Availability of confidential counselling may not defeat claim; ‘obvious inference’ was that stress was work-related.
In the recent case of Dickins v O2, the claimant had been promoted above her capabilities. She was stressed and, among other things, told her manager that she was 'at the end on her tether'. He said he would see if he could get her a sabbatical but, before he could, she suffered a breakdown. The High Court awarded her £109,754 compensation for psychiatric injury on the principles laid down in Hatton v Sutherland. In doing so, the judge reduced the compensation he would have given by 50% because there were other causes of stress (her house had flooded) and a chance of her having a breakdown for other reasons.
The employer appealed to Court of Appeal, but the appeal has been unsuccessful.
The employer argued, following the case of Daw v Intel, that it had a confidential counselling service for employees that she could have used but did not.
The Court of Appeal said that this made no difference in this case. The employee had not been afraid to tell her manager that she was at the end of her tether. He should have sent her home straight away - even though she had no doctor’s certificate saying that she was unfit to work.
The court was then asked to consider the extent to which the employer's failure to act had made a material contribution to the onset of the employee’s illness. The court said that 'the obvious inference' was that it was her problems at work that had tipped her over the edge.
Points to note –
- This decision suggests that, in future, in cases where they may be other reasons for the stress, claimants can ask the court to make the 'obvious inference' that it must be work-related rather than to strictly prove their case.
- Although they did not alter the compensation awarded by the High Court, the Court of Appeal was troubled about the way the judge had apportioned it on a percentage basis. Compensation may be reduced where it can be shown that the breakdown would have occurred sooner or later in any event. However, it is possible for an employer to be regarded as having caused the whole of any breakdown to which it has only ‘materially contributed’. The Court of Appeal suggests that this is the way in which cases where work-related stress has materially contributed to’ psychiatric illness should be considered. This again is bad news for employers. Any employee claim of work-related stress should be very carefully addressed. We shall be happy to advise further.