As one might expect, the findings of the 12th edition of the Absence Survey management report, which is produced by the Chartered Institute of Personnel and Development (CIPD) in conjunction with healthcare provider Simplyhealth, reflect the pressures associated with living and working in the current economic climate. Stress is now the most common cause of long-term absence from work, with nearly 39 per cent of employers reporting that stress-related absence has increased over the past year. This figure rises to 50 per cent in the public sector. Workload is most often cited as the reason for absence due to stress, with management style, non-work factors, relationships at work and significant organisational changes also ranking highly.

Dealing with stress in the workplace is a difficult issue for employers. As well as specific duties under health and safety legislation, employers owe their employees a common law duty to take reasonable care to safeguard their health and safety and this includes a duty to control stress levels in the workplace. Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress. It is foreseeable injury arising from an employer’s breach of duty that gives rise to a liability and foreseeability depends on what the employer knows (or ought reasonably to know) about an individual employee.

In 2002, the Court of Appeal (in Sutherland v Hatton) provided 16 points as guidance on the legal position as regards stress claims in negligence. In 2004, the House of Lords endorsed this general statement of the law (in Barber v Somerset County Council) but stressed that it was only guidance and that each case would hinge on the particular facts under consideration.

For example, point 11 of the Court of Appeal’s guidance stated that 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. However, in Intel Corporation (UK) Ltd. v Daw the Court of Appeal judged that Tracy Daw, a HR professional who became ill through stress at work, was entitled to damages even though her employer did provide a counselling service. The Court was of the view that the service was insufficient to discharge the employer's duty of care towards its employee in this case as it could do little more than advise Ms Daw to see her doctor. The service could not do anything to reduce her workload. That was the responsibility of her employer. Ms Daw was able to show that her many requests for help on account of her excessive workload had failed to bring about any action on the part of Intel and the company was judged to have been negligent as her injuries were foreseeable in the circumstances.

In the more recent case of Dickins v O2 plc, the Court of Appeal upheld the decision of the County Court that O2 was liable to Ms Dickins for psychiatric injury negligently caused by excessive stress at work. In the Court of Appeal’s view Ms Dickins’ psychiatric illness was reasonably foreseeable. The judge in the County Court had found that she was ‘palpably under extreme stress’ and was ‘about to crack up’. She had raised the matter several times with her managers and her situation should have been plain to them but they did nothing of substance.

O2 tried to argue that because it provided a confidential counselling service it should not be held in breach of duty. This argument was dismissed by the Court of Appeal. Hatton made clear that the advantage of a confidential service was that an employee could seek advice without fear of harming their reputation or making a potentially damaging disclosure direct to the employer. On the facts of this case it was clear that Ms Dickins had no qualms about telling her manager that she was ‘at the end of her tether’. She warned that she didn’t know how long she could carry on and the Court found that the mere suggestion by her employer that she seek counselling could not be regarded as an adequate response. Her employer should have sent her home and referred her to the occupational health service much earlier.

The Court of Appeal found that O2’s breach of duty had made a material contribution to Miss Dickins’ severe illness. The evidence was quite strong enough to conclude that 02 had received a clear indication of impending illness. In its view, Ms Dickins ‘tipped over the edge from suffering from stress into complete breakdown. The obvious inference is that she tipped over the edge because nothing significant had been done to recognise and address her need for a rest and for a change to her work requirements’.

The message to employers is clear: stress cannot be ignored and it is important to have a formal stress policy in place. Be alert to the signs of stress and once you are aware that a problem exists, investigate and take appropriate action at once. Active intervention is required. Monitor the situation to see if remedial action is working and continue to do so until the situation is resolved.