Revue de droit comparé du travail et de la

sécurité sociale
4 | 2021
English Electronic Edition

English case law and the challenge of mental health

at work
Allison Fiorentino

Electronic version
URL: https://journals.openedition.org/rdctss/2705
DOI: 10.4000/rdctss.2705
ISSN: 2262-9815

This article is a translation of:

La jurisprudence anglaise à l’épreuve de la santé mentale au travail - URL : https://
journals.openedition.org/rdctss/525 [fr]

Publisher
Centre de droit comparé du travail et de la sécurité sociale

Printed version
Date of publication: 31 December 2021
Number of pages: 170-179
ISSN: 2117-4350

Electronic reference
Allison Fiorentino, “English case law and the challenge of mental health at work”, Revue de droit
comparé du travail et de la sécurité sociale [Online], 4 | 2021, Online since 31 December 2022,
connection on 31 March 2023. URL: http://journals.openedition.org/rdctss/2705 ; DOI: https://doi.org/
10.4000/rdctss.2705

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 The udge acing occupational health problems

ENGLISH CASE LAW AND

THE CHALLENGE OF MENTAL HEALTH AT WORK

Allison Fiorentino
Senior lecturer at the University of Rouen, Member of the Centre Universitaire
Rouennais d’Etudes Juridiques (CUREJ, EA 4 0 ).

ABSTRACT
The deterioration of mental health at work is now a recognised problem in British case
law. However, the judge did not attempt to create specific standards for this situation,
but rather to adapt the standards of ordinary contract law. As a result, the case law in
this area lays down a number of conditions that the employee must meet before he can
be compensated. The British judge has been keen to adopt decisions that spare both
parties to the employment contract.

KEYWORDS: Stress, Mental Health, Compensation, Breakdown, Accident.

RÉSUMÉ
La détérioration de la santé mentale au travail est désormais un problème reconnu
par la jurisprudence britannique. Pour autant, le juge s’est efforcé non pas de créer
des normes spécifiques cette situation, mais plutôt d’adapter les standards du droit
commun des contrats. Il en résulte que le droit jurisprudentiel en la matière pose
un certain nombre de conditions que le salarié doit remplir avant de pouvoir être
indemnisé. Le juge britannique a eu c ur d’adopter des décisions qui ménagent les
deux parties au contrat de travail.

MOTS CLÉS : Stress, santé mentale, indemnisation, dépression, accident.

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ince the publication of Professor Robert Karasek’s reference document in 19 9,1

S stress in the work environment has been the subject of a considerable amount of
academic work, which considers it as an important issue for employers, workers
and society as a whole.2

In common law, an employer has certain obligations towards its employee which arise
from the work relationship. One of them is health and safety at work. If an employee is
injured while working, the employer may be held liable in two ways: either due to the
behaviour of another employee, or personally, when the employer fails in a non-delegable
duty of diligence. In addition to their obligations under ordinary law, the employer also
has statutory obligations, for example under the Health and Safety at Work etc. Act 19 4.
However, this article will concentrate only on what case law has contributed to the subject,
along with a critical view of the role of the courts, more particularly in the area of employees’
mental health.
The nature of the employer’s duty was defined in the Wilsons & Clyde Coal Co Ltd
v English3 case as having three aspects: the provision of competent colleagues, proper
materials and a safe working environment. This 19 House of Lords judgment was hailed
by legal opinion at the time as a remarkable judicial innovation.4 The context of the period
rendered this judge-made advance particularly noteworthy. Indeed, the complainant
was a miner, a victim of a serious accident that he attributed to the company’s defective
safety system. In the first instance, he won. After being ordered to pay compensation, the

1 R. Karasek, “Job demands, job decision latitude and mental strain: implications for job redesign”,
Administrative Science Quarterly, 19 9, vol. 24, no. , p. 285.
2 To mention just a few bibliographic references by British legal experts, see: R. Byrne, “Occupational
stress-related illness: nothing to worry your (employer’s) head about”, Medico-Legal Journal
of Ireland, 2003, vol. 9, no. 1, p. 8; B. Barrett, “Employers’ Liability for Stress at the Work Place:
Neither Tort nor Breach of Contract? , Industrial Law Journal, 2004, vol. 33, no.4, p. 343; B. Barrett,
“Employer’s liability after Hatton v Sutherland”, Industrial Law Journal, 2005, vol. 4, no. 2, p. 182
C. MCivor, A stressful business , Professional Negligence, 2005, vol. 21, no. 2, p. 12 B. Barrett,
Zero zero zero zero , Journal of Business Law, 2009, vol. 3, p. 229; N. Cooksley, “Personal
injurer: employers liability - health - occupational stress - psychiatric harm”, Journal of Personal
Injury Law, 2009, vol. 1, C15-19 D. Brodie, Risk allocation and psychiatric harm: Yapp v Foreign
and Commonwealth Office , Industrial Law Journal, 2015, vol. 44, no. 2, p. 2 0 D. Brodie, Natural
justice and psychiatric harm”, Reparation Bulletin, 2015, no. 125, p. 5 G. Lockwood, C. Henderson
and S. Stansfeld, “An assessment of employer liability for workplace stress”, International Journal of
Law and Management, 201 , vol. 59, no. 2, p. 202.
3 Wilsons & Clyde Co Ltd v English 19 8 AC 5 .
4 W. A. Robson, Common employment: reflections on the doctrine in the light of Wilsons And Clyde
Coal Company, Ltd., V. English” Modern Law Review, 19 , p. 224. The author also slips in an ironic
remark on the advanced age of the judges which in no way prevents them from making a modern
decision. Indeed, at the same, on the other side of the Atlantic, President Roosevelt was faced with
the conservative hostility of the judges of the Supreme Court, to the extent that he had threatened
to reform this court so out of touch with the problems of ordinary Americans due to the length of
service of its members.

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 The udge acing occupational health problems

employer appealed and the case came before the House of Lords. The House of Lords
unanimously confirmed the decision of the lower court to award the complainant damages.
It was necessary, said Lord Thankerton, “to distinguish between duties relating to the actual
working or operation of the mine and those which relate to the conditions of safety provided
by the system under which such working or operation is carried on. The workman, under his
contract of employment, is not to be held impliedly to have taken the risk of want of due
care in the provision of a reasonably safe system of working, and the master cannot transfer
the duty onto the shoulders of a subordinate.” This decision marked the emergence of an
implied duty of latent safety in any contract of employment.
However, the edge was subsequently taken off the revolutionary impact of this judgment.
Case law considered that this obligation consisted only of taking reasonable precautions to
ensure the safety of the employee; it was not to render the working environment safe at all
costs. Consequently, the employer’s financial considerations were taken into account when
determining the extent of its duty.5
Furthermore, case law quickly found itself facing a theoretical dilemma: the question of
whether the employer’s duty to ensure safety (duty of care) was contractual or a matter of tort
liability. Indeed, a certain confusion can be discerned regarding the basis for the employer’s
liability. It would seem that the basis is both in contract and in tort. One of the Law Lords,
Judge Simonds, expressly stated that whether the action was brought for contract or tort
liability of was of little importance. However, each of these two bases has been the subject
of separate case law.8 Legal opinion itself was not unanimous. Thus Professor Pitt9 held that
a claim linked to a beach of this obligation can be treated as falling within the contractual
domain or as tort liability. In the latter case, the employer’s failure could be analysed as a
breach of the general duty of diligence incumbent upon any citizen.10 Professor Njoya11
preferred the contractual basis insofar as it forms the basis of the relationship between the
parties.

5 G. Pitt, Employment Law, London, Sweet & Maxwell, 8th ed., 2011, p. 449.
C. Chapman, “Compensating employees for injury to feelings and psychological injury. Where do
stress claims stand after the House of Lords judgments in Dunnachie and Eastwood”, JPIL, 2005,
no. 1, spec. p. 13.
“It is trite law that a single act of negligence may give rise to a claim either in tort or for breach
of a term express or implied in a contract”. See Viscount Simonds, Lister v. Romford Ice & Cold
Storage Co. Ltd, 20 December 195 , 195 AC 555, p. 5 . Civil liability in tort in English law
is the result of a large number of court decisions. The French Civil Code distinguishes between
different regimes of tort liability. However, English law has progressively identified torts (wrongs
that require payment of damages to compensate the person that suffered from the wrong) which
can be classified into different categories: torts causing harm to people, damage to property and
finally two other broader categories of torts: breach of a statutory duty and negligence. The last of
these categories has a relatively wide scope since it allow the person suffering damage at the hand
of a third party to obtain damages when the latter was bound by a duty of care. See R. Legeais,
Grands systèmes de droit contemporains, Litec, 2004, p. 285.
8 D. Leckie and J. McWilliams, “Stress at work. The implications for employers”, EMPLB, 2001, no. 44,
p. V. Craig, Civil liability for health and safety , EMPLB, 2002, no. 48, p. 5 B. Barrett, Employers’
liability for stress at the work place: neither tort nor breach of contract”, op. cit.
9 G. Pitt, Employment Law, op. cit., p. 443.
10 This duty of care was established in case law by the Donaghue v Stevenson ruling 19 2 AC 5 2.
11 W. Njoya, “Employment, implicit contracts and the duty of care”, Law Quarterly Review, 2005,
vol. 121, p. 33.

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This theoretical debate has never been settled once and for all, and has not prevented
employees injured in the course of their work from claiming damages. At the beginning
of the 2000s, a new category of claims emerged: those seeking compensation for
psychological damage due to an anxiety-inducing working environment. This being the
case, and as the law is silent on the matter, the courts have had to tackle the question of the
protection of an employee’s mental health. Could the duty “recognised” by the Law Lords
in 19 be interpreted as a duty to protect the employee against stress at work?
The judge-made standards relating to the employer’s liability for psychological injury
to the employee were fixed by the Court of Appeal in the Hatton v. Sutherland12 case which
came before the House of Lords under the name of Barber v. Somerset CC.13 Although in the
Barber case the House of Lords overturned the decision of the Court of Appeal, it approved
the sixteen principles drawn up by a judge of that Court (Lady Justice Hale) for determining
whether an employee has suffered psychological damage at work. This case law has one
drawback: it constitutes too narrow a stricture, artificially limiting the compensation of an
employee whose mental health has been damaged by work.
As we will see, the practical consequences of these two decisions can be more
prejudicial to the employee than the employer. Paradoxically, British employers complain of
a certain compensation culture in which the courts award generous damages to employees
as soon as they suffer from stress at work. In a masterly article published in 2020, Professor
Keith Patten showed that this is mere myth.14
Indeed, the courts have striven to find an acceptable balance between safeguarding
employees’ well-being and not having employers bear the burden of some of the risks inherent
in professional life. It is considered as fair that some of these risks be borne by employees,
since in the words of one judge: “There is no such thing as a pressure-free job. Every job
brings its own set of tasks, responsibilities and day-to day problems, and the pressures and
demands these place on us are an unavoidable part of working life. We are, after all, paid to
work and to work hard, and to accept the reasonable pressures which go with that.”15
First of all, we will examine British case law concerning the compensation of employees
who are victims of acute work-related stress (I), before addressing, in a second part, the
consequences of that case law (II).

I - THE LIMITED INVENTIVENESS OF THE BRITISH JUDGE FACED

WITH OCCUPATIONAL STRESS
Although case law was established at the beginning of the 2000s by the Hatton
and Barber rulings, these were not the first judgments to rule on the question of the
protection of employees’ mental health and that of the liability of a negligent employer.

12 2002 EWCA Civ .

13 [2004] UKHL 13. The Hatton case consisted of four appeals heard simultaneously; one of those
appeals was the Barber case.
14 K. Patten, «Compensation, culture, and the mythologising of justice», Civil Justice Quarterly, 2020,
vol. 9, no. 2, p. 1 .
15 Hatton v Sutherland 2002 EWCA Civ , no. 9.

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The starting point for the case law in this field was decision of the English High Court in
the Walker v. Northumberland County Council case in 1994.1 The plaintiff was a social worker
handling cases of child abuse. His workload increased considerably over the years without any
increase in salary. In 198 , he suffered a nervous breakdown directly linked to his excessive
workload. When he returned to work, he was promised support that never materialised. A few
months later, he had another breakdown and was dismissed on the grounds that his absence
interfered with the running of the department. The employee decided to bring an action
against his former employer which had displayed a culpably cavalier attitude to his state
of health. Mr Justice Colman considered that, although the breakdown had been caused
by the plaintiff’s excessive workload, it was not reasonably foreseeable at that stage that his
work would damage his mental health. However, when he returned to work, the employer
should have foreseen that he was at risk of suffering another nervous breakdown if he was
once again exposed to the same workload as before. Mr Justice Colman considered that,
at the time when the plaintiff returned to work, it was “quite likely, if not inevitable” that he
would have another breakdown, particularly as he did not receive any “additional help” that
would have enabled him to avoid a recurrence of the illness. Mr Justice Colman described
the problem at issue in this case as a work-related psychiatric accident .
There were several lessons to be learnt from this decision. First of all, the decisive
factor in this case was the foreseeability of the damage. The extent to which a reasonable
employer should foresee a harmful reaction to the pressures exerted in the workplace
depends on the interaction between a certain number of relevant factors. These include,
of course, the nature and extent of the work done by the employee, as well as any clear
signs shown by the employee himself. As far as the nature and extent of the work done
by the employee is concerned, a court would be more likely to consider that a negative
psychological reaction is foreseeable if other persons have already suffered injury to their
health resulting from this work. Abnormal levels of illness and absenteeism, among other
things, would constitute relevant proof.
However, it is not enough for the plaintiff to show that it was reasonably foreseeable
that the work environment would lead to stress. They must go further and prove that it was
reasonably foreseeable that the work environment would damage their health. That will
clearly depend on the circumstances. In the Walker case, the court considered that, although
the plaintiff complained about his workload before his first nervous breakdown, this was not
enough to render the development of a psychological illness foreseeable. It is clear that
medical proof in the form of letters from a general practitioner would place the employer
failing to act in a culpable position. Likewise, unusually prolonged absences from work would
place the employer under an obligation to act. However, the employer must have good
reasons to think that the underlying cause is occupational stress rather than other factors.
After having established foreseeability, the plaintiff must demonstrate a breach of the
duty of care. Once again, to assess whether a failing has occurred, the Court will take into
consideration, as well as the foreseeability of the harm, the magnitude of the risk that this
harm will occur, the severity of the harm, the cost and the possibility of preventing it, and
the justifications of the risk.
Finally, the plaintiff must establish a causal link, that is to say that the failure to fulfil a
particular obligation caused the harm. This implies that any plaintiff bringing such an action
before the courts must expect their medical history to be examined in detail, in order to

1 Walker v Northumberland County Council 1995 1 All ER .

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determine to what extent poor mental health preceded their absence from work or was
linked to stress factors unconnected to work. The defendant may usefully rely on the proof
of the intrinsic fragility of the plaintiff who would probably have suffered psychological
damage even if the employer had not been negligent.
The Walker judgment therefore places strict conditions on the payment of damages
for the employee’s psychological harm. Subsequent case law would further tighten those
conditions.
In February 2002, the Court of Appeal1 gave its judgments in the cases Hatton v.
Sutherland, Barber v. Somerset County Council, Jones v. Sandwell Metropolitan Borough
Council and Bishop v. Baker Refractories.18 These four separate appeals, heard together,19
gave the Court the opportunity to re-examine the principles laid down in the Walker ruling,
in an effort to clarify this difficult area of the law. In each of these cases, the appellants were
employers found liable in the first instance due to the psychological injury suffered by their
employees as a result of their work.
After examining the legal principles to be adopted when examining claims for damages
for occupational stress, but before giving its verdict on each case, the Court seized the
opportunity to lay down a certain number of principles to be adopted when examining
these cases.
The 1 practical propositions that result from the analysis of existing case law by the
Court are as follows:
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: (a) an injury to health (as distinct from
occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3- Foreseeability depends upon what the employer knows (or ought reasonably to know)
about the individual employee. Because of the nature of mental disorder, it is harder to
foresee than physical injury but may be easier to foresee in a known individual than in
the population at large. An employer is usually entitled to assume that the employee can
withstand the normal pressures of the job unless he knows of some particular problem
or vulnerability.
4- The test is the same whatever the employment: there are no occupations which should
be regarded as intrinsically dangerous to mental health.
5- Factors likely to be relevant in answering the threshold question include:
a) The nature and extent of the work done by the employee. Is the workload much more
than is normal for the particular job? Is the work particularly intellectually or emotionally
demanding for this employee? Are demands being made of this employee unreasonable

1 This court cannot be compared to a French Court of Appeal. It is the highest court among the
Senior Courts of England and Wales, and only hears appeals coming from other courts.
18 2002 EWCA Civ .
19 These four decisions having been handed down on the same day and dealing with the same legal
problem are referred to in legal writing only by the name of the first of the appeals: the Barber v.
Somerset case.

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when compared with the demands made of others in the same or comparable jobs? Or
are there signs that others doing this job are suffering harmful levels of stress? Is there
an abnormal level of sickness or absenteeism in the same job or the same department?
b) Signs from the employee of impending harm to health. Has he a particular problem
or vulnerability? Has he already suffered from illness attributable to stress at work? Have
there recently been frequent or prolonged absences which are uncharacteristic of him?
Is there reason to think that these are attributable to stress at work, for example because
of complaints or warnings from him or others?
- The employer is generally entitled to take what he is told by his employee at face value,
unless he has good reason to think to the contrary. He does not generally have to make
searching enquiries of the employee or seek permission to make further enquiries of his
medical advisers.
- To trigger a duty to take steps, the indications of impending harm to health arising from
stress at work must be plain enough for any reasonable employer to realise that he
should do something about it.
8- The employer is only in breach of duty if he has failed to take the steps which are reasonable
in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the
gravity of the harm which may occur, the costs and practicability of preventing it and the
justifications for running the risk.
9- The size and scope of the employer’s operation, its resources and the demands it
faces are relevant in deciding what is reasonable. These include the interests of other
employees and the need to treat them fairly, for example, in any redistribution of duties.
10- An employer can only reasonably be expected to take steps which are likely to do some
good: the Court is likely to need expert advice on this.
11- An employer who offers a confidential advice service, with referral to appropriate
counselling or treatment services, is unlikely to be found in breach of duty.
12- If the only reasonable and effective step would have been to dismiss or demote the
employee, the employer will not be in breach of duty in allowing a willing employee to
continue in the job.
13- In all cases, therefore, it is necessary to identify the steps which the employer both could
and should have taken before finding him in breach of his duty of care.
14- The claimant must show that that breach of duty has caused or materially contributed
to the harm suffered. It is not enough to show that occupational stress has caused the
harm.
15- Where the harm suffered has more than one cause, the employer should only pay for
that proportion of the harm suffered which is attributable to his wrongdoing, unless the
harm is truly indivisible. It is for the defendant to raise the question of apportionment.
1 - The assessment of damages will take account of any pre-existing disorder or vulnerability
and of the chance that the claimant would have succumbed to a stress-related disorder
in any event.
What clearly emerges from these decisions is that an employee has an obligation to
inform their employer of their stress. Likewise, an employer may content themself with what
their employee tells them, without seeking to find out whether it is true. However, the Court
of Appeal has very firmly closed the door on the argument that certain forms of employment
are so stressful that they could endanger the mental health of the persons concerned (an
argument that was put forward by teachers, social workers and prison officers’ unions).

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An appeal was brought against one of the four decisions in the House of Lords, which
seized this opportunity to lay down the rules concerning the payment of damages for
mental suffering at work.20 The House of Lords overturned the Court of Appeal’s decision
by a majority of four to one.
The decisive element that guided the court’s decision was the fact that Mr Barber (the
employee) had been off work twice for stress - the first time before the summer holidays
and the second after the summer holidays. It considered that the Court of Appeal had
not taken sufficient account of the fact that the employer had an obligation, after the first
absence, to investigate Mr Barber’s problems and to see what could be done to alleviate
them. It was declared that Mr Barber’s condition should have been monitored and that if
it did not improve with a small reduction in his workload, more drastic action should have
been taken.
This is an unusual decision in which the House of Lords reversed the decision of the
Court below, on a factual basis rather than on the basis that the Court of Appeal was
wrong in Law. Lord Walker noted that the Appellant “rightly directed hardly any criticism”
towards the Court of Appeal’s composite Judgment. Indeed he described it as “a valuable
contribution to the development of the law . The Court’s 1 proposals provided, he said,
“useful, practical guidance”, although adding that it should not be seen as “having anything
like statutory force” and that each case would depend on its own facts.

II - THE LIMITED CONSEQUENCES OF CASE LAW

Case law has put a “straightjacket” on the employer’s civil liability in the event of work-
related psychological harm. The reason perhaps lies in a great reluctance to hold employers
liable in cases of stress at work. This reluctance was apparently based on the difficulties of
identifying psychological damage and the fear of creating too wide a scope of liability. This
last question has become a topical subject in the media, which spread the idea that the British
live in a society that encourages more and more money-making court cases intended to ruin
employers. In 200 Professor Kevin Williams published a study in which he shows that this
belief is firmly fixed in the collective sub-conscience.21 As a result, many employers believe
that they run an increased risk of being unfairly taken to court, even though the possibility that
they will be the target of litigation for stress at work is in reality low.
Indeed, some more recent work by three researchers, published in 201 , shows that as
far as the outcomes of legal claims for stress at work are concerned, only of claimants
are successful.22 This analysis of cases gives some insights into why certain claims were
won or lost, and allows the particular characteristics associated with success or failure to
be identified. For example, in the cases of physical injury caused by bullying and acts of
victimisation on the part of colleagues, those that were successful were often judged on the
basis of the fact that the employer was responsible for the actions of the members of its
staff and that it had therefore failed in its duties as established by case law. In these cases,
it was found that the management was lax, that staff discipline was insufficient and the

20 Barber v Somerset CC [2004] UKHL 13.

21 K. Williams, The media and refining the notion of fault: section 1 of the compensation Act 200 ,
Journal of Personal Injury Law, 200 , vol. 1, p. 4 .
22 G. Lockwood, C. Henderson and S. Stansfeld, “An assessment of employer liability for workplace
stress”, International Journal of Law and Management, 201 , vol. 59, no. 2, p. 202, spec. p. 210.

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organisational management was chaotic. The companies were considered as creating or

allowing a “culture of abuse” with such actions.
In the cases where the claimant did not succeed in their legal action relating to
workplace bullying, two main reasons explain this failure. Firstly, the courts have considered
that, although the managers’ behaviour was often unpleasant and undesirable, it was
not serious enough to constitute, individually or cumulatively, an act of harassment or
bullying warranting compensation.23 Secondly, even though the court considered that the
defendant employer, through their agents, had intimidated or victimised the claimant, the
action for damages nonetheless failed because the courts often considered that there was
not enough evidence to prove that something had happened that alerted - or should have
alerted - the defendant employer to the fact that their staff’s actions, during the period in
question, would or could cause psychological damage to the claimant.
The main characteristics of the cases of workplace stress based on an excessive workload
were: the introduction of changes in work practices by employers; communication and
consultation problems between management and staff; increased working hours increased
volume of work; and the failure of management to respond to complaints concerning new
working practices.
Many claimants suffer from mental illnesses and depressive states due to tensions and
stress related to the their work situation, whether it is because of overwork, the existence
of difficult and complex relations, worries about career prospects, fears or feelings of
discrimination or harassment. However, the court rulings confirm that, unless there was a
real risk of depression that the plaintiff’s employers should reasonably have foreseen, there
cannot be any liability.24
One important point to be taken into account by potential claimants and their legal
representatives is that it is unlikely that a claim will succeed if the claimant, during the
period in question, did not tell anyone that they were having difficulties with the amount
of work expected of them and that it was causing them medical problems. Thus, while an
employee may well want to minimise or conceal the real situation from their employer,
insofar as nobody wants to be considered as being unable to cope, suffering in silence can
have a negative impact in a future legal case. Not having informed other people about the
health issues caused by the workload will be prejudicial to any claim.
It should be noted that a claimant may be entitled to claim damages for damage caused
to their mental health by a single episode of acute stress at work. However, the majority of
cases that have succeeded concern chronic stress resulting from an accumulation of work-
related demands and conditions.25
It should also be borne in mind that the foreseeability of the damage caused by
stress remains a condition essential to the success of the legal action. To win their case, a
claimant must be able to prove that an employer had enough knowledge for the damage
to be reasonably foreseeable - not only that an employee would be upset or disturbed
by certain circumstances or certain events, but that the claimant in particular would suffer

23 Barlow c. Borough of Broxbourne 200 EWHC 50 (QB).

24 Garrett v. Camden London Borough Council 2001 , EWCA Civ 95.
25 For example, see Rorrison c. West Lothian College 2000 S.C.L.R. 5 Fraser v. The State Hospitals
Board for Scotland [2001 S.L.T. 1051 Cross v. Highlands and Islands Enterprise 2001 S.L.T. 10 0.

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psychiatric harm.2 It is not enough for a claimant to make general allegations on a growing
awareness of the possibility of psychiatric damage. In the Easton v. B&Q2 case, the claimant
was diagnosed as suffering from depression in May 2010. With the exception of two short,
unfruitful attempts to return to work in September 2010 and January 2012, Mr Easton never
worked for B&Q again. Mr Easton claimed that his illness was due to work-related stress, a
consequence of the negligent behaviour of his employer B&Q. The latter acknowledged
that Mr Easton had suffered from a psychiatric illness and that his medical situation was
due, in large measure, to work-related stress. However, B&Q argued that Mr Easton’s illness
was not foreseeable at any time. This argument was accepted. Mr Easton’s claim fell at
the first obstacle, that of the foreseeability of his first breakdown. Mr Easton had spent his
ten-year career as a manager in charge of large retail outlets. He had no previous history
of psychiatric or psychological problems. There was nothing that could lead anyone to
suspect that he could succumb to mental illness. Nothing about Mr Easton suggested
to anyone that he could suffer from mental illness, and nothing in the profession of store
manager in general suggested that there was any such risk.
Another lesson can be learned from the case law: one of the questions that employers
must examine carefully is the setting up of a counselling service for their employees.
Case law clearly indicates that the availability of counsellors is a relevant issue to be taken
into consideration in cases of workplace stress. An employer that offers a confidential
counselling service, able to direct the persons concerned to appropriate counselling or
treatment services, is unlikely to be found in breach of its duty to provide a safe working
environment. However, it is worth noting that in two cases,28 the Court of Appeal has ruled
that providing access to counselling services does not always absolve the employer of its
liability. When it is obvious that the health of an employee can be compromised by stress
at work, the employer must tackle the cause of the stress rather than simply informing the
employee of the existence of a counselling service.

Conclusion
At a time when the so-called compensation culture dominates a large part of the public
and political discourse, it is not surprising that employers are worried about court decisions
that could extend the scope of their liability with respect to work-related stress. However, the
analysis of the case law does not support in any plausible or reasonable way the idea that
employers are faced with mass litigation caused by stress at work. The theoretical analysis
of the rigorous judge-made conditions, confirmed by the 201 study, reveals that the court
decisions made in such cases have not placed an excessively heavy burden on employers. In
actual fact, a claimant has substantial legal and evidential barriers to overcome.
British judges have never claimed to innovatively write the law on health at work and
more particularly employees’ mental health. They see themselves as faithful servants of
the common law, sometimes obliged to apply its rules in new area, but always in line with
well-established case law. It is futile to try and see in labour case law on the other side of
the Channel any intention to reform the law to make it more protective of workers. Judges
do not see themselves as political players and have no intention of interfering in the
relationship that binds an employer to his employees.

2 Keen v Tayside Contracts, 200 ScotCS 55.

2 Easton v B&Q plc 2015 EWHC 880 (QB).
28 Dickens v. O2 [2008] EWCA Civ 1144 and Intel UK Ltd v. Daw 200 .

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