the only exception to Directive 89/391/EEC’s obligations. That exception does not, on its face, permit qualifications as generous to employers as the conventional interpretation of “reasonably practicable”; in particular, that Article seems to be inconsistent with a cost benefit analysis.  The point is emphasized by the preamble to the Directive which states that health and safety should “note be subordinate to purely economic considerations”.  The permitted exclusion seems to be closer to how the English Courts have traditionally construed “practicable” rather than “reasonably practicable”. 

As can be seen from the above, the European approach to Health and Safety is preventative. It requires employers to employ a competent person to assess all the known risks of work and deal with them based upon the hierarchical sequential approach set out in Articles 6(2).

The Editors of Munkman “Employer’s Liability” 13^th Edition, considered the use of the term reasonable practicability in legislation implementing European Directives [13] .  They stated at paragraph 9.85:

“It is debatable whether an interpretation more akin to practicability may be required in the context of legislation implementing European Directives.”

The current Edition of Munkman (14^th edition paragraph 5.87) is less forthright. It states “…the true position between interpretation of the Directives and domestic implementation may be less than many perceive.”

They both go on to point out that the Framework Health and Safety Directive was made under Article 137 (ex art 118A) EC. Which provides:

“Member States shall pay particular attention to encouraging improvements, especially in the working environments, as regards the health and safety of workers and shall set as their objective the harmonization of conditions in this area, while maintaining the improvements made.”

The Article also provides that the standards which the Directives adopt are:

“minimum requirements …having regard to the conditions and technical rules obtained in each of the Member States.”/span>

The Preamble to the Framework Health and Safety Directive states:

 “This Directive does not justify any reduction in levels of protection already achieved in individual Member States.”

Relevant issues

The questions that Trial Judge’s should now ask for all types of injury occurring after the 27^th October 2003 are: 

1.Did the Claimant’s work present a hazard that needed to be risk assessed?

2.If not, the statute is irrelevant. If yes:

3.Was a suitable and sufficient risk assessment for psychological injury undertaken? If yes, did it identify preventative steps and were these complied with? If not,

4.What preventative steps should have been taken?

5.When should they have been taken?

6.What difference would they have made to the Claimant’s injuries?

Practical  Developments

The material considered by the Court of Appeal in the Hatton case is now out of date. It did not contain any detailed guidance as to what managers should do to manage the workplace so as to avoid occupational stress, as opposed to pressure [14] .

The research on Work Related Stress, 2000, published by the European Agency for Safety and Health at Work sets out the principles of stress management. At paragraph 7.4 it states as follows:

1.   Prevention, often control of hazards and exposure to hazards by design and worker training to reduce the likelihood of those workers experiencing stress.

2.Timely reaction, often based on management and group problem solving to improve the organization’s (or managers’) ability to recognise and deal with problems as they arise.

3. Rehabilitation, often involving offering enhanced support (including counselling) to help workers cope with  and recover from problems which exist.

The latest HSE Guidance on Tackling Work Related Stress (2001, HSG 218) recommends employers evaluate the risk of occupational stress by reference to the following factors:

1.Culture;

2.Demands;

3. Control;

4.Relationships;

5.Change;

6.Role;

7.Support, training and factors unique to the individual.

This evaluation may well require employers to take steps that would be costly in terms of time and money and arguably, therefore, not reasonably practicable or reasonable at common law. Especially if the incidence of injury in the workplace caused by occupational stress is slight. In order to trigger a duty at common law injury as opposed to risk of injury has to be foreseeable.

How Might the Propositions in Hatton be decided today?

It seems to me that the following practical propositions on liability [15] 2, 3, 4, 5, 7, 8, 9, 11,  and 12 are in need of further consideration.

Take, for example:

Proposition 2 – a risk assessment may identify a situation of overwork which will need to be remedied before it gives rise to injury, even if the individual employee (who could easily be a workaholic) doesn’t complain. Alternatively, bullying may be a problem. Victims of bullying are well known to keep quiet about their plight.

Proposition 3 – a risk assessment involves consulting with the employee about what he or she considers stressful. Employer’s can no longer turn a blind eye to their staff’s sufferings and deny all knowledge when they are injured.

Proposition 4 – a risk assessment may identify certain types of work as being particularly at risk. For example, Scenes of Crimes officers.

Proposition 5 – a risk assessment should not only look at these factors but others that may identify a risk.

Proposition 6 – a risk assessment may identify a duty to take steps long before it can be argued that it should have been plain enough for a reasonable employer. Defendants often argue that Hatton requires the employee to complain not only about the stress they are experiencing but also the fact that it is affecting their health, before any duty is triggered at common law [16] . They argue that this is a pre-requisite to a duty to do anything. Until then the duty is triggered as it cannot be said that it is plain to a reasonable employer that injury as opposed to stress will occur. This argument fails to take account of:

(i) the commercial reality of the situation in that many employees may be afraid to speak out because they fear losing their jobs or missing out on promotion prospects;

(ii) the medical reality of the situation in that in some cases the last person to know that there is a problem is the employee concerned.

For the risk of injury to be so high that it is plain to a reasonable manager (who is not a psychiatrist and may not have been trained in what signs to look out for to spot occupation stress), means that it is only the most obvious cases where an employer will be held liable at common law. The statutory position requires employers to take a pro-active approach to stress prevention.

Proposition 8 – The principles of prevention set out the sequence and the principles that must be applied by an employer before taking the preventative and protective measures required in order to deal with the hazards identified by the risk assessment.

The employer has to start off by considering ways of avoiding the risk altogether.  If the risk cannot be avoided, it should be combated at source, rather than by applying palliative measures.  Wherever possible, the work has to be adapted to the individual…and so on.

These steps are preventative and designed to avoid the possibility of injury arising.  The Regulations require that this process be undertaken long before any questions of foreseeability of injury arises in any particular case.  If the risk assessment has been performed and preventative and protective measures undertaken, there would be no question of negligence.

The principles of prevention arguably require an employer to take steps which it would not be reasonable for it to take at common law on the grounds of costs. Health and safety questions should not be subordinated to questions of economic considerations alone.

Proposition 9 – the duty upon small and medium sized organisations (less than 50 persons) is reflected in the Directive.

Proposition 11 – the confidential advice service defence. The ACOP paragraph 30(c) emphasises the statutory requirement to combat risks at source, rather than taking palliative measures. Counselling and advice are “palliative measures” and therefore it will not be a defence to a claim of breach of Regulation 4 as evidenced by the ACOP paragraph 30(c).

Proposition 12 – a risk assessment may identify an employee as being over-promoted. This is quite common. In such circumstances, if the employee cannot cope and is risking his/her others health and safety then following the principles of prevention may, in exceptional circumstances, require the employee to be returned to his or her previous job.

In the case of Griffiths v Vauxhall Motors [2003] EWCA Civ 412 Clark L.J. (as he then was) stated in response to a submission that risk assessment may have made no difference stated:

“The whole point of a proper risk assessment is that an investigation is carried out in order to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, which of course includes the extent of any risk of injury, and what can and should be done to minimise or eradicate the risk.” [17]

It has taken nearly 10 years for the Community Law rights of workers contained in Directive 89/391/EEC to be properly recognised in the UK. In the meantime, cases have been decided and guidance given that may well be recognised, as the case-law develops, as incorrect. 

For example, in the Spencer case [18] , in order to avoid the cramped working conditions of the Claimant, Boots would have had to have provided more space. Enough room for two instead of one. The Court appointed expert, Mr Ridd explained, the workspace was originally designed for one operative. This would have been physically possible but not necessarily cost effective. If the principles of prevention had been applied and the test of “practicablility” then, it is arguable that  the result would have been different and the Claimant would have succeeded in his claim against Boots.

Andrew Buchan

7^th September 2006

Notes:

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