In the Baber versus Somerset House of Lords judgement the Law Lords laid down sixteen propositions.
How difficult is it to succeed with litigation?
Because of the propositions it is very difficult for a Claimant to succeed in court. The employee must report the stress and prove that the employer knew or ought to have known that he was likely to become ill. The emphasis is very much on the employee to prove foreseeability and there is no duty on the employer to enquire about an employee's health.
1. There are no special 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.
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 the demands being made on this employee reasonable when compared with the demands made of others in the same or comparable jobs? What are the 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?
6. 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 advisors.
7. 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 evidence 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 automatically 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 the breach of duty has caused or materially contributed to the harm suffered. It is not enough to show the 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.
16. The assessment of damage 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.
The key issue before the House of Lords in the Barber case was whether the onus should be on the employee to bring his problems to the attention of the employer or whether the employer should be proactive and take steps to prevent his injuries. The Lords rejected the argument that the onus should simply be on the employee to complain and that employers should be proactive. This is one of the most important points to arise from the case law. The original ignorance is innocence approach towards workplace stress in which an employer was essentially let off the hook by not knowing about the problems of an employee has been replaced by a need for employers to give positive thought for the safety of his workers.