Case Study of Appeal Court: Role of Mental Breakdown

Summary of facts

1. Mr. Simons (‘the Appellant’) worked for Berminster County Council (‘the Council’), as a teacher at Brumington Hall School. He is a perfectionist and this made him particularly vulnerable to occupational stress.
2. Mr. Simons was advised by his doctor to seek a much less stressful form of employment immediately, as he was at risk of suffering a mental breakdown. Despite this advice, Mr. Simons elected to continue with his work as a teacher. He was dedicated to his students.
3. The school authorities were informed by Mr. Simons of his doctor’s comments regarding his vulnerability to stress at work. As a result, the school authorities reduced Mr. Simon’s workload as much as possible and encouraged him to use their counseling service.
4. Mr. Simons eventually suffered a breakdown and sued the Council for negligence, applying the Fairchild [2003] 1 AC 32 principle and contending that the Council should have dismissed him from work, in his best interests, as soon as they became aware of his doctor’s comments.
5. At trial, the judge found for Mr. Simons based on the principle in Fairchild.
6. The Appellant appealed to the Court of Appeal who dismissed the Council’s appeal and now appeals to the Supreme Court.

Grounds of appeal

1. 7. That the trial judge erred in applying Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010. This error had led the trial judge to wrongly conclude that the Council had breached its duty to Mr. Simons by failing to dismiss him. The trial judge should have been aware of statements of principle in other cases; which rightly indicate that an employer cannot be in breach of duty for failing to dismiss an employee who wanted to continue working despite medical advice.
2. 8. That the trial judge also erred in concluding that the Fairchild principle applied on the facts of the case: it is the general ‘but for’ causation rule, and not some Fairchild relaxation of it, that applies to occupational stress cases.

Appellant outcome

1. 9. The best outcome for the Appellant would be for the Supreme Court to allow the appeal and the conviction of duty of breach in negligence be quashed, on the basis that Coxall was wrongly applied and led the judge to incorrectly conclude that Council had breached its duty to Mr. Simons.

Respondent outcome

1. 10. The best outcome for the Respondent would be for the Supreme Court to dismiss the appeal, and uphold the decision of the trial court and the Court of Appeal. The Appellant should be found guilty of negligence in its breach of duty owed for failing to dismiss the Respondent from work.

Legal issues

Legal Background

1. In relation to occupational stress, the general rule is that employees owe a common law duty to take reasonable care to safeguard their employees’ health and safety. This includes a duty to control stress levels at work.
2. Previously, there is no legal duty upon an employer to prevent an adult employee from doing work which he is willing to do. If there is a slight risk, it is for the employee to weigh it against the desirability or necessity of employment.[footnoteRef:1] [1: Withers v Perry Chain Co Ltd [1961] 1 WLR 1314, per Devlin LJ.]
3. The employer can only reasonably be expected to take steps which are likely to do some good, though the court is likely to require expert evidence on whether the steps taken suffice.[footnoteRef:2] The lack of expert evidence will not be fatal to a successful claim; however, it is necessary to demonstrate that the workload in question gave rise to a foreseeable risk of psychiatric harm.[footnoteRef:3] [2: Hatton v Sutherland [2002] ICR 613, [34].] [3: Hone v Six Continents Retail Limited [2007] I.R.L.R. 49, CA.]
4. It was made clear in Coxall v Goodyear Great Britain Ltd[footnoteRef:4], however, that whether or not an employer in a particular case was under a duty to remove an employee from employment which exposed him to a risk of physical danger was dependant upon the magnitude of the risk involved. The amount of care which a prudent man will take varies with the circumstances and will be proportionate to the degree of risk run.[footnoteRef:5] [4: [2002] EWCA Civ 1010.] [5: Mackintosh v Mackintosh [1886] SLR 23, per Lord Neaves.]
5. There are two components in determining the magnitude of the risk – the seriousness of the injury risked, and the likelihood of the injury in fact being caused.[footnoteRef:6] Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress, and where the foreseeable injury arises from his breach of duty. Whether an injury is foreseeable depends on the employer’s knowledge, or what he ought reasonably to know, about an individual employee.[footnoteRef:7] [6: Salmond on Torts (10th ed) 438.] [7: Barber v Somerset CC [2004] UKHL 13.]

Appellant’s Case

1. 6. The Appellant must rely on the statements of principle in other cases, which rightly indicate that an employer cannot be in breach of duty for failing to dismiss an employee who wanted to continue working despite medical advice. Yet, the Appellant must first prove that the trial judge erred in applying Coxall, and this error led the trial judge to wrongly conclude that the Council had breached its duty.

The magnitude of risk test adopted in Coxall does not conform to all types of work-related harm, rendering it inapplicable.

1. 7. Coxall stated that the employer’s reaction must be proportionate to and reasonable taking into account the magnitude of risk in question. The court in Coxall referred to Hatton in which it was held that “the employer can only reasonably be expected to take steps which are likely to do some good”. The Appellant should submit that the magnitude of risk test in Coxall, combined with the rationale in Hatton, are lacking in clarity. Although the general principles relating to stress at work cases are identified in Hatton, they need care in their application to the facts of the case under consideration.
2. 8. It is difficult to determine the magnitude of a particular type of risk. It is also impractical to compare different types of risk according to a single standard, for there are important differences between pressure, stress, and the physical or psychiatric consequences.

Distinguishing occupational stress from other work-related injuries

1. 9. For the purposes of Simons, it is important to distinguish stress from impending harm to health, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work. In regard to the latter, the employer can be expected to take responsibility for keeping the physical risks presented by the workplace to a minimum, for he is largely in control of the workplace, equipment, and physical conditions in which the work is done. As Hale LJ noted, ‘stress is merely the mechanism which may but usually does not lead to damage to health.’[footnoteRef:8] Contrariwise, he is much less in control of the way in which may of his employees, especially those who are expected to prioritize their own tasks, choose to do their work, and balance the demands of their work and life outside the workplace. Therefore, responsibility both for causing and for doing something about the workplace’s psychological risks may be shared between many people, family, friends, and the employee himself. [8: Hatton (n 2), [27].]
2. 10. The Respondent may refute this, that the Council owed a duty of care to have a system of checks and balances to detect the early warning signs of stress, or to monitor Mr. Simons’ mental health throughout. However, the Appellant should state that the imposition of this kind of duty of care is too high in the circumstances. Mr. Simons, who recognizes that he is experiencing levels of stress which may be harmful to his health, must independently make decisions about how to respond to the stress. The individual who feels the stress must take initiative, for the employer’s room for maneuver may in some cases be limited. Dismissing the employee may be an option; however, where the employee is still willing to work, dismissal based on risk would constitute a restriction on the employee’s freedom. This view is supported by Hale LJ: ‘In many of these cases, it will be very hard to know what would have done some let alone enough good. This is a matter on which the court is likely to require expert evidence.’ This would be ‘oppressive to the employee’ and limits his ability to find work.[footnoteRef:9] [9: Withers (n 1).]
3. 11. Consequently, the Appellant should assert the type of risk in Simons (mental breakdown) as distinguishable from that in Coxall (physical danger). A standard of objectivity attaches to the latter. “There is nothing in the nature of a stress or shock situation which ordains physical as opposed to psychological injury. The determinative factor is the particular vulnerability of an individual by virtue of his physical make-up.”[footnoteRef:10] Psychological harm is more difficult to identify, and holding employers liable in terms of negligence related to workplace stress would create too wide an ambit of liability. [10: Ivancevich, ‘Who’s liable for stress on the job?’ (1985) 64 Harvard Business Review.]

Regard should be had to statements of principle in other cases concerning the employer’s duty

1. 12. The Court of Appeal held in Hatton v Sutherland[footnoteRef:11] that to be successful in a workplace stress case, the claimant must establish the essential elements of a negligence action. This includes the duty of care; breach of duty; causation and foreseeability. The Appellant will rely on this four-stage test as clear and adequate. [11: Hatton (n 2).]
2. 13. In her judgment, Hale LJ set out the threshold question relating to harm and injury: whether the kind of harm done to this particular employee was reasonably foreseeable, with foreseeability depending on what an employer knows or ought reasonably to know about the individual employee.[footnoteRef:12] The employer can only reasonably be expected to take steps that are likely to do some good or steps reasonable in the circumstances bearing in mind the magnitude of risk and the gravity of harm which may occur. The claimant must show that breach of duty has either caused or materially contributed to the harm suffered; there must be a risk of illness that the claimant’s employers ought to have foreseen and ought to have properly averted.[footnoteRef:13] [12: Ibid.] [13: Garrett v Camden London Borough Council [2011] EWCA Civ 395.]

Foreseeability of impending illness based on repetition of symptoms

1. 14. According to the principle in Hartman,[footnoteRef:14] an employer will have breached his duty to an employee if he subjects his employee to severe pressure of work in circumstances where the employer knows or ought reasonably to foresee that the pressure is likely to cause the employee to suffer some form of breakdown which results in psychiatric injury. Lord Phillips states that it is “necessary to demonstrate before breach of duty can be established, that the employer had particular reason to apprehend the danger that such injury would be caused to the individual employee.”[footnoteRef:15] Therefore, the critical issue, in this case, was whether the Council should have appreciated that Mr. Simons was at risk of succumbing to psychiatric injury, despite them having already reduced his workload and encouraged him to use their counseling service. The Appellant should submit that there is no basis for concluding that working as a teacher is a high-risk occupation, which in the words of Scott Baker LJ, “imposes a higher than normal standard of alertness on employers in respect of the risk that employees will sustain psychiatric injury.”[footnoteRef:16] [14: Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6.] [15: Bonser v RJB Mining (UK) Ltd [2004] IRLR 164.] [16: Ibid (n 15).]
2. 15. The judge in Hartman identifies three alerting factors[footnoteRef:17] which would have alerted the defendant's employer: (i) knowledge from the claimant’s original application for reasonable adjustment or retirement due to ill-health, (ii) the aftermath of previous accidents or symptoms suffered by the claimant, and (iii) complaints about overwork. As Mr. Simons had not informed the Council of any previous mental breakdowns or symptoms as a result of occupational stress, it would be difficult to prove that the Council breached its duty. The repetition of complaints and symptoms are foundational factors, as evident in Walker v Northumberland County Council.[footnoteRef:18] In this case, Mr. Walker had two nervous breakdowns. As the employer had been deemed to have been “put on notice” after the first breakdown, Mr. Walker’s second breakdown was therefore entirely foreseeable. [17: Ibid.] [18: [1995] I.C.R. 702.]
3. 16. As various members of the workforce in Coxall expressed concerns regarding the new paint, and thereafter various members suffered adverse symptoms in response to the work condition, Simons may be distinguished. The risk exposed to Mr. Simons was not mentioned to have drawn expressions of concern from various members of the workforce. Mr. Simons’ condition was not obvious to his managers, and it was unclear that the Council had received a clear indication of his impending illness. There were no previous incidents or complaints which may amount to a sufficient indication of impending illness as to put Mr. Simons on notice. Mr. Simons’ vulnerability to stress and his doctor’s note were merely part of a history of which the school authorities were aware. As such, the Appellant should submit that the foreseeability component of the magnitude of risk test is not been fulfilled, thus respectfully urge the Court, under the principle in Dickins v O2 Plc,[footnoteRef:19] to take into account the whole background when considering the Council’s reaction. [19: [2008] EWCA Civ 1144.]
4. 17. The Appellant should submit, based on the principle in The Wagon Mound (No. 2),[footnoteRef:20] that Mr. Simons’ risk of mental breakdown was a mere possibility or so small that it was reasonable for the Council to neglect it. This is even where a conscientious employer has assessed that there is some potential risk of psychiatric injury. [20: [1967] 1 A.C. 617.]

The Council’s actions

1. 18. In Lane Group Plc v Farmiloe,[footnoteRef:21] Judge Peter Clarke held that there should only be a breach where the risk of injury could not be adequately controlled by other equally or more effective means. It may be argued the reduction of workload was not an effective enough means to adequately control the risk of injury, for Mr. Simons would not have suffered a mental breakdown if it were in fact effective. It is also recognized that an employer’s provision of or referral to appropriate counseling or treatment services is not a panacea by which employers could discharge their duty of care in all cases.[footnoteRef:22] The counseling service was not the sole option offered as a means of stress alleviation, however – it was an additional option encouraged ‘if necessary.’ Accordingly, it was wrong to find the Council liable for that illness and its consequences, for the nature of the work per se, was not described to have posed a generally foreseeable risk of mental illness. The school authorities did take into account the doctor’s note and reduced Mr. Simons’ workload accordingly, which is what a reasonable and prudent employer would have done. One doctor’s note outlining the claimant’s predisposition to stress would not warrant immediate dismissal, in the reasonable sense. [21: [2004] P.I.Q.R. P22.] [22: Daw v Intel Corporation [2007] EWCA Civ 70.]
2. 19. In another of the co-joined appeals in Hatton, the case of Jones v Train well Training Centre,[footnoteRef:23] nothing was done by the employer to alleviate the difficulties despite the employee’s several complaints about an excessive workload. In contrast, it would be wrong to contend that the Council had not at least done ‘some good’, by reducing Mr. Simons’ workload as much as possible and encouraging him to use their counseling service. By making these reasonable adjustments in light of the employee’s vulnerability, the Council has complied with its specific duty under the Equality Act 2010. [23: Hatton (n 2).]

A balance must be maintained between the need for dismissal and an employee’s personal autonomy.

1. 20. In Barber, it was held that the employer is generally entitled to take what he is told by his employee at face value, and will not be in breach of duty in allowing a willing employee to continue the job if the only reasonable and effective step would have been to dismiss or demote the employee.[footnoteRef:24] The Council would only be expected to think harder if there is something specific about the job or the employee that will exacerbate the employee’s condition. It would be unreasonable to bind the employer to a duty to investigate further, in every case an employee informs him of a vulnerability. [24: Barber (n 6).]
2. 21. The common law spirit respects the privacy of an individual and prevention of discrimination in the workplace. Conclusively, the Appellant should argue that dismissing an employee based solely on assumptions and opinions would conflict with these values. If the Council dismisses every employee whom it considered to be at risk of some vulnerability, employees would potentially launch claims of unfair dismissal on the ground that their vulnerabilities are being discriminated against. An adult cannot be required to quit his work, just as he cannot be required to undergo medical treatment against his will.[footnoteRef:25] For Mr. Simons, it is his dedication to his students which motivated him to continue work. He had the full right to decide for himself what risks he will run. [25: Ibid, per Lord Rodger.]

Conclusion

It is submitted on behalf of the Appellant, that the Coxall magnitude of risk test is unsuitable due to its strict criteria which does not apply to all work-related injury cases. It is impossible to give a comprehensive formula for identifying the line between the acceptable and unacceptable in relation to the employer’s own weighing of the consequence of risks in adopting this test.

A duty is said to arise where an employer fails to take precautions as a means of combating a known danger, but also where the omission involves an absence of initiative. “The employer must keep up to date, but the court must be slow to blame him for ploughing a lone furrow.”[footnoteRef:26] In some cases the court regards a danger as so obvious that a general practice to ignore it is clearly wrong. However, the test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health. Hence, it cannot be plausibly argued that employers face mass litigation on the basis of workplace stress – this imposes an unduly onerous burden on employers. [26: Morris v West Hartlepool Steam Navigation Co Ltd [1956] A.C. 552.]

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The principles in cases Barber, Walker, and Hartman should instead be considered to establish the correct test in determining liability. In weighing the employee’s vulnerability against his willingness to continue plus any alternative arrangements, the Council had acted reasonably and prudently by providing another means of stress alleviation. This outcome acts as a fair balance with policy considerations in mind; therefore, the appeal should be rightfully allowed.

Bibliography

Case law and statutes

1. Barber v Somerset CC [2004] UKHL 13
2. Bonser v RJB Mining (UK) Ltd [2004] IRLR 164
3. Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010
4. Daw v Intel Corporation [2007] EWCA Civ 70
5. Dickins v O2 Plc [2008] EWCA Civ 1144
6. Equality Act 2010, c. 15
7. Garrett v Camden London Borough Council [2011] EWCA Civ 395
8. Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6.
9. Hatton v Sutherland [2002] ICR 613, [34]
10. Hone v Six Continents Retail Limited [2007] I.R.L.R. 49, CA
11. Lane Group Plc v Farmiloe [2004] P.I.Q.R. P22
12. Mackintosh v Mackintosh [1886] SLR 23
13. Morris v West Hartlepool Steam Navigation Co Ltd [1956] A.C. 552
14. The Wagon Mound (No. 2) [1967] 1 A.C. 617
15. Walker v Northumberland CC [1995] I.C.R. 702
16. Withers v Perry Chain Co [1961] 1 WLR 1314
17. Yapp v Foreign and Commonwealth Office [2015] I.R.L.R. 112

Books

1. Professor Anthony Dugdale, and Professor Mark Simpson QC, Clerk & Lindsell on Torts (22nd edn, Sweet & Maxwell 2017)
2. Salmond on Torts (10th ed) 438
3. Charlesworth & Percy on Negligence, (14th edn) c. 12

Journal Articles

1. Graeme Lockwood, Claire Henderson, and Stephen Stansfeld, ‘An assessment of employer liability for workplace stress’ IJLM 2017
2. ·Brenda Barrett, ‘Clarification of Employer’s Liability for Work-related Stress’ 31(3) ILJ 2002, 285
3. Ivacevich, J.R., Matterson, M.T. and Edward, P.R. (1985), “Who’s liable for stress on the job?” Harvard Business Review, Vol. 64 pp. 60-72