Stress at work: Are the practical propositions set out in Hatton v. Sutherland still useful?

The practical propositions set out in the case of Hatton v. Sutherland [2002] ICR 613 have been used as the principal guidance for the liability of employers in stress at work cases since 2002.

This article examines how matters, both legal and practical, have developed since Hatton and argues that they have now been superseded.

A) Legal  Developments

Breach of Statutory Duty

Management of Health and Safety at Work Regulations 1999

The Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 (2003 No. 2457)[1]

The exclusion of civil liability for breach of the Management of Health and Safety at Work Regulations 1999 (which replaced the 1992 Regulations[2]) has been removed from the 27^th October 2003 for employees.

The standard of care and breach of statutory duty

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.

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? If yes:

4.       Were these complied with? If not,

5.      What preventative steps should have been taken?

6.      When should they have been taken?

7.      Would those steps have made any difference to the Claimant’s injuries?

B) 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.[3]

How should stress be managed?

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.

Since 1995[4] the HSE has advised that stress should be treated like any other occupational health risk. An employer’s Risk Assessment should include the risks of psychological as well as physical injury.

For Claimant’s injured after December 1999, employer’s must carry out a risk assessment pursuant to the Management of Health and Safety at Work Regulations 1999 Regulation 3. Prior to undertaking or reviewing the risk assessment the employer is required to carry out a systematic general examination of the effect of their undertaking, their work activities and the general condition of the premises.[5] The risk assessment is carried out to identify the risks to health and safety. It should identify how the risks arise and how they impact on those affected.[6] This requires the employer to consult extensively with the workforce to find out if stress is a problem in the workplace.[7] The Approved Code of Practice requires the risk assessment to be “suitable and sufficient.”[8] This means that employers are expected to take reasonable steps to help themselves identify risks, eg by looking at appropriate sources of information, such as relevant legislation, appropriate guidance (which includes HSE guidance and sector specific guidance), reading the trade press or seeking advice from competent sources.[9]

In practice the risk assessment needs to be practical and take account of the views of employees and their safety representatives[10]. The employer should follow the principles laid out in the HSE’s publication “5 Steps to Risk Assessment”.[11] 

The five steps are:

1.      Identify the hazards;

2.      Decide who might be harmed and how;

3.      Evaluate the risk by:

a.      Identifying what action is already being taken;

b.      Deciding whether it is enough; and

c.      If it is not, deciding what more needs to be done;

4.      Record the significant findings of the assessment; and

5.      Review the assessment at appropriate intervals.

The risk assessment should ensure all aspects of the work activity are reviewed, including routine and non-routine activities.[12]  This should take place every six months but if this is too frequent – at least annually.[13]

The guidelines for the management of occupational stress are generic. They are common to most jobs. Employers, should have a health and safety policy. This ought to refer to the risk of occupational stress and the system that an employer has in place for reporting and managing it.

This process 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.

The latest HSE Guidance on stress is: “Tackling Work Related Stress, A Manager’s Guide to Improving and Maintaining Employee Health and Well-Being.” (2001, HSG 218) It recommends employers evaluate the risk of occupational stress by reference to the following 7 risk factors:

1.      Culture;

2.      Demands;

3.      Control;

4.      Relationships;

5.      Change;

6.      Role;

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

These risk factors are often present in one form or another in stress cases.

Real solutions, real people: A Managers’ guide to tackling work-related stress[14], HSE 2003

This guide pack, published by the HSE, is intended to provide guidance for managers so that solutions can be developed in the workplace to the problem of occupational stress identified in the risk assessment.

The guide pack consists of a copy of:

1)     "Tackling work-related stress: A managers guide to improving and maintaining employee health and well-being";

2)     "Tackling work-related stress: A guide to employees";

3)     An Action Plan;

4)     seven prompt cards;

5)     18 case studies;

6)     the booklet "Real solutions, real people: A managers’ guide to tackling work-related stress".

This guidance has to be read in addition to the guidance on Tackling work-related stress published in 2001 by the HSE, which concentrates on identifying the risk of occupational stress through the risk assessment process.

The 18 case studies give examples of what other organisations have done to successfully tackle work related stress.

Defining the problem

The HSE advises that employers should discuss the issue of work-related stress with employees and their representatives.  This will often give the best understanding of the challenges locally and provide a greater breadth of ideas and knowledge when it comes to finding the solutions.  It suggests that one way of defining the problem is for employers to organise discussion groups where work-related stress can be discussed. Prompt cards are provided to help run the discussion group. The focus of the discussion should be on solutions.

Employers are advised to consider:

• Will the participants be comfortable with each other?
• can they share their views freely?  For example, if there is a problem with relationships between different grades of staff you might consider running discussion groups with anonymised feedback.
• how many  people in the discussion group? HSE’s experience suggest that groups of between 6 and 10 work well. This is particularly true where the topics are likely to be sensitive or complex and you are looking to develop solutions.
• who should manage the discussion? Role and selection will vary from group to group depending on the likely nature of the discussion.  Everyone should be aware of the purpose of the discussion and given the opportunity to contribute and propose solutions.
• ensuring confidentiality.  Some staff may not feel comfortable with expressing their true thoughts and feelings in front of other members of staff.  You may wish to consider providing a box where people can write about their specific concerns on any questionnaire issued, will arrange an alternative power for these concerns, such as via a safety representative.    

 

Using the intervention prompt cards

The guide contains a series of 7 prompt cards (introduction, demands, control, support, relationships, role, change) to help run the discussion group.  The prompt cards contain practical suggestions which could help to overcome the issue of occupational stress identified through the risk assessment.  The cards can be used in conjunction with the case studies to help stimulate discussion.  The focus of the discussion should be on solutions.  Using the prompt cards should not dissuade the group from generating its own ideas for practical solutions.  The HSE reminds employers that it is important to record the challenges identified and the actions intended to be taken by managers and the group.  It is useful to record dates for review to ensure that they are having a positive effect.

The Management Standards (HSE, November 2004)

The management standards do not replace HSE’s existing stress guidance documents - "Tackling Work-related Stress: A guide for employers" (HSG218) and "Real Solutions, Real People".

It provides further practical information, advice and tools on how to assess the risks from work related-stress in organisations.

It has a pro-forma stress policy which can be downloaded from the HSE website. There is a questionnaire for staff which can be evaluated using the toolkit provided to establish whether the employer has a stress problem.

Are the Practical Propositions in Hatton relevant today and, if so, how would they probably be decided?

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 a 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.”[15]

The first point to make is that the Courts should recognise that for injuries occurring after 27^th October 2003 the practical propositions have now been superseded by statute and the detailed guidance of the HSE.

Typically Defendants will try to argue that the ACOP notes that employers are not expected to anticipate risks that were “not foreseeable”.[16] But it is clear from the guidance that this is only after the employer has undertaken steps 1 – 3 of the 5 steps to risk assessment. They have taken steps to find out if there is a problem, identified individuals who might be affected and evaluated the risk. If there is no significant risk worth recording then the employer does not have to do so neither does it have to take preventative steps.[17] This reflects Article 5(4) of the Directive which absolves employers from unforeseeable risks (see above).

The following practical propositions In Hatton on liability[18] 2, 3, 4, 5, 7, 8, 9, 11,  and 12 are now of suspect authority for the reasons given below.

Proposition 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).

Therefore, at common law, before an employer has to do anything, the employer has to foresee that the Claimant (as opposed to anyone else) was going to suffer a psychiatric injury (as opposed to stress) caused by work (as opposed to other factors). This is very difficult to prove in practice. Most employers have little understanding of psychiatric causation. Therefore the courts are reluctant, after the event, to criticise an employer who fails to spot an impending breakdown. This means in practice that someone can be on the point of a nervous breakdown before their behaviour displays signs that are plain to a reasonable employer[19]. By then it may be too late to do anything about it.

The Hatton case thus arguably encourages employers to remain ignorant of the psychology of work, lest they be taken to have sufficient knowledge to make them liable because they should have foreseen the consequences. This encourages a diminution in standards, a “rush to the bottom,” as opposed to the intention of the Framework Directive and the HSE which is to improve standards of health and safety.

The question to be asked for Claimants injured after 27^th October 2003 is whether a risk assessment (which has to take place at least ever six months for the first year and thereafter reviewed annually) would have identified occupational stress (as opposed to injury) at work and whether the Claimant should have been identified by the assessment as a person who could be harmed. Stress is the hazard that needs to be risk assessed. This will require consultation with the employee. The guidance[20] specifically refers employers to their statutory duty to consult with employees (non unionised) or their health and safety representative (unionised) about their health and safety, in good time, as required by the Safety Representatives and Safety Committees Regulations 1977 and the Health and Safety (Consultation with Employees) Regulations 1996.The guidance[21] advises that doing the following may help an employer to get ready to undertake the assessment:

• Talk to all your staff about work-related stress and explain that you want to identify if there is a problem in your unit;
• Explain that you are setting up a group to help you (which includes trades union/employee representatives, your units health and safety officer (if you have one), one or more supervisors or managers in you unit to co-ordinate action, and, if available, someone from your occupational health service);
• Share what you are trying to achieve with staff and then the group and explain that the first step is to undertake a risk assessment;
• Ask the group to undertake the assessment using the five steps listed in paragraph 22 (the 5 steps to risk assessment);
• Agree a date by when you want to see the key findings of the risk assessment.

This is a sea-change from what is required in Hatton and what currently happens in most places of work. Although this may change if the Courts enforce the Guidance properly. The Guidance follows the steps in “5 steps to risk assessment.”

First, an employer has to take pro-active steps to identify in broad terms if they have a stress problem.

Step 1 of the guidance is entitled “Identify the hazard”. It gives examples of several methods by which an employer has to look for and identify whether or not stress is a hazard in the workplace. These include quantitative methods (performance appraisal, focus groups, managing attendance, staff turnover, and questionnaires) and qualitative methods (sickness absence and productivity data). Employers are advised not to rely upon just one method of measuring work-related stress but are urged to formulate an overall picture[22].

The 7 risk factors are:

Factor 1: Culture – of the organisation and how it approaches work related stress;

Factor 2: Demands – such as workload and exposure to physical hazards;

Factor 3: Control – how much say does the person has in the way they do their work;

Factor 4: Relationships – covering issues such as bullying and harassment;

Factor 5: Change – how organisational change is managed and communicated in the organisation;

Factor 6: Role – whether the individual understands their role in the organisation; and whether the organisation ensures that the person does not have conflicting roles;

Factor 7: Support, training and factors unique to the individual:

• Support – from peers and line management;
• Training – for the person to be able to undertake the core functions of the job;
• Factors unique to the individual – catering for individual differences.

If the risk assessment does identify a problem the employer has to comply with the principles of prevention to reduce the risk before it gives rise to injury.

Therefore, under the statute the employer has to be pro-active and cannot wait until someone is about to have a breakdown before doing something.

Proposition 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.

An employer ought reasonably to comply with the statutory duty to carry out a risk assessment. This, for the reasons given in proposition 2 above, involve’s consulting with the employee about what he or she considers stressful. Unscrupulous employer’s can no longer turn a blind eye to their staff’s sufferings and deny all knowledge when they go off sick.

Proposition 4 – The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health

A risk assessment may identify certain sectors as being particularly at risk. For example, Scenes of Crimes Officers.

Proposition 5 – Factors likely to be relevant in answering the threshold question include:
(a) 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?
(b) 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?

This was Lady Hale’s attempt at commonsense guidance. This has now been superseded by “Tackling work related stress,”[23] published in May 2001. A risk assessment should not only look at these factors but others that may identify a risk.

Proposition 6 – 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.

If the employer does comply with the guidance “Tackling work related stress”. ie provides an organisational culture where employees feel they can explain that they are suffering from stress without fear of victimisation, where they have been properly trained in stress awareness so that they can recognise it in themselves, and the employer has taken pro-active steps to consult with them and the resultant risk assessment has not shown any significant risk of injury due to occupational stress because the Claimant has not disclosed his or her feelings then this proposition remains good. But a lot more is now required of employers than just asking an employee if they are suffering from stress.

Proposition 7 - 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.

The duty to take steps is now triggered when the risk identifies stress as a hazard. The 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 to do something about it. Defendants often argue that:

a)                           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[24].

b)                           this is a pre-requisite to a duty to do anything.

c)                           until then 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.

“Tackling work related stress,” published in May 2001 does take these factors into account. 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 now requires employers to take a pro-active approach to stress prevention.

Proposition 8 –  The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk.

The principles of prevention set out the sequence and the principles that must be applied by an employer whilst taking the preventative and protective measures required in order to deal with the hazard of stress 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 mental symptoms (lack of sleep, anxiety attacks, loss of concentration etc) and 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 size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

This is reflected in the Directive. The duty upon small and medium sized organisations (less than 50 persons) is less than larger organisations. The guidance of the HSE reflects this distinction. The guidance for employers of less than 50 staff is set out in “Help on work related stress, a short guide”, INDG 281. This was published in August 1998. It is in question and answer form and identifies work related stressors as:

a)               Doing the job;

b)               Responsibilities;

c)               Relationships;

d)               Balancing work and home;

e)               Working conditions;

f)                 Management attitudes.

It then gives practical advice on what managers can do.

 It highlights that stress is bad for you whilst pressure can be good.

Proposition 10 – 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.

The risk assessment ought to identify what steps should have been taken. In the absence of such an assessment the Court will need to hear expert evidence upon when it should have taken place or been reviewed, what it would have consisted of and what hazards it should have identified and what preventative steps it should have recommended.

The HSE guidance “Real solutions, real people,” HSE 2003, and the Management Standards, HSE 2004, also provide useful material to judge what steps should have been taken.

Proposition 11 – 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.

The Management of Health and Safety at Work Regulations 1999, 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 providing such a service in the absence of preventative steps will not be a defence to a claim of breach of Regulation 4.

Proposition 12 – If 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 If the employee is not capable of performing the tasks required there may also be a breach of Regulation 13 of the Management of Health and Safety at Work Regulations 1999. A risk assessment may identify an employee as incapable of doing the job – even with proper training eg having been over-promoted. 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 or sacked on the grounds of capability. This is preferable to doing nothing and letting the employee have a nervous breakdown. With all the consequences that flow from that.

Proposition 13 –  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. The breach of statutory duty is the failure to carry out a suitable and sufficient risk assessment and take preventative steps, as required by the Management of Health and Safety at Work Regulations 1999, regulations 3 & 4. The HSE guidance: “Tackling work related stress” HSE 2001, “Real solutions, real people,” HSE 2003, and the Management Standards, HSE 2004, also provide useful material to judge what steps should have been taken.

Proposition 14 – 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.

It is enough to show that occupational stress materially contributed to the harm if a suitable and sufficient risk assessment should have identified preventative steps that were not taken to avoid the harm suffered.[25]

ã Andrew Buchan
13^th October 2006