Why Employment Lawyers Should Also Be Civil Lawyers

Below is a copy of an article I recently published in New Law Journal. I will continue with the analysis of bullying claims in subsequent posts.

Most individuals assume that if a dispute arises between themselves and their employer that they will need to take action in the Employment Tribunal and will approach an Employment Lawyer.

Historically there have been significant advantages to the Employment Tribunal. It was previously free to pursue your claim and there was always minimal risk of any adverse costs. Times have changed and now there is compulsory referral to ACAS for mediation and now it is necessary to pay Tribunal fees. I have seen several reports in the Law Society Gazette about the dramatic decrease in the number of Tribunal claims issued with falls of approximately 80% reported from this time last year.

It seems however that many people are now reverting to bringing claims in the civil courts. Most Employment Lawyers I know will hold their hands up and say the civil procedure rules are about as alien to them as winning the World Cup is to Lichtenstein.

It has always been important for Employment Lawyers to understand the civil remedies available to Claimants. Those who don’t consider the wider options available to Claimants can lead to issues of professional negligence.

Given the competing jurisdiction of the Employment Tribunal and Civil Courts, this can give rise to complex arguments surrounding abuse of process and res judicata which is why it is so important for individuals to consider all of the civil and tribunal remedies available to him/her before embarking on legal action which may or may not not be in the clients best interest.

Abuse of Process and Res Judicata

One of the central features of the English legal system is the requirement to bring all matters in dispute between parties within one set of proceedings. This is set out succinctly in the Judgment in Henderson v Henderson 1843 in which it was stated that:

‘I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of Litigation in, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’

 To put this simply, parties must bring all matters in dispute within one set of proceedings and a failure to do so will, save in special circumstances, prevent the parties re-litigating further issues which were in existence at the time of the earlier dispute in subsequent proceedings.

This can consequently result in a complete bar to re-litigation and can be particularly problematic in relation to the cross over between employment and civil jurisdictions. Even if a party is able to present further litigation it is likely that any findings of fact in the earlier proceedings will be binding as explained in the Judgment of Diplock LJ in Thoday v Thoday[1964] 1 AER 341 at 352

‘The particular type of estoppel relied on by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first species, which I will call “cause of action estoppel”, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie, judgment was given on it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim, “nemo debet bis vexari pro una et eadem causa”. In this application of the maxim, causa bears its literal Latin meaning. The second species, which I will call “issue estoppel”, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation on one such cause of action any of such separate issues whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.’

The particular difficulties relating to the overlap between Personal Injury and Employment have been highlighted in two cases of note. Firstly the cases most commonly quoted by Defendant is Sheriff v Klyne Tuggs (Lowestoft) Limited [1999] ICR 1170. This case involved a Claimant who brought a claim for race discrimination in the Employment Tribunal. The case was settled by way of a compromise agreement and the Claimant then brought further civil proceedings for the personal injuries sustained as a result of the discriminatory acts. The Court of Appeal struck out the civil claim as an abuse of process as the Claimant could, and should, have pursued the entirety of his claim within the Employment Tribunal.

The Sheriff decision is in contrast to the decision in McCabe v Cornwall County Council & The governing Body of Mounts Bay School (2003) IRLR 87 in which the civil claim was allowed to proceed psychiatric injury after the Claimant had already succeeded in recovering damages for unfair dismissal in the Employment Tribunal.

In McCabe the Court state that:

‘It may be – and I express no view on this – that if he (the Claimant) has succeeded in obtaining a compensatory award from the tribunal, the extent and make up of that award could have some bearing on the amount of damages, if any, which he could recover in the common law claim, if only to prevent inadvertent double recovery. But that is a different question from the survival of a separate and discrete common law remedy notwithstanding recovery for unfair dismissal before a Tribunal.’

There are two key factors which resulted in the differing decision in Sheriff and McCabe;

1.  The cause of action which gave rise to the civil claim in McCabe pre dated the events resulting in the unfair dismissal and hence the civil liability pre dated any liability in the Employment Tribunal; and
2. The Employment Tribunal does not have jurisdiction to award personal injury following a finding of unfair dismissal whereas the Tribunal would have jurisdiction to award personal injuries following a finding of discrimination.

Potential Civil Remedies

An increasingly common claim available to Claimants is a claim for psychological injuries caused as a result of the Employers breach of duty, breach of contract, bullying or harassment (Stress at Work claims).

Generally the Employment Tribunal do not have jurisdiction to award damages for personal injuries save in certain exceptional circumstances. The central exception being where the injuries arise as a result of discrimination as stated above.

Discrimination is a widely misconstrued phrase and I have seen many individuals claim that they have been ‘discriminated against’ without understanding the technicalities under the Equality Act 2010 particularly surrounding the need to possess a ‘protected characteristic’.

Stress at Work claims are notoriously difficult and there are a number of hurdles to overcome. One of the most problematic issues relates to the necessity to prove, in most case, that the employer could reasonably have foreseen the likelihood of the Claimant suffering psychological injury. This problem does not exist in the Employment Tribunal where there is a finding of discrimination.

Stress at Work Claims can arise in the following circumstances:

•  Negligence – for instance failure to follow recommendations of Occupational Health, failure to arrange return to work interviews, causing an individual to have an excessive workload.
• Bullying and Harassment – There is generally no liability in the Employment Tribunal for bullying and harassment (save for where such acts are discriminatory). Bullying and harassment can be from managers or colleagues;
• Breach of Contract – if the Employer breaches their own policies or procedures this can give rise to a claim for personal injuries;
• Breach of Statutory Duty – ordinarily this will be the Management of Health and Safety at Work Regulations 1999 or the Protection from Harassment Act 1997.

Many employment claims are fundamentally based on breach of contract and breach of contract is generally a civil claim. Parliament have legislated so that certain breach of contract claims, for instance constructive dismissal, must be brought in the Tribunal but there remains the entitlement in certain situations to bring civil proceedings as an alternative to Tribunal proceedings.

Another, albeit rare, option would be the use of an Injunction to prevent the early termination of an employment contract prior to the fulfilment of the appropriate disciplinary procedures as highlighted in the decision in Societe Generale v Geys (2012) UKSC 63.

The use of injunction is of particular relevance whereby the employee obtains a certain benefit or financial reward for a period of service and the employer is seeking to force termination of a contract prior to this period of time has elapsed.

Practical Position

 I would suggest that all Employment Lawyers need to be aware of the civil remedies available to their clients, particularly for personal injury, and if they are not sure it would be advisable to ensure that Employment Lawyers have a relationship with another Solicitor either in their firm or at another firm (or alternatively Counsel) who can assist in assessing all of the avenues before the client embarks on legal action.

For the reasons of res judicata/abuse of process, an Employment Lawyer could find themselves in all kinds of difficulties if they have not advised a client on all of the remedies available or have, for instance, failed to include all of the potential claims within the Tribunal proceedings.

At a time when the use of civil remedies is becoming more prevalent, those employment lawyers not up to speed on this may soon find that they are losing business or, worse, being sued for professional negligence for failing to advise on all of the avenues available.

As a checklist I would suggest that every Employment Lawyer should consider all of the following issues for every new client they liaise with:

1. Does the client have a Protected Characteristic? If so, what is it?
2. Is the treatment which the Client has been subjected to as a result of the Protected Characteristic?
3. Has the Client suffered a Psychiatric Injury as a result of their employment? For instance have they sought medical attention and been placed on medication or referred to counselling?
4. If the client’s employment is ongoing, are the Employers following their own policies and procedures, in particular a disciplinary procedure?
5. If the dismissal or acts complained of occurred more than 3 months ago, do not assume that the case is time barred. Is there an appropriate civil remedy available?

If you are already acting for a Claimant, particularly one with a discrimination claim, then I would suggest that as standard an Employment Lawyer should be assessing whether there is an injury claim in order to include this with the Tribunal proceedings.

I would also caution against the traditional thought process of adding discrimination allegations within an ET1 in order to avoid the statutory cap on compensation where the discrimination allegations are weak. By including an allegation of discrimination, this may prevent a separate, and possibly stronger, civil claim being pursued.

I write a regular blog on these type of issues and please feel free to follow this at https://stresslawyer.wordpress.com or follow me on Twitter (@RichardCMLS) for regular updates.

Richard Coulthard

Head of the Stress at Work Department

Michael Lewin Solicitors (www.michaellewin.co.uk)

Leeds

 

Harassment Claims: The Protection from Harassment Act 1997

A common problem in the workplace is bullying and harassment. An Employer has a duty to prevent bullying and harassment in the workplace and many employers have comprehensive bullying and harassment policies which ought to be adhered to.

However an Employer will also be vicariously liable for the acts of their employees in most circumstances. There are limitations to the principles of vicarious liability which I will explore in subsequent posts but in many circumstances the Employer are directly liable for the acts of their employees.

Legal liability for bullying and harassment can come in many forms. Generally there is no liability for bullying and harassment in the Tribunal save for where the harassment relates to a protected characteristic and therefore falls within the Equality Act 2010.

There can be liability in common law for bullying and harassment and this will explode in a further post. The focus of this article however is liability under the Protection from Harassment Act 1997

What the Act says and the history to the Act

The Act was originally created as a means to prosecute stalkers. Historically it had been very difficult to prosecute stalkers unless they had committed a separate criminal act, for instance assault. This was particularly problematic for celebrities.

Section 1 of the Act states:

1. Prohibition of harassment

(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.

(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

The Act provides for both criminal and civil remedies for harassment.

Section 3 of the Act provides that the civil courts can award damages for the injuries and losses sustained as a result of the harassment. Furthermore the Act provides that a Claimant can seek an injunction under the Act.

The Act in itself was not specifically intended for the Employer – Employee relationship but as stated in Majrowski v Guys and St Thomas NHA Trust (2005) IRLR 340 

‘It is the very place where harassment is often encountered and from which the victim is often powerless to escape…..it is thus often likely to be a rick incidental of employment’

Definition of Harassment

The Act is somewhat vague as to what constitutes harassment because to be any more specific may result in a situation which limits the CPS ability to prosecute.

However in civil cases this often gives rise to dispute as to whether the conduct of the perpetrator is sufficiently serious to give rise to liability under the Act.

The Courts have made several attempts at defining or clarifying the necessary severity of the conduct in order to establish liability under the Act.

In Thomas v News Group Newspapers Limited (2002) EMLR 78 it was stated that:

‘The Act does not attempt to define the type of conduct which is capable of constituting harassment. “Harassment” is however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in Section 7 and which is oppressive and unreasonable.’

The Courts have however been keen to ensure that the severity of the conduct of the perpetrator is significant given that the Act also provides for criminal liability and it was stated in Conn v Sunderland (2007) EWCA Civ 1492  that ‘the conduct is of such gravity as to justify the sanctions of criminal law’

It was further stated in Hammond v International Network UK Limited (2007) EWHC 2604 (QB) that:

To be actionable under the 1997 Act the conduct in question will be criminal and might even attract a custodial sentence. It must therefore have an element of real seriousness. It must, in Lord Nicholls words be “oppressive and unacceptable”

The overall indication rom the Courts is that the conduct must be of a serious nature although it was clarified in Veakins v Kier Islington Limited (2010) IRLR 1342 that it was not necessary for the CPS to prosecute and simply because the CPS choose not to prosecute does not prevent the civil claim being successful.

The case which provides the most definitive, and widely accepted, test for harassment under the Act is Green v DB Group Services (2006) IRLR 764 which set the following test:

There must be conduct:

1. which occurs on at least two occasions; (the Act describes a ‘course of conduct’)
2. which is targeted at the Claimant;
3. which is calculated in an objective sense to cause alarm or distress;
4. which is objectively judged to be oppressive and unreasonable.

Examples of Harassment

The unfortunate reality is that each claim must be assessed on its own facts and conduct which may contravene the Act in one case may not in another when considering the totality of the events.

The Court have wide discretion when assessing these issues and it was further stated in Majrowski that:

‘A great deal is left to the wisdom of the Courts to draw sensible lines between ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour’

By way of example, harassment under the Act has been established in the following cases:

• Hammond v International Network Services UK (2007) EWHC 2604 – the Court found the Defendants conduct to amount to harassment when the Claimant’s manager had repeatedly sought to publicly humiliate the Claimant over his lateness and would shout, swear or conduct himself in a threatening manner;
• Rayment v Ministry of Defence (2010) IRLR 768 – a failure to remove pornographic material, discharging the Claimant from service without a proper process and telling the Claimant that she was employed in the wrong job and asking her to repay salary was deemed to be harassment;
• Marinello v City of Edinburgh Council (2011) SC 736 – a course of conduct spanning of a period of years of verbal abuse and criticism of the Claimant’s work
• Green v DB Group Services (UK) Limited (2006) IRLR 764 – deliberately ignoring a colleague, excluding her from conversations, making crude and inappropriate remarks about her and hiding her post was deemed to be harassment.

Advantages of Claims under the Act

The threshold to prove harassment under the Act is very high but if liability can be established then there potential advantages over comparable claims in common law as follows:

• There is no requirement to prove foreseeability of an injury;
• Claims under the Act are subject to a 6 year limitation period as oppose to the ordinary 3 year limitation period;
• There is no need to prove a recognised psychological injury and damages can be awarded for distress and anxiety which fall short of the criteria for a recognised condition

Richard Coulthard

www.michaellewin.co.uk

 

Stress Claims from Breach of Contract

An Employment Contract is full of express and implied terms designed to protect both the Employer and Employee. Breach of these terms, both express and implied, can amount to breach of contract which can be actionable in both the Employment Tribunal and Civil Courts.

There is a competing jurisdiction between the Civil Courts and Employment Tribunal as to what breach of contract claims are actionable in each jurisdiction. For instance a Constructive Dismissal claim is based on the fact the Employee alleging a fundamental breach of the Employment Contract by the Employer however this cause of action must be pursued in the Tribunal.

Express or Implied Terms

Section 1 of the Employment Rights Act 1996 provides that an Employment Contract must be in writing and lists a series of prescribed issues which must be dealt with in the Employment Contract.

Of course each Employment Contract is different and the express terms differ from employer to employer. Civil law and/or statute has however developed a series of implied terms which are implied into every employment contract so as to afford employees with a standard level of minimum protection.

The principle implied terms are:

• The Implied term of Mutual Trust and Confidence. This duty extends both ways and neither the Employer or Employee must act in a manner which is likely to destroy or seriously undermine the relationship of trust and confidence pursuant to the decision in Malik v Bank of Credit and Commerce International S.A. (1998) AC 20.
• There is an implied term that the Employer will take reasonable care for the safety of their Employees.
• There is an implied term that the Employer will afford an Employee reasonable opportunity to their employees to obtain redress for any grievance they may have pursuant to the decision in W A Goold (Pearmark) Ltd v McConnell (1995) IRLR 516 and this is further supported by Section 3 of Employment Rights Act 1996 which provides that an Employer must provide an employee with a statement of how to seek redress for a grievance.

Depending on the Employment Contract, some of the above terms may be dealt with as Express (i.e. written) terms but even if that is not the situation, they are nevertheless implied into the contract.

Policies and Procedures

In addition to the express and implied terms detailed within an Employment Contract, most employers will have a series of standardised policies or procedures which do not fall within the main body of the contract but are documents which all employees are subject to. These policies may include:

• Grievance Policy
• Disciplinary Policy
• Sickness Absence Policy
• Bullying and Harassment Policy
• Equality and Diversity Policy

The exact names of the policies may differ but broadly the above issues are detailed within a series of policies or procedures.

There has been debate as to whether these policies form part of the Employment Contract. Some contracts give express contractual terms to the policies whereas other contracts seek to state that the policies do not amount to contractual term. Most contracts however are silent on the issue.

The case of Deadman v Bristol City Council (2007) EWCA Civ 822 sought to clarify this issue. At Paragraph 17 of the Judgment of Lord Justice Moore-Bick it was stated that:

“In my view where an employer has published and implemented with the concurrence of employees’ representatives formal procedures providing for the manner in which complaints are to be investigated, it will usually become a term of the contract of employment that those procedures will be followed unless and until withdrawn by agreement. The fact that in this case the procedures were made in the implementation of a non-contractual policy is in my view of no significance. What matters is whether they were in fact adopted as part of the contract of employment, as in my view they were in this case.”

It is therefore arguable that a breach of a policy may amount to a breach of an express contractual term particularly where the policy has been negotiated by a trade union.

Even if the policy is not given contractual weight, there is a good argument to say that a breach of an employers own policies and procedures can amount to a breach of the implied term of trust and confidence on the basis that an employee is entitled to assume that an employer will conduct themselves in accordance with policies they have drafted and dictated particularly given that it is expected that an employee will act in accordance with the policies and  many employers may seek to discipline employees if they breach certain policies.

Disciplinary Procedures

A common cause of stress and anxiety for many is in respect of disciplinary proceedings. The decision in Gogay v Hertfordshire County Council (2000) IRLR 703 established that damages for psychiatric injury were recoverable as a result of a mishandled disciplinary procedure. This case related to a support worker who was suspended without just cause and was able to recover damages as a result.

Differences between Breach of Contract and Tort

There are many similarities between actions in breach of contract and Tort but there are distinctions which are important to understand.

Firstly, the test for foreseeability of harm is different. Pursuant to the decision in Sayers v Camrbidgeshire County Council  (2007) IRLR 29 the test for foreseeability in breach of contract is what was foreseeable at the time of entering into the contract. Chitty on Contracts gives good guidance on this issue and states that

‘A type or kind of loss is not too remote a consequence of a breach of contract if, at the time of contracting (and on the assumption that the parties actually foresaw the breach in question), it was within their reasonable contemplation as a not unlikely result of that breach’

It is important to therefore look at what the parties knew at the time of contracting together with each, for instance did the employer know that the employee was vulnerability to psychiatric injury. It is also important to look at the nature of the breach. It is arguable that certain (probably more significant) breaches would foreseeably cause psychiatric injury in a proportion of the population, for instance malicious disciplinary proceedings however what is clear that is if the breach of purely technical, as was the case in Deadman, that a case may fail on foreseeability.

The position on foreseeability should be contrasted with the position in respect of damages. In Johnston v NEI International Combustion Limited (2007) 4 ALL ER 1047 it was stated by Lord Scott that:

‘Damage is the gist of a negligence action in tort but damage does not have to be shown in order to establish a cause of action in breach of contract. All that is necessary is to prove breach.’

Lord Scott went onto say:

Damages for breach of contract should, in principle, compensate the victim for being deprived of the contractual benefit to which he was entitled.’

This case was a pleural plaques which failed in negligence due to the failure to prove an injury but it appeared to be suggested that a similar claim in contract may have succeeded.

This is further supported by the decision in Malik v Bank of Credit and Commerce International S.A. (1998) AC 20 in which damages were recoverable (post termination of an employment contract) for breach of the implied term of trust and confidence during the period of the existence of the contract.

This does raise an interesting argument as to whether damages for breach of contract may exist even where the claim for personal injury fails, possibly on the grounds of foreseeability. Damages may be low or even nominal but as suggested in Johnston damages are recoverable for the breach in any event.

In all, breach of contract allegations add an additional and useful allegation to those pursued in negligence. Often there is little distinction between the two but on occasion, and in the right circumstances, claims may succeed in contract which would otherwise fail in Tort.

Richard Coulthard – www.michaellewin.co.uk

 

 

 

Stress Claims In Negligence

As referred to in previous posts, there are several grounds on which a Claimant can pursue a Stress at Work Claim at ‘common law’.

There are potential claims in Tort (i.e. negligence), Breach of Contract and Statute all of which may arise prior to the employment contract coming to an end. Each cause of action has unique rules and principles which require exploration in order to understand this complex area of law.

This particular post will focus on the legal principles surrounding Stress claims brought in Tort.

Basic Principles Of Tort Law

For those readers who are legally qualified, the basics of Tort Law should be well known but the three key principles which need to be established are:

 

• The Defendant owed the Claimant a ‘Duty of Care’. This is unlikely to be problematic in an Employer – Employee relationship as it is accepted law that the Employer owes the Employee a duty of care.
• The Defendant has ‘Breached their Duty of Care’. This essentially means that the Defendant (usually the employer) or the Defendant’s servant, agent or employee has acted (by either Act or Omission) negligently.
• That the Defendant’s negligence has caused ‘foreseeable’ loss, injury and damage

Vicarious Liability

As a starting point, the Employer are ordinarily ‘vicariously liable’ for the negligent acts and/or omissions of their servants, agents or employees. Put simply, the Employer will be liable for the actions of those within their employment.

There is a caveat to this and that is the Employer are only liable for the acts and/or omissions of the employee insofar as the Employees actions were within the employees course of employee or where the employee’s actions were so closely connected to their employment that the Employer ought to be liable.

This caveat can become problematic in bullying and harassment claims and I will consider this issue further in subsequent posts. Ordinarily it is not an issue proving that an employee was ‘acting in the course of their employment’ for stress claims in negligence.

The Law on Stress Claims in Negligence

The leading case in this area is Hatton v Sutherland (2002) ICR 613 and this remains good law and has been approved in several subsequent cases and most importantly was approved by the House of Lords in Barber v Somerset (2004) I WLR 1089. Hatton was actually a consolidated appeal of several cases including the Barber case, Barber however was the only case appealed to the House of Lords who expressly approved the 16 point summary provided in the Judgment of Lady Justice Hale in Hatton.

This summary can be summarised as follows:

1. The ordinary principles of employers liability applies equally to stress claims (Para 20 of the Judgment) and there are no special control mechanisms in place for claims for psychiatric illness as a result of stress (Para 22);
2. The threshold question is whether the type of harm to this particular employee was ‘reasonably foreseeable (Para 23). It is necessary to prove that the Claimant has sustained injury to health (and not just stress) which has been caused by work;
3. Foreseeability depends on what the employer knows (or ought reasonably to have known) about the individual employee. It is more difficult to foresee psychiatric injury but may be easier to foresee in certain employees than in the population at large (Para 23). An employer is usually entitled to assume that an employee can withstand the pressures of the job unless they know of some particular problem or vulnerability (Para 29).
4. There are no occupations which should be regarded as intrinsically dangerous to mental health (Para 24).
5. Factors relevant to foreseeability include various factors including a) is the workload much more than comparable employees? Is the job particularly emotionally or physically demanding? Are the demands being made of the employee unreasonable? Are there signs that other comparable employees are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism? b) signs from the employee of impending harm to health. Has he/she a particular vulnerability? Has the employee suffered previous illness due to stress at work? Have there been frequent uncharacteristic or prolonged absences? Is there a reason to attribute this to stress at work i.e. because of warnings or complaints?
6. The Employer is generally entitled to take what he is told by an employee at face value and does not generally need to make further enquiries (Para 29)
7. The trigger a duty to take steps, the risk of impending harm to health must be plain enough for a reasonable employer to realise he should do something (Para 31)
8. The Employer will only be in breach if they have failed to take reasonable steps to prevent harm taking into account various factors including the costs and practicability of preventing the harm (Para 32).
9. The size and scope of the Employers is of relevance including the availability of other resources and demands placed on the business (Para 33)
10. An employer is only expected to take steps which are likely to do good (Para 34).
11. An employer who offers a confidential advice service or counselling  is unlikely to be in breach of duty (Para 17 & 33)
12. In all cases it is necessary to identify what steps an employer could and should have taken (Para 33)
13. If the only reasonable step would have been to dismiss or demote the employee then the Employer will not be in breach (Para 34)
14. The Claimant must show that the breach has caused or materially contributed to the injury (Para 35)
15. Where the harm has more than one cause, the employer should only for the proportion attributable to work related factors. It is for the Defendant to prove apportionment. (Para 36 &  39)
16. The assessment of damages will take into account any pre existing vulnerability or disorder or the chance that the Claimant would have suffered stress related illness in any event.

To What Extent Is Hatton applied?

Hatton remains the starting point from the assessment of any stress cases in negligence but the applicability of Hatton has become somewhat diluted in light of subsequent cases which have sought to clarify certain issues or elements within the guidance given by Hatton.

In particular there has been a number of cases which have sought to clarify the difficult issues surrounding foreseeability of harm and I will explore this further in subsequent posts.

Hatton is most applicable to cases involving allegations of overwork or excessive workload. The application of Hatton is somewhat more limited in cases involving allegations of breach of contract, bullying or harassment. I will explore these issues in separate posts.

There are however portions of the guidance in Hatton which are in direct conflict with other subsequent case law.

For instance in Barber v Somerset (2004) 1 WLR the House of Lords stated that an employer owes an employee a duty not to continue to employ him/her where continued employment was likely to have an adverse impact on the individuals health and other adjustments would not assist. The House of Lords stated that it would be it would only be in ‘rare cases’ that the employee would be entitled to continue working under high pressure. This is in direct conflict with Point 13 of the 16 point guidance given in Hatton.

Further the case of Melville v Home Office which was one of the consolidated appeals in Hartman v South Essex Mental Health Trust (2005) EWCA Civ 6, the Defendant were found liable on the basis that the Claimant’s job was deemed to be intrinsically traumatic and therefore the Defendant owed a greater duty of care. This is at odds with point 4 of the above 16 point guide which states that no jobs should be regarded as intrinsically harmful to health.

I also have some reservations as to whether point 11 of the 16 point guidance above (regarding an employer who offers a confidential counselling service) can still be considered to be applicable. At the time that Hatton was decided, employer funded counselling services were not as common as they are now.

Fundamentally a counselling service has only limited value if the issues surrounding the Claimant’s employment (such as workload or management issues) remain unresolved. In essence counselling may seek to mask the problem but if the underlying issues causing the stress remain unresolved then counselling will surely be of limited effect. In Dickins v O2 (2008) EWCA Civ 1144 for instance the Defendant were liable despite offering a counselling service.

In my opinion, whilst the provision of counselling services may be a relevant factor, it is unlikely to provide a complete defence to a claim contrary to the guidance in Hatton.

Examples of Breaches of Duty

As to the exact nature of what constitutes a breach of duty, this will be case specific and potential breaches are numerous but common breaches of duty may include the following:

• Failing to refer an employee to Occupational Health;
• Failing to implement the recommendations of Occupational Health;
• Failing to conduct a return to work interview following a period of absence with stress;
• Failing to monitor an employees workload;
• Failing to act upon complaints made by employees regarding excessive workloads;
• Failing to implement a system of appraisals or other reviews to monitor an individuals workload and progress

Of particular relevance is how an employer seeks to manage an employees return to work after a period of absence with stress and it may be that civil liability only arises after an initial period off work with stress. For instance in Young v Post Office (2002) IRLR 660 the Defendant were liable for failing to implement an appropriate return to work plan thereby causing the Claimant to suffer a second breakdown.

In reality, cases of this nature are complex and require forensic examination of the facts of each individual case. A common sense approach should be taken by all parties concerned.

To find out more about Stress at Work claims go to www.michaellewin.co.uk/stress_at_work

 

 

 

 

 

 

Stress at Work Claims: The Basics

As advised in previous posts, the purpose of this blog is to explore the remedies available to individuals who are suffering difficulties at work both in the Civil Courts and Employment Tribunal.

I want to start by exploring the complex issues surrounding stress at work claims.

An Employer owes a number of duties to employee in the following areas:

• Contract
• Tort/Common Law
• Statute

If an Employer breaches these duties then this may give rise to a claim. A ‘Stress at Work’ claim is the common term used for a claim for psychiatric injuries and associated losses caused during the course of an individuals employment.

There are three basic requirements for a claim for stress at work as follows:

• The employer must have acted in breach of a duty. This duty could be in Contract, Tort or Statute. The leading case of Hatton v Sutherland (2002) ICR 613 established that the ordinary principles of any employer’s liability claim apply equally to a claim for stress at work. In essence the employer must have committed a legal wrong and I will explore in detail in subsequent posts the potential grounds for establishing liability in Tort (negligence), Contract and Statute.
• The employee must have suffered a recognised psychiatric illness as a result of the Employers wrong doing. A recognised psychiatric illness would be a illness which meets the diagnostic criteria for a psychiatric illness within either the ICD-10 or DSM-IV. These ‘scales’ are widely accepted guidelines on the diagnostic criteria for psychiatric illness and such injuries may range from quite serious, long lasting conditions such as, for instance, Post Traumatic Stress Disorder to more minor, short lived, conditions such as perhaps an Adjustment Disorder or Mild Depressive Episode. ‘Stress’ is not per se an injury but is more properly regarded as the mechanism by which an injury could occur. There is (generally) no liability for symptoms of ‘stress’. There is an exception to this requirement under the Protection from Harassment Act 1997 but from a practical perspective it is unlikely to be economical to pursue legal action unless an employee has suffered a recognised psychiatric illness.
• The injury, loss or damage must have been ‘reasonably foreseeable’ to the Employer. This can be particularly problematic in Stress at Work Claims and I will explore this issue in further detail in subsequent posts.

History of Stress Claims

The first recognised Stress at Work claim was Walker v Northumberland County Council (1994) EWHC QB2 however despite this case being heard in 1994, 20 years ago, the law has been relatively slow to develop.

There were a series of significant cases which occurred in the early part of the 21st century, the most significant of which is Hatton v Sutherland (2002) ICR 613 which is still considered to be the leading authority on stress claims.

There has been a gradual development of this area of law since Hatton and in more recent years there have been several notable decisions which have further sought to refine this area of law.

In recent years claims for Stress at Work have become more widespread. Personally I think there are several reasons for this:

1. There is generally greater awareness, and greater acceptance, of the impact work can have on an individual’s mental health;
2. Historically there has been a lot of stigma attached to mental illness however there are now several recognised initiatives in place to improve Employers understanding of mental health. See my previous article http://www.michaellewin.co.uk/stress-costs-the-european-economy-billions
3. The recession has had a significant impact, particularly in the public sector, with substantial job cuts resulting in a higher workload and more stress for employees.
4. The public have become increasingly aware of their legal rights.

All stats point to the fact that Stress at Work continues to rise and consequently it is likely that claims will continue to rise. In subsequent posts I will look in greater detail at how to establish liability in Tort, Contract and Statute.

 

Employment Claim v Civil Claim: What’s the Difference?

For many, the automatic (and mistaken) assumption is that wherever a dispute or difficulty arises between an employer and employee, that legal action can only be pursued through the Employment Tribunal. This is simply incorrect.

The individual will often seek advice from an Employment lawyer who will usually only advise on the individuals options in the Employment Tribunal, and entirely overlook the potential civil remedies available.

Fundamentally, an employment contract is a contract, and breach of that contract is, generally, actionable in the civil courts. Furthermore, an employer owes an employee a duty in both Tort and Statute. As a result, action may exist in the civil courts where it will not in the Employment Tribunal.

This is particularly relevant where, for instance, the employment contract has not come to an end (either through dismissal or resignation), because the potential cause for action in the Employment Tribunal is limited. Indeed, the principle claim which can be brought in the Employment Tribunal if an employment contract has not come to an end, is a claim for discrimination. However the difficulty is that in order to have a claim for discrimination, the employee must demonstrate that they have a ‘protected characteristic’.

Another potential claim would be for ‘whistleblowing’ but this has become more difficult recently, as the Employment Tribunal have looked to restrict what amounts to public interest disclosure.

Over the coming weeks, I will be writing blogs examining the causes of action in both the Employment Tribunal and Civil Courts in greater detail, but the typical causes of action in each jurisdiction are as follows:

Employment Tribunal

• Constructive Dismissal;
• Unfair Dismissal;
• Discrimination under the Equality Act 2010;
• Harassment or Victimisation under the Equality Act 2010;
• Whistleblowing;

Civil Courts

• Stress at Work Claims in negligence (a personal injury claim for psychiatric injury caused during the course of an individual’s employment);
• Claims for harassment under the Protection from Harassment Act 1997;
• Common law claims for bullying and harassment;
• Breach of Contract;
• Claims for Injunctions;
• Breach of Statutory Duty (subject to the provisions of the Enterprise and Regulatory Reform Act 2013)

It is often the case that an individual may have multiple causes of action from the list above. There are important differences however, in the legal tests associated with the above causes of action. For example, the same set of facts could give rise to both civil and employment claims, but due to different legal tests it is possible that one of these claims would fail where the other could succeed.

It is important to note that the law dictates that the above causes of action must be pursued in the appropriate jurisdiction, for instance it is not legally possible to pursue a claim for work place discrimination in the civil courts, and similarly a stress claim cannot be pursued in the Employment Tribunal.

Can an Employee Pursue Claims in Both The Tribunal and Civil Courts?

This is a complex question for which there is no straight forward answer. I will be examining this issue in much greater detail in a separate blog post, but the starting position is that the Courts/Tribunals want to see finality to litigation in one set of proceedings wherever possible. If it is possible for all of the issues between  parties to be resolved in one set of proceedings, then the Court/Tribunal will look to resolve all potential claims, and any subsequent ‘secondary’ claim may be considered to be an abuse of process.

However, due to the different jurisdictions of the civil courts and employment tribunal, it is often the case that both civil and employment claims can be pursued concurrently. It is vital however that an employee seeks expert legal advice regarding all potential claims, both civil and employment, prior to embarking on a claim so that the individual is aware of the potential consequences of pursuing each cause of action.

Key Differences Between Claims in the Tribunal and the Civil Courts

As stated above, certain causes of action have to pursued in either the civil courts or tribunal, and there is no choice in which forum to pursue these causes of action, but it may be that the same facts give rise to multiple causes of action so in essence, an individual may still have a choice in which forum to pursue an action, albeit it would be based on different legal principles. The key distinctions between the two jurisdictions are as follows:

•  There is generally no provision (or very limited provision) for recovery of legal costs in the Employment Tribunal. Therefore an individual will almost always have to pay their own legal costs of pursuing a tribunal claim. In the civil courts a Claimant is often able to recover a substantial proportion of the legal costs of bringing their claim from the Defendant;
• In the Civil Courts there is a risk that an unsuccessful Claimant will have to pay the Defendant’s costs of defending the claim. It may therefore be necessary to purchase an insurance premium to insure this risk. The costs of such an insurance premium will not be recoverable from the Defendant. If the Claimant’s claim includes personal injury (for instance a stress claim or claim under the Protection from Harassment Act 1997), then the claim will be subject to ‘Qualified One Way Costs Shifting’ which means, in brief, that the Defendant will ordinarily have to pay their own legal costs even if the Defendant successfully defends the claim. Therefore if the claim involves personal injury, the Defendant’s ability to recover costs is limited and the Claimant’s position is similar to as if the claim had been pursued in the Tribunal.
• The Limitation periods in civil claims are much more generous than in the Tribunal. The Limitation period for a claim for personal injuries is generally three years from the date of the Claimant’s knowledge that they have suffered an injury. The Court further have a discretion to extend this period beyond three years. Claims for Breach of Contract or under the Protection from Harassment Act 1997 have a 6 year limitation period. The limitation period in the Employment Tribunal is generally only 3 months although there is some limited provision to extend this, particularly in discrimination cases, but nevertheless claims in the Employment Tribunal have to be pursued much sooner than claims in the civil courts.
• The tribunal process is designed to be more informal and there is now in place a system for compulsory referral of all claims to ACAS in order to attempt to mediate employment claims prior to commencement of formal proceedings. Whilst Mediation and other forms of Alternative Dispute Resolution are available in the civil courts, there is currently no compulsory obligation to consider this.
• If the civil claim includes personal injury then it is highly likely that the claim will be handled, defended and ultimately satisfied by an insurer on behalf of an employer. This can however be beneficial as the insurer will look at matters independently from a perspective of minimising any claim on a policy whereas in the employment tribunal matters can, perhaps, become more ‘personal’ for an employer where any damages will be payable from their own pocket.

All in all, there can be a lot for an individual to consider before embarking on legal action. If you need further advice please go to www.michaellewin.co.uk/stress_at_work

 

The ‘Stress’ Blog Is Here!

The European Commission recently announced the launch of the Healthy Work Places Campaign 2014-2015 which is set to focus on issues of mental health and particularly stress in the work place (see http://www.michaellewin.co.uk/the-ec-launch-healthy-workplaces-campaign). Following on from this a group of leading European Organisations have set up an initiative called ‘Target Depression in the Workplace’ which is also seeking to reduce the growing numbers of individuals suffering with work related stress and mental illness.

All of the stats I have seen show that work related stress is continuing to rise and has continued to do so for a number of years. The cost to the economy is staggering and has been compounded by the recession and continued cuts in public spending. The problem has been that many employers do not believe in stress at work or psychiatric illness and there is a certain degree of stigma attached to mental illness with many employers continuing to believe that stress is given as an excuse or that staff are ‘faking it’.

This culture needs to change and I am firmly of the belief that litigation is a key driving factor towards change. Take, for example, the PPI scandal with the Banks. It was only as a result of litigation that the public became aware of the issues surrounding Payment Protection Insurance.

I have created this blog to explore the law surrounding stress at work claims and to explore legal avenues available to individuals both in the Civil Courts and in the Employment Tribunal. This is a hugely complex area of law and is widely misunderstood.

It is important that individuals understand all of their options as all too often I have spoken to potential clients who have acted on bad or misleading advice which has ultimately prejudiced their position.

As with any profession, there are those who excel and there are those who, frankly, do not. I have long since given up on any hope of being able to play football like Messi or Ronaldo, and as much as I would like to be earning millions of pounds a year playing football, I can’t.

Law, of course, is no different. I know a lot of excellent Employment and Personal Injury Lawyers (The Messi or Ronaldo equivalents so to speak), but also some who do not possess the same kind of talent, (in the same way that I do not possess the same footballing talent as Ronaldo or Messi – as much I may claim to the contrary).

I hope that with my understanding of law, I will be able to share some of my knowledge and experience (legal experience not football you’ll be glad to hear), in order to help individuals grasp the legal technicalities surrounding stress at work and how individuals can protect their position where difficulties at work start affecting their health.

Over the coming weeks I will write weekly blogs exploring some of the following issues in much more detail:

• the overlap between Employment Law and Personal Injury
• Claims in Negligence
• Claims for Breach of Contract
• Claims under the Protection from Harassment Act 1997
• Harassment Claims under the Equality Act 2010
• Common law bullying and harassment claims
• Estoppel/Abuse of Process
• Causation of Psychiatric Illness

If anyone reading blog would like to discuss claims for stress at work or employment issues then please contact me on 0113 2009730.