Six Continents Retail Ltd v Hone
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,LORD JUSTICE WALL,THE MASTER OF THE ROLLS |
| Judgment Date | 29 June 2005 |
| Neutral Citation | [2005] EWCA Civ 922 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2004/2128 |
| Date | 29 June 2005 |
[2005] EWCA Civ 922
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(HHJ GRAHAM JONES)
Royal Courts of Justice
Strand
London, WC2
The Master of the Rolls
(Lord Phillips)
Lord Justice Dyson
Lord Justice Wall
B3/2004/2128
MR LAWRENCE WEST QC (instructed by Messrs Eaton Ryan and Taylor, Birmingham) appeared on behalf of the Appellants
MR BRIAN LANGSTAFF QC AND MR DAVID CALLOW (instructed by Messrs Leo Abse & Cohen, Cardiff) appeared on behalf of the Respondent
This is an appeal by the defendants against the order of His Honour Judge Graham Jones dated 24th September 2004 sitting at Swansea County Court whereby he gave judgment in favour of Mr Hone in the sum of £21,840 damages for psychiatric injury caused by stress at work.
Mr Hone commenced employment with the defendants as a Licensed House Manager in 1995. On 20th August 1999 he started to work as a Licensed House Manager for the defendants at their Moat House in Luton.
Mr Hone's complaint in this litigation is that his workload was excessive and that this eventually caused him to suffer stress and psychiatric injury. On 15th May 2000 he saw his general practitioner complaining of headaches and insomnia. On 17th May he was referred by his general practitioner to a consultant neurologist. On 28th May he collapsed at work following giddiness and chest pain and has not worked for the defendants since that date.
His case in a nutshell is that his psychiatric injury was caused by stress which in turn was attributable to his being required to work excessive hours without adequate support. He kept records which purported to show that in the period from the end of March until the middle of May 2000 he was working mainly between 89 and 92 hours per week, seven days a week. The lowest recorded figure, according to his records, was 82 hours for the week ending 8th April.
In respect of the period up to April 2000 the judge found that there were four employees who were in key positions, any of whom could have deputised for Mr Hone so as to allow him to take time off from work. These were Mr Babbs, Mrs Mavis Milne, Mr Gareth Lewis and Mrs Hone. The judge accepted the evidence of Mr Kiernan, the defendant's retail business manager, that had Mr Hone planned the work during this period as he ought to have done, he would have created time off for himself. There was no need for him to work the hours that he claimed he worked. Indeed the judge said it was not easy to understand how he actively and properly filled those hours up until April 2000. Moreover, the judge found that in this period Mr Hone had suffered no harmful reaction to the pressures of work and none was reasonably foreseeable. He said at paragraph 64 of his judgment:
"There were no signs from Mr Hone himself of impending harm to health. Indeed, the contrary was the case. Though Mr Hone did complain of working long hours, that has to be put into the context of his lack of planning of the work and Mr Swain's evidence that senior management often heard from licensed house managers that they were working too many hours, they were not earning enough money and that they did not have enough staff. It was part of the process of LHMs having an opportunity to 'let off steam'."
But, the judge said, it was the events of April 2000 which were critical in this case. He said at paragraph 65:
"Two of the key employees (Mr Babbs and Mr Gareth Lewis) then left. Mrs Milne's administrative role came to an end. I find that these events did impose extra burdens and pressures upon Mr Hone, not to the extent he claims, but to an extent which is significant in relation to a claim of this type. Because of Mr Babbs' departure, Mr Hone did have to spend extra time in the kitchen. The departure of the other key workers meant that, even if he had planned the work to the best advantage, he would not have been able to arrange sufficient time off. There were problems in recruiting staff in the Luton area. An assistant manager had still not been recruited."
The judge then turned to the important meeting that was held between Mr Reynolds and Mr Hone on 19th April. Mr Reynolds had become the Operations Manager of the defendants in April of that year. The meeting was requested by Mr Reynolds who had been told by Mr Kiernan that Mr Hone was refusing either to opt in or to opt out of the Working Time Regulations 1998 because of "lack of management support". Mr Reynolds had been told by Mr Kiernan that this was a reference to Mr Hone's complaint that there was no assistant manager. Mr Reynolds also knew that Mr Hone was saying that he was having to work very long hours and he had access to Mr Hone's records of the numbers of hours worked.
In the course of his cross-examination, Mr Reynolds was asked questions about the Working Time Regulations and the exchanges included the following:
"Q. It was obviously—with your robust knowledge, as you put it, of the Working Time Regulations, that presumably would sound alarm bells to you?
A. Absolutely.
Q. Because as we know, and you would have known, in addition to the 48 hour maximum working week that was of primary concern under the regulations, there's also the provisions in relation to having rest days and clear 24 hour days off in a seven day week.
A. Yes.
Q. So that would be the first thing that would spring to your mind at this time when you were told that you didn't have an assistant manager?
A. Yes."
Then a little later.
"Q. Oh yes of course, no, all I'm saying is that with your knowledge of the Working Time Regulations that would particularly ring alarm bells with you wouldn't it?
A. Yes."
The judge also found that even though Mr Hone had begun by this time to suffer from headaches and was probably taking painkillers, he made no mention of this to Mr Reynolds at the meeting, but he did tell Mr Reynolds that he was working excessively long hours and was tired. On the basis of what he was told at the meeting of 19th April, Mr Reynolds accepted that Mr Hone needed help. Indeed the judge found at paragraph 76:
"Mr Reynolds appears to have accepted, as a result of the April meeting, that an assistant manager should be appointed."
Yet apart possibly from some occasional relief, as to which the judge said the evidence was not clear, he held that no help was provided. In particular no assistant manager was in place until after Mr Hone's collapse. It is right to say that Mr West has to some extent challenged this aspect of the judge's findings. He has taken us to some of the material that was before the judge and has submitted that in fact some additional help was provided and that the position was not quite as bleak from Mr Hone's point of view as suggested by the judge. For example, he has pointed to material which indicates that Mr Babbs was still there until 8th April at least and that by the week commencing 23rd April Mr Cobain was present. But as I read the judgment, the critical finding made by the judge on this aspect of the case was that the request for an assistant manager (which lay at the heart of the complaint made by Mr Hone) had not been acceded to by the time he collapsed. There is no challenge, as I understand it, by Mr West to that central finding.
It was on this material that the judge found that at and after the meeting of 19th April an injury to Mr Hone's health attributable to stress at work was reasonably foreseeable—that appears from paragraphs 68 and 70 of the judgment. The judge also held at paragraph 73 that the defendants were under a duty to take all reasonable steps to ensure that, not having obtained Mr Hone's written agreement to do otherwise, he did not work for more than 48 hours per week. The judge said that it was well within the considerable resources available to the defendants to have provided as a first step and with effect from the third week in April an assistant manager so that Mr Hone had two days off each week. Instead the judge found that the defendants stood idly by until Mrs Hone telephoned Mr Kiernan telling him that Mr Hone was sick and had headaches and chest pains some time in the middle or the later part of May.
In this appeal, Mr Lawrence West QC challenges the finding by the judge that an injury to Mr Hone's health as from 19th April 2000 was reasonably foreseeable. That is the sole issue on the appeal. It is accepted by the defendants that the judge directed himself correctly and that in all other respects his findings and conclusions cannot be challenged.
The judge referred to the leading decision of this court in Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613, where giving the judgment of the court Hale LJ identified a number of what she called practical propositions which provide valuable guidance as to the approach that should be adopted in cases of this kind. That guidance was for all practical purposes endorsed completely by the House of Lords in Barber v Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089.
The propositions which are material to this appeal are the following and are set out at paragraph 43 of the judgment in Hatton v Sutherland:
"(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer's liability apply.
(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components...
To continue reading
Request your trial
-
John Yapp v Foreign and Commonwealth Office
...[31]; [43(7)]. The proposition quoted was cited with approval by Dyson LJ (with whom Wall LJ and Lord Phillips MR agreed) in Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; [2006] IRLR 49, [15]. In Barber (which was an appeal on one of the Sutherland cases) Lord Walker said the propos......
-
Pakenham-Walsh v Connell Residential
...in the Directive as was a 6 day week of 45 hours, which would also allow a rest day. 40 In Hone v Six Continents Retail Limited [2005] EWCA Civ 922, the employers sought to set aside a finding by the trial judge that injury to Mr Hone's health was reasonably foreseeable upon an application ......
-
Liability for Work Stress: Kohler Ten Years On
...School Trust Ltd [2005] EWCA Civ 765; Heyward v Plymouth Hospital NHS Trust [2005] EWCA Civ 939; Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; Pakenham-Walsh v Connell Residential (Private Unlimited Company) [2006] EWCA Civ 90; Deadman v Bristol City Council [2007] EWCA Civ 822; Con......