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Dickins v O2 Plc, Court of Appeal, 16 October 2008

3 November 2008
The issues

Stress at work – Barber v Somerset County Council – Hatton v Sutherland.

The facts

The Claimant began work for the Defendant firm in 1991 as a secretary. By 2000 she had been promoted to become a management accountant, although she had no formal qualifications. She worked in an office in Slough and moved to Slough to be near her work. Before 2000 the department for which she worked was transferred to Hemel Hempstead and she was obliged to travel around the M25 each day, sometimes each journey taking as long as an hour and a half. In August 2000 she was promoted to the position of Finance and Regulatory Manager. Her new position involved unfamiliar work, which she found very demanding. She did not receive training or the support she had expected. In November 2000 she had a minor crisis at work, burst into tears and had to go home, being off for 2 work days. On her return it was agreed that she would not have to deal with that particular item of work again and her work was confined to the preparation of management accounts. In her annual review managers noticed that she had not coped with the audit which had been “a bridge too far”. In early 2001 she began to suffer from Irritable Bowel Syndrome and was off work from time to time in the following months. In March 2001 she applied for an internally advertised post which would enable her to return to the Slough office. The Claimant was aware that this job would entail some audit work of a nature similar to that which she had found difficult before. The job description required accountancy qualifications, which she did not have. Nonetheless, she was appointed. She began the new job in August 2001, at which point she was also undergoing counselling arranged by her GP because it was thought that her IBS might be stress related. She was to be trained and supported by Anna Saunders, a Chartered Accountant. Ms Saunders was unaware of the counselling. There was not as much training or support as the Claimant had hoped for an in December 2001 Ms Saunders was moved to another department. The Claimant had to cope with the February 2002 audit alone. She had to work long hours and was exhausted and at the end of her tether by the time it was finished. In March 2002 she had a short holiday and on her first day back spoke to her manager, Allen Brown, about the possibility of moving to a different and less stressful job. She said the volume of work was too much and she needed help. He asked her to wait for three months because there were no vacancies at present. The Claimant continued at work feeling exhausted. She was late for work almost each day as she found it difficult to get up. She was assigned, at her request, to a different manager, Keith Brown. He was supposed to provide her with additional help and support but the Judge found that it did not amount to very much. In Aril 2002 she had a meeting with Keith Brown in which she said she wanted 6 months off as a sabbatical, being “stressed out”. Keith Brown suggested the Claimant should contact the counselling service available to employees of the company and that he would make enquiries of Human Resources as to the procedure for arranging a sabbatical. The Claimant did not go to the counselling service. Keith Brown told Allen Brown, who was Keith Brown’s line manager, about the conversation that he had had with the Claimant. On the 30th May 2002 the Claimant had an annual appraisal with Allen Brown. She told him she was feeling very stressed and was having counselling. She renewed her request for a 6 month sabbatical, repeating her description of her symptoms. It was agreed that she would be referred to Occupational Health. The referral to Occupational Health was not acted upon and the Claimant did not hear from them. A few days after her appraisal she felt unable to go into work – she was shaking and her IBS was bad. In June 2002 she telephoned Occupational Health from home but was told that they had not received any paperwork from Keith Brown. The following week she tried to return to work but became very sweaty and started trembling and was signed off as unfit for work on account of anxiety and depression. She did not return to work and her employment was terminated in November 2003. In June 2005 she brought a claim for personal injuries against the Defendant. The matter came before the Judge in the Slough County Court who gave Judgment for the Claimant in the sum of £109,754.22. In assessing damages, the Judge took account of other non-tortous factors which said had contributed to the Claimant’s illness and he reduced the damages by 50%.

The Defendant Appealed to the Court of Appeal.

The decision

The Defendant argued that the Claimant’s evidence had not gone far enough as to put the employer on clear notice that unless something was done, the Claimant’s health would break down. In particular the Defendant argued that the Judge had failed to distinguish between signs of stress and signs of impending harm to health. However, in the view of the Court, the Judge had been entitled on the evidence to conclude that the Claimant was under extreme stress and was “about to crack up” and that this should have been plain to her two managers, who did nothing of substance about it.

The Judge had not found all 4 allegations of negligence proved (which related to incidents in the past, such as the November 2000 incident and the 2002 meeting) but in fact had found only the final allegation, that relating to the 23rd April 2002 proved. He had accepted the Claimant’s account of those other incidents and had taken them into account as part of the history but there was nothing to suggest that he considered that the employer was on notice of an impending breakdown in health until the 23rd April 2002. He was entitled to take the whole of the background into account when considering what the employer’s reaction should have been to what the Claimant said on that date. The Defendant also argued that the Judge should have taken into account the fact that the Claimant had been offered a confidential counselling service. In Hatton v Sutherland, it had been made plain that the advantage of such a service was because many employees were unwilling to admit to their line managers that they were not coping with their work for fear of damaging their reputation. However, in this case, the Claimant had not been afraid to tell her line manager that she was “at the end of her tether”. She was already receiving counselling through her own doctor. Given the situation that the Claimant was in, a mere suggestion that she seek counselling could not be regarded as an adequate response. The Court of Appeal in Daw v Intel Corporation had already made it clear that reference to counselling services in Hatton did not make such services a panacea by which employers could discharge their duty of care in all cases. This employee’s problems could only be dealt with by management intervention.

The Defendant also argued that there was no evidence on which the Judge could conclude that taking particular steps would have done any good. The Court concluded however that the Judge was entitled to infer that a reference to Occupational Health would have been of value, in that it would have set in motion a proper professional consideration of her problems by a doctor with specialist experience in Occupational Health matters. The Claimant had asked for “a sabbatical”. Neither of her managers knew what a sabbatical was and one of them said he would have to find out what the procedure was for requesting one. The Judge was entitled to conclude that the Claimant was asking for a lengthy time off work because the short holiday she had taken in March 2002 had not enabled her to recover from her feelings of exhaustion.

The Defendant argued that it was not open to the Judge to hold that “sending her home” would have done any good. The psychiatrists called in the case agreed that even 6 months at home would not resolve her problems because if she were to return to work to the same job with the same conditions, the same pressure would build up and she would have a breakdown in any event. That evidence did not deal with whether sending the Claimant home would have prevented the sharp deterioration in health which occurred in June 2002. The psychiatrists were saying that more steps were needed to resolve her problems in the long term. In addition to a rest she needed to have adjustments made to her job. That however was not the same as saying that sending her home would not have been effective in preventing the June breakdown. The Judge was entitled to infer that to send her home would be beneficial as it would remove the pressure she was under.

As to causation, it was clear, reading the Judgment as a whole, that the identified breach of duty had made a material contribution to the severe illness which began in June 2002. There were however other factors in play. The Claimant’s vulnerable personality was an underlying cause of her breakdown, as was her relationship with her partner; so might her IBS have been, although that could be seen as an effect of stress rather than the cause of it. Following the guidance given in Hatton, the Judge took those other matters into account when apportioning the damages as to 50% being due to the tort and 50% due to non-tortous matters. In Hatton, Hale, LJ had said that a Claimant could establish causation by showing that the tort had made a material contribution to the injury. She went on to say that where multiple causes were at work in a case of psychiatric injury, a sensible attempt at apportionment should be made. She recognised that most cases of apportionment involved divisible injuries but noted that there were other cases where that was not so – for example, Rahman v Area Rose. The Court doubted the correctness of this approach. The matter had not been fully argued before the Court but its provisional view was that, in a case which had to be decided on the basis that the tort had made a material contribution but where it was not scientifically possible to say how much that contribution was and where the injury to which it led was indivisible, it would be inappropriate simply to apportion the damages across the board. It might be appropriate to bear in mind that the Claimant psychiatrically vulnerable and might have suffered a breakdown at some time in the future, even without the tort, and there might then be a reduction in some heads of damage for future risk of non-tortous loss. Neither party had however criticised the Judge’s approach to apportionment and there was therefore no more to say.

Appeal dismissed.

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