Personal injury law

Occupational stress - senior management

Barlow v Borough of Broxbourne QBD (Mr Justice Gray) 24 January 2003

The guidance of Lady Justice Hale in Sutherland v Hatton (2002) EWCA Civ 76, was applied by his Lordship to defeat the claimant's claim for damages arising out of the stress of his position as acting director of services with the defendants.

He had a demanding job working long hours but was under-performing.

The employers attempted to assist in improving his performance but the claimant felt that there was 'a culture of abuse'.

This, one may have thought, was confirmed by the approach of his manager in telling him in front of subordinate employees to 'get off your arse and do your f-king job'.

He was also called 'a useless c-t'.

As stated previously, the key to these claims is foreseeability of injury.

Therefore, his Lordship asked 3 questions, namely:

l Had the claimant established that the conduct complained of took place?

l Did the person or persons involved in the conduct know, or ought to have reasonably known, that their conduct may cause harm?

l Could the employers, by the exercise of reasonable care, take steps that would have avoided that harm?

An additional question was raised in relation to vicarious liability, but in light of recent decisions (see Fennelly v Connex South Eastern, 11 December 2000, CA) this was never likely to be an issue.

It was held that, while the language referred to above was 'undesirable', it must be seen in context.

The claimant had exasperated his employers with 'a catalogue of errors'.

He was in a relatively senior position and not 'particularly sensitive'.

In conclusion, his Lordship therefore felt that there wasn't a foreseeable risk of injury because of the following:

l The claimant was phlegmatic and laid back;

l He had made no complaint to the employers about the behaviour of his manager or about his own inability to cope with the job;

l There were no overt warning signs;

l The medical records of the claimant did not mention stress or pressures of work.

Lastly, and importantly in light of Sutherland, the claimant accepted that he was aware of the counselling service provided by the employers but chose not to avail himself of it.

This decision confirms what many suspected following Sutherland.

The burden has clearly shifted to the employee to demonstrate that there was a foreseeable risk of injury by raising issues about his health with the employers.

The language used in this case would give rise to a clear claim for constructive dismissal as the claimant was verbally abused in front of colleagues of lower rank.

Such language should never be permitted at the work place, no matter how 'phlegmatic' the recipient is.

It is unfortunate that his Lordship chose to simply define the language as 'undesirable'.

It would have been unacceptable on the factory floor, in the white-collar environment arguably more so.

Finally, please note that in a case that was put forward as one of bullying/harassment, foreseeability of injury and the Sutherland shift of the burden of proof remain difficult hurdles for a claimant to clear.

By Simon Allen, Russell Jones & Walker, Sheffield