Foresight saga: the onus is on employees to raise their concerns if they feel they are under excessive stress. But employers can't shirk their duty of care where the risk is predictable.
| Author | Nickson, Sue |
| Position | Legal |
Only two months ago, the Court of Appeal in Sutherland v Hatton had given hope to employers that the rising tide of stress claims would be stemmed, but further cases this month have shown the limitations of its decision. The resounding message from the Sutherland ruling was that the employer was entitled to assume that the employee could withstand the normal pressures of the job. The court put the onus upon the employee, at least to a point, to raise concerns and make the employer aware that there was a health risk, or, failing that, to quit. Otherwise, stress injuries are not generally foreseeable--and without foreseeability there can be no liability.
In Green v Argyll and Bute Council a social worker with a heavy caseload suffered a mental breakdown. He brought proceedings against the council, claiming psychiatric injury. The Court of Session held that the employer's duty of care could include the provision of appropriate supervision. In this case there was evidence of a lack of proper supervision for Green, which was potentially a breach of that duty. But the employer was not deemed to be liable, because there was nothing to suggest that it should have predicted that this failure on its part could damage his health. Green could have told his employer that he was having trouble coping with his work, but he chose not to.
In the case of Young v Post Office, Young went sick owing to stress caused by the problems he faced in coping with new work systems. He was put under no pressure to return to work, but still volunteered to do so around five months later. His employer told him that he was initially free to do whatever he felt he could manage in order that he could make a gradual return to full duties without endangering his health. Unfortunately, when Young returned he took on so much work that within two months he became ill again. He alleged that the Post Office had been negligent.
The Court of Appeal held that the Post Office knew he was at risk because he had already been absent...
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