Management

Employer’s responsibilities after Dickins

By Will Campbell ⋅ October 28, 2008 ⋅  Printable version ⋅

On 16th October, the Court of Appeal in London upheld the previous decision in Dickins v O2 where the claimant was awarded damages for injury caused by occupational stress. In their judgement, the Court have appeared to lower the standards for employees claiming damages against their employer for occupational stress. The previous leading stress case Hatton v Sutherland had set out a series of hurdles for the employee to cross before a claim had any prospect of succeeding, however, some of these have now been revised by this new judgement.

Background to Dickins

The case was brought by Ms Dickins against her employer, O2. Ms Dickins involved the preparation of management and regulatory accounts, and part of her job was to carry out a quarterly audit. She found the Feb 2002 audit “extremely stressful” and had a short holiday period. Upon returning to work in March she asked her line manager for a different, and less stressful job. As there were no vacancies at that time, she was told the matter would be reviewed in three months. She requested a 6 month sabbatical in April, and was advised to contact O2’s confidential counselling helpline, and told that her sabbatical request would be considered. On 30 May, during her Personal Development Review, she repeated her concerns and was referred to the occupational health department, with some delay. Before an appointment was fixed, she suffered a breakdown and never returned to work.

Changes to the law

Dickens v. O2 appears to have lowered the bar in favour of employees pursuing occupational stress claims against employers.

Reasonable forseeability

The old rule of thumb following on from Walker was that an employer would not be liable for the first breakdown a claimant suffered on the basis that it would not normally be forseeable. However, in Dickins, the Court of Appeal upheld the original judge’s ruling that psychiatric injury was reasonably forseeable in this case, as the employee had advised the company over a period of time of her difficulties.

Therefore, depending on the case, it may no longer be necessary to show the Claimant has previously suffered a breakdown if their words and actions in the recent past have a cumulative effect of alerting the Employer to the risk of illness.

Breach of Duty

In Hatton the Court of Appeal said that an employer who provided a confidential helpline would be unlikely to be in breach of its duty. In Dickins the provision of exactly such a helpline was held not to be sufficient. The Court agreed that the Employer should have made a “managerial intervention” at an early stage, with immediate referral to occupational health.

Confidential counselling was seen, after Hatton, as a way of exonerating the employer in its duty to its employees, however this must now be in doubt after Dickins.

Causation

In common with many stress cases there were a number of factors contributing to the claimant’s breakdown, many of them nothing to do with the employer. After Hatton the burden of proof was placed on the Claimant to show, where there were several potential causes of the claimant’s breakdown, that the employer’s breach of duty was one of them. In Dickins the court drew an “obvious inference” that the employer’s actions “tipped her 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”.

With the court now able to draw “obvious inferences” the burden of proof is now significantly lowered in practice.

Apportionment

The extent of employer’s liability, post Hatton was generally thought to be restricted to the degree of psychiatric injury attributable directly to the occupational stress, and not for any other cause or factors. The Dickins judgement would now seem to be follow other cases in not apportioning damages to causes or factors, and the employer will now be liable for the whole injury if it is proved that their breach of duty was a contributing factor.

Summary

Stress cases have normally been fought and decided on the twin grounds of forseeability and causation, but Dickins has made significant changes in favour of the claimant, making a case more likely to success. The previous “requirement” for a claimant to have a prior breakdown or some history in order to show that a current injury was forseeable has been removed, and the Courts can now draw inference on causes of injury, rather than the claimant being required to prove the employers actions were contributory.

Tags: dickins, employer, Management