Sutherland v Hatton

Sutherland v Hatton
In 2002 the Court of Appeal gave a landmark judgment in four joined stress cases,
Sutherland v Hatton: Somerset County Council v Barber: Sandwell Metropolian Borough
Council v Jones: Baker Refractories Ltd v Bishop £2002j EWCA Civ 76.
The judgment sets out guidelines on an employer’s common law obligations in relation to
workplace stress-related illness. In three of the cases, the employers were not liable for their
employees’ stress-related illnesses. Only with some hesitation, was liability found in the
fourth case.
The Court of Appeal’s decision signalled the way for employers to take a more robust
approach to this type of claim.
The guidelines given by the Court of Appeal in the Sutherland v Hatton case are as follows:
. There are no particular control mechanisms for psychiatric illness (such as
depression) arising from workplace stress.
. The test is the same whatever the employment. No occupation is to be regarded as
intrinsically more dangerous than another to an individual’s mental health.
. One of the crucial questions is whether the effects of a stress-related illness were
reasonably foreseeable in the individuaL. The answer depends on characteristics
particular to the employee and the demands placed on them by the employer.
Several factors are likely to be relevant in relation to foreseeability:
. Is there an abnormal level of sickness absence within a department or job
type?
. Have several employees doing the same job experienced unacceptable
levels of stress? Watch out for high performers who, by definition, appear
to cope with more than average workloads.
. Warning signs from employees will play a fundamental role in establishing
liability because once the employer is on notice of the adverse effects of
stress the consequences are more foreseeable. It is therefore essential
that employers document complaints and actively consider whether
remedial action is necessary.
. Employers will need to be vigilant, looking for the tell-tale signs, although
unless they are aware of any particular vulnerability, employers are
entitled to assume that an employee can cope with the “normal pressures”
of the job. Whilst vigilance is important, employers are not expected to be
clairvoyants. They are entitled to take employees’ actions at face value.
For example, an employee returning to work after a period of sickness
absence, without any further explanation, is usually indicating that he is fit
to resume work.
. Once on notice of a potential stress-related illness, the employer needs to take
remedial steps. The judgment gives a litany of suggestions: sabbaticals,
redistributing work, counselling, buddying.
. A balancing act is involved. An employer will not be expected to redistribute work at
the expense of another employee. Neither are steps expected to be taken which are
unlikely to do any good. So, according to the Court, where there is no other
resolution, if the only effective way of safeguarding the employee may be to dismiss
or demote the employee, then the employer may not be in breach of its duty in
preventing a willing employee from continuing in their job. Employers should however
exercise caution if considering this course of action as it could well amount to a
failure to make reasonable adjustments under the DDA.
. Interestingly, the Court said that an employer which offers confidential help (for
example in the form of counselling) to employees suffering stress is unlikely to be
found in breach of its duty. However it is difficult to see how this step alone will
exonerate an employer placing unrealistic demands on a vulnerable employee.
The House of Lords subsequently overturned one of the four cases, Barber v Somerset
County Council £2004j UKHL 13 and at the same time considered the status of the
Sutherland v Hatton guidelines.
The House of Lords acknowledged that the guidelines were “useful practical guidance” but
emphasised that they did not have statutory force.
Mr Barber was a schoolteacher who took early retirement as a result of a mental breakdown
at work. He claimed that his employer was in breach of its duty of care as his breakdown
was reasonably foreseeable due to a heavy workload and, further, that his employer should
have taken steps to try and prevent the breakdown. Mr Barber did not alert his colleagues to
the fact that he was suffering for several months. The first indication was when he took three
weeks off work, citing “overstressed/depression” as the reason for his absence. On his
return to work, nobody approached him to discuss the illness. Instead he arranged meetings
with his head teacher and the two deputy heads, all of whom were largely unsympathetic
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and took no steps to improve or consider his situation. The following term Mr Barber’s
workload increased and he suffered a breakdown.
It was recognised that Barber was not a clear case of a flagrant breach of duty. However,
Lord Walker, in the leading judgment, held that the Court of Appeal had given insufficient
weight to the fact that Barber, a conscientious worker, had taken three weeks off work due to
stress and depression. This triggered the duty to take some action. At the very least senior
management should have enquired about his problems and made some reduction in his
workload. Lord Walker added that Mr Barber’s condition should have been monitored, with
more drastic action required if it did not improve. Mr Barber was awarded a sum of £72,547.
Barber is yet another reminder to employers that, as soon as they are put on notice of an
employee suffering from mental health problems at work, they must take action to try and
avoid any escalation of the employee’s illness and consequent liability for breach of their
duty of care.