Many people wish to pursue claims for compensation based on injury caused
by occupational stress. The law on this matter is complicated and far from
straightforward.
The fact that an employee suffers from stress at work and becomes ill is not
enough to succeed in a claim for damages against an employer.
In the case Rorrison, averments that the pursuer suffered psychological
damage in the form of severe anxiety and depression, resulting in the pursuer
feeling dizzy and unwell, were held irrelevant. Lord Reed said:
“The action being based on negligence, the pursuer can only recover if she has sustained psychiatric illness in the form of a recognised psychiatric illness ... there must be a recognised psychiatric illness, not mere depression or anxiety ... the pursuer’s pleadings must give fair notice that it is her intention to lead evidence that she has suffered a recognised psychiatric disorder, and they should specify what disorder that is ... There is no suggestion [in the present case] that she has ever been diagnosed by a psychiatrist as suffering from a recognised psychiatric disorder, and there is no suggestion that her condition is recognised by any psychiatrist or body of psychiatric opinion as constituting a psychiatric disorder. It follows that an action based on negligence cannot succeed.”
As was emphasized by Lord MacFadyen in the recent case of Cross v. Highlands
and Island Development Board, stress is not itself an illness, though
it may be the cause of illness. The fact that the pursuer felt herself to
be under stress, and that the stress made her feel unwell, is not enough:
she must establish actual psychiatric harm or she will fail. This is the
case whether any action contemplated by an employee is grounded in delict
or in contract.
There are a number of possible remedies. Included amongst these might be a
claim for constructive unfair dismissal. However, I will not explore this remedy
in this note.
I propose to turn to the issue, of seeking damages for the psychiatric injury, which she is said to have incurred, a case seeking same would have to establish a breach of duty. His employers in delict and under contract owe duties to an employee. Dealing with each in turn:
Two potential bases of liability might exist. First, primary liability for their own failures. Second, vicarious liability for the actions of an aggressive or overbearing supervisor. These require to be assessed separately.
a Primary Liability of the Employer.
As with any delictual case, to succeed an employee would have to establish
(i) existence of a duty of care; (ii) foreseeability; (iii) breach of the
duty; and (iv) causation of recoverable loss by the breach of duty. Addressing
each in turn:
(i) Existence of a Duty of Care
It is of course the duty of an employer to take reasonable care to provide
a safe system of work, and to avoid exposing an employee unnecessarily to
the risk of injury. In Walker v Northumberland County Council, a social
worker suffered a nervous breakdown because of stress and pressures at work,
and in consequence was off work for three months. Before he returned to work,
his employers agreed that the burden on him would be lessened. It was not,
and six months later he suffered a further nervous breakdown. It was held
that where it was reasonably foreseeable to an employer that an employee
might suffer a nervous breakdown because of the stress and pressure of his
workload, the employer's duty to provide a safe system of work included a
duty to take reasonable care not to cause the employee psychiatric damage
by reason of the volume and character of the work he had to perform. Colman
J said:
"It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the [employee] as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care ...".
Walker was a case at first instance, but has since been referred to without criticism by the English Court of Appeal and by Lord Hoffman in the House of Lords. In the two recent cases on occupational stress decided in Scotland, both Outer House judges affirmed a duty to take reasonable care to avoid exposing an employee to reasonably foreseeable psychiatric injury. Thus, in Fraser v The State Hospitals Board for Scotland, Lord Carloway said:
“In a case involving an employee pursuing his employers for damages as a result of something occurring to him in the course of his employment, the pursuer has for many years customarily averred the nature and extent of the duty of the defenders in the following way:
"It was their duty to take reasonable care for the safety of their employees, including the pursuer, and to avoid exposing them to unnecessary risk of injury.
This formula has stood, so far as I am aware, for an equal number of years without successful challenge. It has not normally been qualified in such a way so as to restrict the nature of the injury suffered to a physical one. I see no reason why such a qualification should now be introduced.”
Likewise, in Cross, Lord MacFadyen said:
“It seems to me that the common law duty of an employer to take reasonable care for his employee's safety and health, and to provide and maintain for him a safe system of working, ought to extend to include a duty to take reasonable care not to subject the employee to working conditions that are reasonably foreseeably likely to cause him psychiatric injury or illness.”
Accordingly, there is little doubt, in my opinion, that Scots law imposes
such a duty as is described in the cases of Walker, Cross and Fraser.
(ii) Foreseeability
It will have been noted that the duty of care discussed above is to take reasonable
care to avoid risks, which are reasonably foreseeable. In the absence of foreseeability,
no duty of care arises. As was said by Lord Lloyd in Page v. Smith:
“The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so then he comes under a duty of care to that plaintiff... [Whether the injury is physical or psychiatric, one uses] the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different "kinds" of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both.....”
In assessing foreseeability, one is to have regard to previous cases. As was indicated by Lord Bridge of Harwich:
“It would seem that the consensus of informed judicial opinion is probably the best yardstick available to determine whether, in any given circumstances, the emotional trauma ... was a foreseeable cause in law, as well as the actual cause in fact, of the plaintiff's psychiatric ... illness.”
I am unable to advise on the facts as disclosed to me that the risk of psychiatric
injury was foreseeable in the instant case. To succeed, an employee would have
to be able to show that the risk of psychiatric injury on his part was
reasonably foreseeable in all the circumstances. . One might foresee distress,
anxiety, sadness and anger as resulting from his behavior, but none of those
are feelings which can result in compensation, being “normal human emotions”.
Compensation is recoverable only where illness is reasonably foreseeable.
That opinion is fortified, it seems to me, by two recent cases: Fraser,
and Smith v. Advocate General.
In Fraser, Lord Carloway dealt with a case brought by a former nurse
in the State Hospital at Carstairs. The pursuer there had been suspected of
facilitating an illicit relationship to develop between a social worker and
a psychopathic patient, the renowned Noel Ruddle. As a result of those suspicions,
the management downgraded the pursuer and imposed a harsh regime upon him.
The circumstances of that case, said Lord Carloway, were not reasonably foreseeable
causes of psychiatric harm. He said:
“[Employers] often have to take decisions which will, and will be anticipated as having, an adverse effect on employees in emotional terms. For example, disciplinary action in the form of demotion or dismissal may reasonably be predicted to result in a whole range of reactions including anger, resentment, depression and anxiety. These are all normal human emotions. Managers may also have in mind that steps, which they may take for good reason, may place, as a side effect, pressure on the employee to resign. Indeed, the employee may feel that the manager has that as a main purpose whether that is so or not. In certain situations, the employee may be able to claim a breach of contract and consequently constructive dismissal. In others he may not. However, it is a considerable leap to go from a position whereby a manager knows or ought to anticipate that his decisions will cause an employee emotional upset in one form or another to the stage where he knows or ought to anticipate that it will cause the employee to suffer psychiatric illness. No doubt some decisions in certain contexts might be predicted to cause such illness where, for example, an employee is asked to work in unexpected (by the employee) or extreme conditions. However, I can think of no basis for finding that the defenders' management either collectively or individually ought to have known that an effect of their actions to restrict the pursuer's work and otherwise, could be to cause psychiatric illness. In addition I find that they did not anticipate such a consequence. Although the pursuer was no doubt known to have been upset by the actions of the management, at no time prior to his stopping work did he show any signs of being likely to suffer any psychiatric harm. Indeed, the opposite appears to have been the case. He was not off work. He did not complain to the management of excessive stress. He was not seen by management to be operating under excessive stress. There was no reason to suppose that being on a restricted regime would cause him psychiatric damage even against the background narrated above.”
Fraser of course dealt with fault on the part of the employers, and did not deal with harassment and bullying. However, such matters were considered in the recent case of Smith v. Advocate General. There, the Temporary Lord Ordinary, T G Coutts QC, said:
“In the present case, the issue is a general one of stress encountered while at work as opposed to work related stress i.e. stress caused by an excessive workload. ...It is the so called managerial style or incidental conduct of [a superior] that forms the basis of the complaint. The question at this stage is whether there can be disentangled from the averments sufficient to establish knowledge that a risk to the health of the pursuer was foreseeable by the defender or [the superior] and was the result of those circumstances specified. Mindful of the dicta of the House of Lords in Jamieson v Jamieson 1952 S.C.(H.L.) 44 and in Miller v South of Scotland Electricity Board 1958 S.C.(H.L.) 20 relative to dismissing cases without a proof the pursuer's averments in this case are not sufficient nor sufficiently specific to entitle him to inquiry. When one has regard to the duties which are averred as being incumbent upon [the superior], one finds "it was his duty to avoid making derogatory comments about the pursuer's professional abilities. It was his duty to avoid making sectarian remarks". Why? I cannot see how such generalities can be elevated into particular duties owed to the pursuer. Again "it was his duty to avoid behaving in a violent manner" but no violence directed against the pursuer is there asserted. The pursuer's averments and complaints about the conduct directed at him do not in my view amount to such conduct as could be reasonably foreseen as causing psychiatric injury. Annoyance perhaps, disgust possibly, disagreement and frustration definitely but that is far from what is required in a case to support the sweeping, and oft repeated assertion in the course of the pleadings, of "bullying, harassment and intimidation"”.
One might also refer to the case of Rorrison, where again averments
of harsh treatment by a superior, which seem to me to be worse than those seen
here, were deemed by Lord Reed to be insufficient to impose a duty of care
as a result of the fact that psychiatric injury was not a reasonably foreseeable
consequence.
In Cross, Lord MacFadyen held that psychiatric injury was foreseeable.
In doing so, he relied on the facts that the defenders were aware (a) that
the deceased was ill, (b) that broadly the nature of the illness was psychiatric
rather than physical, (c) that he was complaining of aspects of his conditions
of work that might be understood to be stressful, and (d) that his doctor was
accepting the attribution of the illness to "stress". None of those
factors are present here, nor is any other factor which, in my opinion, points
to psychiatric injury being foreseeable. Foreseeability of physical harm would
also be enough.
(iii) Breach of Duty
If psychiatric injury was foreseeable, there then falls to be determined the
question of whether or not the duty of care which arose as a result was breached.
We need a clear history of the complaints made by the employee whereby we can
say the employers were on notice that illness was a likely consequence of what
was happening and then we need to ask whether they reacted immediately with
an investigation. If they did it is difficult to see a basis for contending
that they breached their duty of care.
(iv) Causation.
To succeed, an employee would require to show a causal link (on the material
contribution test) between the breach of duty and a psychiatric injury. This
will require expert medical opinion.
In addition to the duty of care owed by the Employer, the employee might
also found upon the duty of care incumbent upon a supervisor, who owed a duty
of care to his fellow employees. That duty of care encompasses various facets,
most relevant of which are (i) to take reasonable care not to act in such a
way as to cause foreseeable psychiatric injury - i.e. the same duty as is owed
by the employer; and (ii) not to act deliberately so as to cause injury to
a fellow employee.
(i) The Duty of Reasonable Care
This would be a standard action of negligence, entailing the usual duty owed
by a citizen to take reasonable care not to cause his neighbour harm. The four
aspects discussed above with regard to any potential action direct against
the employer would apply with equal effect to any action based on vicarious
liability for the actions of a supervisor: if he has not been negligent, then
the employer will not be liable.
Once again, the major problem here will be that of foreseeability. Can it be
said in relation to a supervisor, looking at matters objectively, that anything
he did might cause psychiatric harm. Was there was anything which would alert
him to any particular vulnerability to such harm on the part of the employee?
(ii) Deliberate Actions
If a deliberate delict has been perpetrated by a supervisor, then the problems
discussed above as regards foreseeability do not arise. For example, had the
supervisor assaulted the employee, then foreseeability would not be a problem,
since (a) physical injury would be foreseeable; and (b) in any event, foreseeability
is rarely a requirement for recovery in a case of intentional harm, since in
general
“the intention to injure disposes of any question of remoteness”.
In addition, an intentional delict might allow an employee to recover damages
even if she has suffered no psychiatric harm. As was said by Lord Hoffman in Hunter
v Canary Wharf Ltd :
“I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All.E.R.65. The policy considerations are quite different.”
The question is, whether or not an intentional delict can be found in the
circumstances of each case?
It has been said that it is an actionable wrong in Scotland to deliberately
inflict nervous shock. However, cases which form the basis of this decision
are more concerned with the deliberate deception of the pursuer in a way likely
to cause harm, rather than questions of harassment such as are complained of
here.
The most relevant modern Scottish case in this area is that of Ward v.
Scotrail. There, Lord Reed considered a case of deliberate sexual harassment
by a fellow employee. The pursuer sought damages from her employers on the
bases of direct delictual liability for negligence; vicarious liability;
and breach of contract. Lord Reed excluded the vicarious liability case,
but quoad ultra allowed a proof. In doing so, he appears to have accepted
as statable the proposition that harassment may constitute an actionable
wrong in the law of Scotland, although that aspect of the case is clouded
by the fact that the pursuer’s pleadings conflated a case of reasonable
care (i.e. negligence) with one of intentional harassment.
There appears to be an argument that the law of Scotland now recognises a delict
of harassment. This is in line with Ward, and also with earlier decisions
such as Murdoch v. Murdoch.
In Salmond and Heuston on the Law of Torts, 21st. ed. (1996), p.443,
in a passage cited with approval in Ward, it is said:
“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorized mode of doing some act authorised by the master.”
Without in any way wanting to trivialize an employee’s complaints, we must always be clear to distinguish between harassment as opposed to a clash of personalities.
If harassment is an intentional delict, then intention must be proven. That is in general not difficult. A man’s intent is judged by his conduct, and often that conduct will demonstrate the necessary animus injuriandi. However, “animus injuriandi is no more than the absence of legal justification for intentional conduct which causes harm”. Here, the legal justification would be found in the need of a superior officer to deal with and supervise employees in his charge. The fact that he did so in a way which was irritating, insensitive and offensive does not per se mean that he has committed a delict.
For many years, the courts have refused to award damages for hurt feelings
and distress arising from wrongful termination of a contract of employment.
While the case which is the basis for that proposition, Addis, is an
English one, judgments in cases such as Diesen v Samson, Black v
Gibson, and Colston v Marshall leave little doubt that the rules
set out in Addis apply equally north of the border.
However, Addis will not exclude a claim if the claim is for psychiatric
injury.
Implied into an employee’s contract of employment is
“the portmanteau, general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages.”
This was most recently affirmed in the recent House of Lords case of Malik
v Bank of Credit and Commerce International, although it had been part
of the law for some time before that.
In Malik, the implied term was said to have been breached by the running
of the employer’s business in a “dishonest and corrupt” manner.
The test of whether or not certain conduct will breach this implied term is,
as with all cases of breach of contract, an objective one. Thus in Malik Lord
Nicholls indicated:
“The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances.”
In Gogay v. Hertfordshire CC a summary suspension as a result of a
groundless allegation of sexual abuse was held to breach the implied term.
However, as with a delictual claim, the loss must be reasonably foreseeable
before recovery will lie.
The test of foreseeability in breach of contract is slightly different from
in delictual cases. Issues of remoteness fall to be approached on the basis
of the rule in Hadley v Baxendale. There it was said that:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
Foreseeability in a case of breach of contract is a question of fact, to be
determined according to a legal test which “has been formulated in what
may appear to be a bewildering variety of words or phrases”.
In Czarnikow (C) Ltd v Koufos, Lord Reid in the House of Lords adopted
the words "not unlikely" as the test of likelihood to be used for
the purposes of damages for breach of contract. He used those words "as
denoting a degree of probability considerably less than an even chance but
nevertheless not very unusual and easily foreseeable".
That test is different from the test of reasonable foreseeability, which is
applied, in delictual cases. Therefore, for reasonable foreseeability to be
established, “the issue is whether injury is reasonably foreseeable as
a probable consequence of the operation”. That said, the test of reasonable
foreseeability in delictual cases is not an exacting one. Even a small risk
will be foreseeable unless a reasonable man would disregard it..
I hope the foregoing sets the problems of Stress at Work claims within the
relevant legal context.
Peter Watson, Levy & McRae
DX GW149, Glasgow
Prepared by Peter Watson
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