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Barber v Somerset County Council, House of Lords, 1 April 2004

1 April 2004
The decision

The House of Lords have overturned the decision of the Court of Appeal by a majority of four to one – Lord Scott dissenting.

The main Judgment was given by Lord Walker. He was influenced by the fact that Mr Barber had had two absences from stress – the first before the summer holidays and the second after the summer holidays. His concern was over the issue of breach, rather than the standard of care set by the Court of Appeal. He found that the Court of Appeal had failed to give adequate weight to the fact that there was a duty on the employer following the first absence to make enquiries with regard to Mr Barber’s problems and see what could be done to ease them. He stated that Mr Barber’s condition should have been monitored and if it did not improve with some slight easing of reduction in his duties, then some more drastic action should have been taken.

This is an unusual decision in which the House of Lords have reversed the decision of the Court below, on a factual basis rather than on the basis that the Court of Appeal was wrong in Law. Lord Walker notes that the Appellant “rightly directed hardly any criticism” towards the Court of Appeal’s composite Judgment. Indeed he described it as “a valuable contribution to the development of the law”. The curious nature of the decision may be divined from the comments of Lord Scott who dissented. In doing so he noted that he agreed, “with everything said” by the Lord Rodger, who provided the other main judgment “save his conclusion that the appeal should be allowed”.

Lord Walker also dealt with the vexed issue of Employer/Employee communication in this field. He noted that “senior employees – especially professionals such as teachers – will usually have quite strong inhibitions against complaining about over work and stress”. He nonetheless set out in full the relevant part of the Court of Appeals Judgment (Paragraph 29 of the Court of Appeal’s Judgment) with approval, remarking that it provided “useful, practical guidance”, although adding that it should not be seen as “having anything like statutory force” and that each case would depend on its own facts. Perhaps surprisingly the issue of Risk Assessment, which loomed large in argument, with reference to the employers duty to be proactive or otherwise, does not play a part in the Judgment save as to the point made by Lord Walker that the senior management team “should have taken the initiative in making sympathetic enquiries about Mr Barber”.

Originally the issue of apportionment of damages was to be dealt with in the Appeal and the parties’ cases were directed towards that issue as well. On the day the House of Lords decided that they did not want to hear that issue and Lord Walker notes that having heard no argument on the subject, he felt it better to express no view on the topic. The Court of Appeals Judgment on that issue stands and Mr Barber’s damages are reduced from over £100,000 to £72,547.

Although the result is obviously a disappointment, we believe much comfort will be taken from the fact that the Court of Appeal’s decision remains good law, and now with the authority of their Lordships House.

Comments

Written by Mark Fowles, Head of the Insurance Department at Exeter.
Mark has particular expertise of Educational cases, specialising in Stress and Dyslexia; and he acted for Somerset County Council in Barber -v- Somerset County Council.

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