The document examines the inter-relationships between tortious liability in personal injury law and employment law with regards to stress at work claims. It provides an overview of relevant academic literature and case law on this topic. The key cases discussed establish that employers owe a duty of care to employees to avoid subjecting them to stress that could reasonably foreseeably cause psychiatric injury. While employers are generally not responsible for normal workplace stressors, they can be liable if they fail to address situations that clearly pose risks of stress-related harm to a particular employee, especially if the employee's vulnerabilities are known. Occupational health services and counseling alone are not sufficient to discharge an employer's duty of care. Liability depends on the specific facts of each case.

1. Stress at Work Claims: An Examination of How
the Inter-Relationships Between Tortious Liability
in Personal Injury Practice and Employment Law
Practice Can Help Claimant Personal Injury
Practitioners
Rushmi Sethi*
LPC, LLM (Distinction), BA (Hons) Law and Business
space inserted for keywords
Abstract
The inter-relationships between tortious liability in a personal injury context and an employment law
context with regard to stress at work have not been previously examined in depth. Eleven semi-structured
interviews were conducted with 11 lawyers on a national basis with either personal injury and/ or
employment law practice backgrounds for the writer’s Master of Laws dissertation on stress at work. The
data was analysed and used for the conclusion in this article to assist Claimant Personal Injury
Practitioners. The inter-relationships between tortious liability in personal injury practice and employment
law practice with regard to stress at work involve some overlap.
RS
Introduction
The Health and Safety Executive defines work-related stress as “The adverse reaction people have to
excessive pressure or other types of demand placed on them.”1
In Great Britain, work-related stress accounts
for over a third of all new incidences of ill health; each case of work-related stress, depression or anxiety
related ill health leads to an average of 30.6 working days lost, and a total of 13.5 million working days
were lost to work-related stress, depression and anxiety in 2007/8.2
This adverse reaction can show itself
in symptoms which can range from frequent crying to sleeping problems.3
The inter-relationships between tortious liability in a personal injury context and an employment law
context with regard to stress at work claims have not been previously examined in depth. There have been
legal developments in work-related stress claims which shifts the focus from the tort of negligence in
personal injury claims to tort concepts being argued in employment law claims, following the House of
Lord’s decision in Majrowski v Guy’s and St Thomas’s NHS Trust4
where the “Claimant went off work
because of stress and yet brought no claim against his employers for breach of duty of care.”5
*
Rushmi Sethi is a LPC/LLM Employment law (Distinction) Postgraduate/ Law Graduate, and is a Voluntary Legal Advisor for Northampton
Citizens Advice Bureau, email: Rushmi_sethi@yahoo.co.uk.
1
See http://www.hse.gov.uk/stress/index.htm [Accessed October 22, 2010].
2
See http://www.hse.gov.uk/stress/why.htm [Accessed October 22, 2010].
3
Symptoms listed by NHS direct online: http://www.nhsdirect.nhs.uk/articles/article.aspx?articleId=350&sectionId=31889 [Accessed October 22,
2010].
4
Majrowski v Guy’s and St Thomas’s NHS Trust [2006] 4 All E.R. 395 HL [70]–[74] (Baroness Hale).
5
Majrowski v Guy’s and St Thomas’s NHS Trust [2005] Q.B. 848 CA [107] (Scott Baker L.J.).
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2. Key unresolved questions that arise are: what are the significant issues which cause Claimant Lawyers
to choose the County Court (“CC”) or Employment Tribunal (“ET”)? What are the inter-relationships
between tortious liability in personal injury practice and employment law practice with regard to stress at
work claims? This final question brings us to the main investigation of this article, that is, an examination
of the inter-relationships between tortious liability in personal injury practice and employment law practice
with regard to stress at work, and how can this help the claimant personal injury practitioner.
A literature review of both relevant academic and professional works was undertaken to understand
recent developments on stress at work claims, provide critical analysis and observations relating to the
main investigation of the inter-relationships between tortious liability in personal injury practice and
employment law practice with regard to stress at work.
Eleven semi-structured interviews were conducted with 11 lawyers on a national basis with either
personal injury and/or employment law practice backgrounds for the writer’s LLM Master of Laws
dissertation on stress at work. The data was analysed and used for the conclusion in this article to assist
claimant personal injury practitioners.
Literature review
Overview of Academic Literature—tortious liability for work-related stress
Barrett6
contends that bringing a stress at work claim against an employer by an employee may be based
upon breach of one or more implied terms of the employment contract (trust and confidence, or failure of
duty to take reasonable care of employee’s safety), or the tort of negligence. Such claims have therefore
been pursued either in the common law courts or employment tribunals.
In Barber v Somerset CC, Lord Rodger concluded that:
“When the contractual position, including the implied duty of trust and confidence, is explored fully
along with the relevant statutory framework, your Lordships may be able to give appropriate content
to the duty of reasonable care upon which employees, such as Mr Barber, seek to rely. But the
interrelationship of any such tortious duty with the parties’ duties under the contract of employment
has not been examined in any depth in the cases to which we were referred and was not analysed in
this appeal.”7
This literature review focuses on the inter-relationships between tortious liability in personal injury practice
and in employment law practice with regard to various forms of stress at work in line with the main
investigation already introduced.
Tortious claims in personal injury practice for work-related stress
The first landmark case was Walker v Northumberland CC8
where Colman J. held the employer liable in
negligence to a claimant who suffered a second nervous breakdown through excessive workload as the
first breakdown had made the subsequent injury foreseeable. Colman J. asserted that:
“… there is no logical reason why risk of psychiatric damage should be excluded from the scope of
an employer’s duty of care or from the co-extensive implied term in the contract of employment”9
6
B. Barrett, “Employer’s Liability for Stress at the Workplace: Neither Tort nor Breach of Contract?” (2004) 33 I.L.J. 4 p.344 and 348.
7
Barber v Somerset C C [2004] 2 All E.R. 385 HL at [35].
8
Walker v Northumberland CC [1995] I.R.L.R. 35 QB.
9
Walker v Northumberland CC [1995] I.R.L.R. 35 QB at p.41.
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3. The High Court in Walker appears to have expanded the scope of the employer’s duty to provide a safe
system of work.10
In Cross v Highlands and Islands Enterprise11
Lord Macfadyen for the Court of Session considered the
employers owed the deceased, as their employee:
“a duty to take reasonable care not to expose him to working conditions which were reasonably
foreseeably likely to subject him to such stress as to be likely to cause him psychiatric injury”12
but dismissed the deceased’s family application because they failed to prove the employers were in breach
of that duty.
Hale L.J. formulated in Hatton v Sutherland 13
16 “practical propositions” applicable to cases where
complaint is made of psychiatric illness brought about by stress at work. All are valuable but:
“the threshold question is whether [psychiatric] harm to this particular employee was reasonable
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). … Foreseeability depends
upon what the employer knows (or ought reasonably to know) about the individual employee. … 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.”14
Barrett15
asserts this and the remaining propositions relate “to the circumstances in which the employer’s
conduct may be deemed negligent” and the Court of Appeal in Hatton upheld the award by the CC in only
one of the four stress at work cases heard together before it.
In Barber v Somerset CC,16
the House of Lords allowed the appeal, from the Hatton ruling of one of
the three claimants who did not succeed in his stress at work claim, on the basis that the propositions had
in Mr Barber’s case been wrongly applied to the evidence before the CC. Lord Walker, who gave the
leading judgment, described the propositions set out by the Court of Appeal in Hatton as “useful practical
guidance, but it must be read as that, and not as having anything like statutory force”.17
The House of
Lords affirmed that the overall test is still the conduct of the reasonable and prudent employer taking
positive thought for the safety of its workers in the light of what it knows or ought to know, a test proposed
by Swanwick J. in Stokes v Guest Keen & Nettlefold (Bolt & Nuts) Ltd.18
In Hartman v South Essex Mental Health and Community Care NHS Trust,19
the Court of Appeal heard
six appeals concerning psychiatric injury caused by work-related stress. In every case (except Moore) the
principal issue in the appeal was whether psychiatric injury was reasonably foreseeable, and there was
significant reference to either an employer’s counselling service or its occupational health department.
Scott Baker L.J. affirmed the usefulness of the guidance provided by Hale L.J. in Hatton. The judgment
of the Court of Appeal was that employer’s liability for psychiatric injury caused by stress is in general
no different from liability for physical injury, but that liability arises from foreseeable injury flowing from
the employer’s breach of duty. Two of the claimant’s appeals were accordingly successful.
10
The Health and Safety at Work Act 1974 states that employers have a duty to ensure that, as far as is reasonably practicable, their workplaces are
safe and healthy. They also have to take measures to control any risks that they identify.
11
Cross v Highlands and Islands Enterprise [2001] I.R.L.R. 336 Court of Session OH Sc.
12
Cross v Highlands and Islands Enterprise [2001] I.R.L.R. 336 Court of Session OH Sc at (g) conclusion on common law fault, for reasons
discussed in [53]-[95].
13
Hatton v Sutherland [2002] 2 All E.R. 1 at [43] CA. In 4 consolidated appeals concerning claims brought by employees against employers for
psychiatric illness caused by stress arising from work.
14
Hatton v Sutherland [2002] 2 All E.R. 1 [43] (2), (3) (Hale L.J.).
15
B. Barrett, “Employer’s Liability for Stress at the Workplace: Neither Tort nor Breach of Contract?” (2004) 33 I.L.J. 4 p.344.
16
Barber v Somerset CC [2004] 2 All E.R. 385 HL.
17
Barber v Somerset CC [2004] 2 All E.R. 385 at [65].
18
Stokes v Guest Keen & Nettlefold (Bolt & Nuts) Ltd [1968] 1 W.L.R. 1776.
19
Hartman v South Essex Mental Health and Community Care NHS Trust [2005] I.C.R. 782 CA.
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4. Furthermore, the Court of Appeal confirmed that where an employee is referred to the employer’s
occupational health department, such information is to be treated as confidential and cannot be attributed
to an employer’s knowledge of either disability or psychiatric problems unless the employee waives their
right to confidentiality. This decision has been followed by the Court of Appeal in Harding v Pub Estate
Co Ltd,20
which held that to succeed in a claim for stress at work, such harm must have been reasonably
foreseeable and therefore the employer must have had some indication of possible harm to his employee.
Consequently, the employee cannot rely on information confidential to him in establishing the extent of
reasonable foreseeability. Thus, in Harding it was considered unreasonable to expect the employers to
have taken protective steps because the claimant pub manager had not notified his employers of his heart
condition, and his complaints about the environmental factors (violent and abusive customers) were outside
the employer’s control.
The Court of Appeal in Hone v Six Continents Retail Ltd21
unanimously dismissed the employer’s
appeal, and held that:
“‘the county court judge had not erred in holding that it was reasonable foreseeable that the Claimant
pub manager would suffer psychiatric injury if he continued to work long hours without adequate
support and that, in failing to provide that support, the employers were liable for the injury which
the Claimant sustained as a result of stress at work.”
Dyson L.J., who gave the leading judgment, in Hone, considered that the key to determining reasonable
foreseeability was Hale L.J.’s seventh proposition from Hatton, namely:
“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 have done something
about it.”
He described this as a “clear and workable test to apply”.22
In Hone, the claimant complained about his excessive hours and tiredness, requested (unsuccessfully)
an assistant manager, recorded working hours of approximately 90 hours per week and refused to sign an
opt-out from the maximum 48-hour limit under the Working Time Regulations 1998 (“WTR”).23
As in
Harding, there was no history of complaints about the claimant’s health, but in Hone the claimant still
won. Lord Dyson explained:
“the significance of the Regulations is that, where an employee refuses to give his consent, an employer
may not require the employee to work more than 48 hours per week. The plain and obvious purpose
of the Regulations is to protect the welfare and health of employees.”24
In short, Lord Phillips concluded that stress at work cases are “fact-based”25
and that the appeal court is
reluctant to interfere with the findings of the trial judge. This case appeared a straightforward tort action
for personal injury damages for stress-related psychiatric injury and Lord Phillips criticised the defendants
for bringing the case to appeal.26
In Daw v Intel Corp (UK) Ltd,27
the defendant employer appealed as to liability and quantum, contending,
inter alia, that the provision of counselling services had discharged its duty of care and that, had that
service been used by the claimant, the urgency of the situation would have become clear to it. However,
20
Harding v Pub Estate Co Ltd [2005] EWCA Civ 553.
21
Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; [2006] I.R.L.R. 49 p.49 CA.
22
Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; [2006] I.R.L.R. 49 at [15].
23
Working Time Regulations 1998 (SI 1998/1833).
24
Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; [2006] I.R.L.R. 49 at [13] p.52.
25
Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; [2006] I.R.L.R. 49 at [20] p.53.
26
Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; [2006] I.R.L.R. 49 at [21] p.53.
27
Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70; [2007] 2 All E.R. 126 CA.
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5. the Court of Appeal unanimously dismissed the defendant’s appeal on both liability and quantum. Pill
J.,28
who gave the leading judgment, considered that the judge had been fully entitled to hold that the
claimant’s stress and ill-health had been caused by a failure of management, and that the injury had been
foreseeable enough by early March 2001 to require immediate action by management reducing her
workload. Pill L.J. concluded that:
“the reference to counselling services in Hatton’s case does not make such services a panacea by
which employers can discharge their duty of care in all cases.”29
This case therefore shows the limitations of the guidance in Hatton.
Barrett comments on Intel and agrees that:
“it is very clear that an occupational counselling service is not a panacea for occupational stress;
there is always an overriding responsibility on management to identify and address work situations
that create a risk of psychiatric injury due to stress.”30
Clearly, the judgment of the Court of Appeal in Intel indicates that the mere existence of such a counselling
service is not a defence, and each stress at work case must be decided on its own facts.31
In Dickins v O2 Plc,32
the Court of Appeal dismissed O2’s appeal and affirmed judgment for the claimant
that O2 was liable for stress induced personal injury suffered by one of its employees, on the basis that
the propositions as laid out in Hatton had in the claimant’s case been correctly applied to the evidence
before the CC. Lady Justice Smith, who gave the leading judgment, applied Intel and held that the mere
suggestion of confidential counselling was not an adequate response, and criticised the defendant’s counsel
for placing strict reliance on Hatton’s guidance stating “how dangerous it is to apply guidance given by
the court as though it were a statutory provision”.33
Tortious claims in employment law practice for work-related stress: breach of implied
contractual terms
Lord Steyn in Malik v Bank of Credit and Commerce International SA (In Liquidation)34
stated that:
“The major importance of the implied duty of trust and confidence lies in its impact on the obligations
of the employer… and the implied obligation as formulated is apt to cover the great diversity of
situations in which a balance has to be struck between an employer’s interest in managing his business
as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”
Lord Steyn adopts the contractual approach as explained by Douglas Brodie:
“In assessing whether there has been a breach, it seems clear that what is significant is the impact of
the employer’s behaviour on the employee rather than what the employer intended. Moreover, the
impact will be assessed objectively.”35
From the perspective of the obligations imposed upon the employer, the implied duty of mutual trust and
confidence has been defined as a duty that:
28
Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70; [2007] 2 All E.R. 126 CA at [42].
29
Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70; [2007] 2 All E.R. 126 CA at [45].
30
B. Barrett, “Counselling Service not a Substitute for Stress Management” (2007) 36 I.L.J. 2 p.224.
31
Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70; [2007] 2 All E.R. 126 CA at [45].
32
Dickins v O2 Plc [2008] EWCA Civ 1144 CA.
33
Dickins v O2 Plc [2008] EWCA Civ 1144 CA at [28].
34
Malik v Bank of Credit and Commerce International SA (In Liquidation) [1997] I.R.L.R. 462 HL at [55].
35
Lord Steyn in [59] of his judgment of Malik v Bank of Credit and Commerce International SA (In Liquidation) [1997] I.R.L.R. 462 HL quotes
Brodie, “Recent Cases, Commentary, The Heart of the Matter: Mutual Trust and Confidence” (1996) 25 I.L.J. 121 pp.121–122.
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6. “… the employer will not, without reasonable and proper cause, conduct itself in a manner calculated
or likely to destroy or seriously damage the relationship of confidence and trust between employer
and employee.”36
Lord Steyn gave a broad clarification to the meaning of the duty by holding that in order for there to be
a breach, it was necessary neither for the employer’s conduct to be directed at the employee as an individual,
nor for the employee to have been aware of the breach while it was taking place.37
In Johnson v Unisys Ltd, Lord Steyn points to the trust and confidence duty as constituting an
“overarching obligation implied by law as an incident of the contract of employment”.38
The House of
Lords in Johnson rejected a claim in contract, alleging breach of the implied term of trust and confidence,
for damages for psychiatric injury arising from the manner of dismissal.
Brodie argues that the implied obligation of mutual trust and confidence “acknowledges the human
factor in employment relations by promoting the dignity of the worker”39
as evidenced by the case of Reed
v Stedman40
where the failure to investigate complaints of sexual harassment “was enough to justify a
finding of breach of trust and confidence by the employer”.
Brodie states that where the employer holds discretionary powers under the employment contract:
“it appears particularly important to guard against abuse of power given the imbalance of power that
is almost inevitable in the employment relationship”
and suggests that a written discretionary power must be exercised subject to the obligation of mutual trust
and confidence.41
Indeed, the EAT have used the implied term of trust and confidence to impose limitations
on the managerial prerogative given by express terms in the cases of United Bank v Akhtar,42
and the High
Court in Imperial Group Pension Trust v Imperial Tobacco Ltd.43
In McCabe v Cornwall CC,44
the House of Lords did not interfere with or discredit the reasoning of the
Court of Appeal’s decision that the employer breached the implied contractual duty of mutual trust and
confidence where they suspended an employee for four months following allegations of improper conduct
without informing him of the allegations, and in failing to carry out a proper investigation before dismissing
him.
The employer generally has the economic bargaining power to insert terms in the employment contract
which best serve the employer’s interests. It is also the employer who issues orders under the contract.
Both these points engender a high level of managerial prerogative. It is not clear whether terms implied
by law such as the duty of mutual trust and confidence can be expunged by express terms. In Johnstone
v Bloomsbury HA,45
the Court of Appeal held that an express term requiring junior doctors to be “available”
for 48 hours over and above their normal 40-hour week could not stand in the face of the implied term to
protect the employees’ health and safety. Browne-Wilkinson V-C argued that the implied term must
co-exist with the express term “without conflict”.46
The court confirmed that the duty of care is an implied
36
Malik v Bank of Credit and Commerce International SA (In Liquidation) [1998] A.C. 20, [35] per Lord Nicholls and [45] per Lord Steyn adopting
the wording of Browne-Wilkinson J. in Woods v WM Car Services(Peterborough) Ltd [1981] I.C.R. 666, 670 (which was also approved in Lewis v
Motorworld Garages Ltd [1985] I.R.L.R. 465 CA); and see Lindsay J., “The Implied Term of Trust and Confidence” (2001) 30 I.L.J. 1, pp.2–6 regarding
whether the test is “calculated and likely” or “calculated or likely”.
37
Malik v Bank of Credit and Commerce International SA (In Liquidation) [1997] I.R.L.R. 462 HL at [468]–[469].
38
Johnson v Unisys Ltd [2001] I.R.L.R. 279 HL, [284], [24] (Lord Steyn dissenting).
39
D. Brodie, “Mutual Trust and the Values of the Employment Contract” (2001) 30 I.L.J. 84, 1.0
40
Reed v Stedman [1999] I.R.L.R. 299.
41
D. Brodie, “Mutual Trust and the Values of the Employment Contract” (2001) 30 I.L.J. 84, 5.B
42
United Bank v Akhtar [1989] I.R.L.R. 507.
43
Imperial Group Pension Trust v Imperial Tobacco Ltd [1991] I.R.L.R. 66.
44
McCabe v Cornwall CC [2004] UKHL 35; I.C.R. 1064 In McCabe, the claimant alleged that he had sustained psychiatric injury as a result of his
suspension and the employer’s failure properly to investigate allegations against him or to inform him of those allegations.
45
Johnstone v Bloomsbury HA [1991] I.R.L.R. 118.
46
Johnstone v Bloomsbury HA [1992] Q.B. 333, 350.
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7. term which is capable of overriding the employer’s exercise of discretion based upon express contractual
powers. Note that the WTR now limit normal weekly hours to 48, but permit written agreement to vary
this provision47
and exclude doctors in training from their provisions.48
In Barber v Somerset CC,49
the House of Lords held that a local authority was in breach of its duty to
its employee to take reasonable care to avoid injuring his health where it had become aware that his
difficulties at work were having an adverse effect on his mental health, but had taken no steps to help him.
Lord Rodger approved Johnstone in this case. It could be argued that the analysis in Johnstone translates
to the implied duty of trust and confidence in that it works in the same way.
The employee who claims to have suffered psychological injury related to stress at work may maintain
that the employer’s behaviour is a breach of the obligation to take reasonable care, as in Foumeny v
University of Leeds.50
However, the claimant in that case did not succeed.
In Eastwood v Magnox Electric plc51
the House of Lords held that the implied duty of trust and confidence
could not be used to limit the employer’s prerogative of termination of the contract of employment. In
Johnson, the majority (Lord Steyn dissenting) ruled that the common law should not be developed in a
way which would undermine the separate, statutory jurisdiction of unfair dismissal. Whereas Malik may
be applicable to breaches of contract arising during the employment relationship, it was not relevant to
the manner of termination.
Mr Justice Elias argues that where this duty of trust and confidence:
“has imposed limits on the exercise of contractual or prerogative powers, it is misleading to see the
principle operating either as undermining the relationship itself or requiring a fundamental undermining
of the relationship.”52
Cabrelli argues that there is a “mismatch between the traditional implied duty to exercise reasonable care
and the duty of mutual trust and confidence”.53
For example, isolated acts of negligence will amount to a
breach of the implied duty to take reasonable care, which is different to the position in respect of the duty
of trust and confidence. With the duty of trust and confidence, a sequence of events that would not be
actionable individually can be taken cumulatively to amount to a breach of duty, provided that they are
arbitrary or capricious to such an extent that trust is undermined.
Recently, in GAB Robins (UK) Ltd v Triggs,54
the Court of Appeal considered an issue as to whether a
loss of earnings was recoverable in a constructive dismissal case based on a breach of trust and confidence,
where the employer caused stress and depression to the employee which preceded the date of dismissal
led to a loss of earnings. It was contended by the employer, on the basis of Eastwood v Magnox, that the
claimant’s loss of earnings was not in consequence of her dismissal but because of pre-dismissal incapacity.
The Court of Appeal first held that it was correct that the employee had been constructively dismissed
because the acts relied upon by the employee of overwork and bullying amounted cumulatively to a breach
of the implied term of trust and confidence as at the time she went on sick leave.
47
Working Time Regulations 1998 (SI 1998/1833) reg.4.
48
Working Time Regulations 1998 (SI 1998/1833) reg.18. In a separate case in September 2003 the ECJ held that all time spent by a doctor on call
in a hospital constitutes working time for the purposes of the Working Time Directive (Landeshaupstadt Kiel v Jaeger, (C-151/02) [2003] I.R.L.R.
805 ). The Horizontal Amending Directive 2000/34 amending Directive 93/104 concerning certain aspects of the organisation of working time to cover
sectors and activities excluded from that Directive [2000] OJ L195/41 requires that the exemption from the 48 hour maximum working week must be
phased out for doctors in training by July 31, 2009 (with possible extensions to at the very latest July 31. 2012).
49
Barber v Somerset CC [2004] 2 All E.R. 385 HL.
50
Foumeny v University of Leeds [2003] EWCA Civ 557 CA.
51
Eastwood v Magnox Electric plc [2002] I.C.R. 1064 HL. In Eastwood the claimants alleged that they had suffered psychiatric injury as a result
of a deliberate course of conduct by certain individuals using the machinery of the disciplinary process.
52
L.J. Elias, “The duty of trust and confidence” (2003) ILS December conference, pp.1–5.
53
D. Cabrelli, “The Implied Duty of Mutual Trust and Confidence: an emerging overarching principle?” (2005) 34 I.L.J. 4 pp.290–296.
54
GAB Robins (UK) Ltd v Triggs [2008] EWCA Civ 17 CA.
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8. Secondly, the Court of Appeal overturned the EAT’s decision on remedy. The Court of Appeal held
that loss sustained by a claimant in consequence of a constructive unfair dismissal within the Employment
Rights Act 1996 s.123 did not include loss flowing from illness and reduced earning capacity caused by
the employer’s antecedent breaches of the implied term of trust and confidence. However, the claimant
had an accrued right for a common law claim for the losses caused by the antecedent breaches of the
implied term as to trust and confidence. This “last straw” case shows how a purely employment law claim
for constructive unfair dismissal was initially pursued where the claimant had suffered from work-related
stress.
The “last straw” doctrine states that an employee may resign in response to an act or omission by his
employer that would not of itself amount to a repudiatory breach, if it contributes to a whole course of
conduct which amounts to a breach of the implied term of trust and confidence.55
There is greater scope
for employee relief in the case of the duty to exercise reasonable care than in the case of duty of trust and
confidence. However, a single oppressive act by the employer may escape through the cracks of the duty
of care in negligence yet breach the implied duty of trust and confidence. The opportunity to argue an
extension of the duty of mutual trust and confidence to conduct which causes psychological harm became
ever-present.
In Gogay v Hertfordshire CC,56
the Court of Appeal upheld an employee’s claim for damages for
psychological injury arising from the employer’s breach of trust and confidence as the suspension of the
employee had not been warranted. The case was distinguishable from Addis v Gramophone Co Ltd57
and
Johnson because it was about suspension rather than dismissal. The significance of the suspension being
that the employment relationship was still continuing.
Much of the case law involving the “duty of mutual trust and confidence” has arisen in the context of
unfair dismissal claims based on constructive dismissals where the courts have been prepared to make
expansive use of the implied term that the employer must not seriously damage the relationship of trust
and confidence between the employer and employee. Whereas workload cases have tended to be dealt
with as involving potential breaches of the “duty to take reasonable care for the safety of employees”.
Brodie58
observes:
“the potential for overlap between the two terms has increased since the scope of the obligation of
reasonable care was extended to encompass protection against infliction of psychological harm in
the employment context.”
Professor Freedland submits that Lord Steyn’s view is somewhat out of date when he observes the following
in The Personal Employment Contract59
:
“… we probably now have to accept that the implied obligation does not have quite such a strong
hold upon the common law of the contract of employment as appeared in the immediate aftermath
of the Malik case. At that time it appeared that it could be directly invoked as a principle of universal
application; now it appears to be mediated through distinct judge-made policy rules.”
55
“last straw” cases: Lewis v Motorworld Garages Ltd [1985] I.R.L.R. 465 CA; Woods v WM Car Services (Peterborough) Ltd [1982] I.C.R. 693
CA; Omilaju v Waltham Forest LBC (No.2) [2005] I.R.L.R. 35.
56
Gogay v Hertfordshire CC [2000] I.R.L.R. 703.
57
Addis v Gramophone Co Ltd [1909] A.C. 488.
58
Brodie, “Health and Safety, Trust and Confidence and Barber v Somerset County Council: Some Further Questions” (2004) 33 I.L.J. 3, p.261;
Walker v Northumberland [1995] 1 All E.R. 737 QB.
59
M. Freedland, The Personal Employment Contract( OUP, 2003) p.166, as quoted by D.Cabrelli, “The Implied Duty of Mutual Trust and Confidence:
an emerging overarching principle?” (2005) 34 I.L.J. 4 p.306.
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9. Brodie has stated that “more often than not, mutual trust and confidence cases strike at ‘bad behaviour’
by the employer”.60
However, in Eastwood v Magnox Electric plc, Lord Nicholls, while considering the
implied term of trust and confidence, stated that it would be “equally wrong to achieve the same result by
imposing a duty of care”61
and continued to say “development of the common law along these lines cannot
co-exist satisfactorily with the statutory code regarding unfair dismissal”. As Cabrelli concludes after his
analysis of relevant case law:
“all of the implied duties are inherently distinct and that, on balance, there is no evidence for the
emergence of the implied duty of mutual trust and confidence as an umbrella principle.”62
Overview of professional literature
Koch and Bracey consider that “workplace stress includes bullying, harassment, relationship-conflict and
workload-related problems”.63
It would appear that psychological injury caused by stress at work can have
an inter-relationship with bullying or harassment.64
What are the significant issues which cause claimant lawyers to choose the County Court
or Employment Tribunal?
Glyn65
considers that the significant issues which cause Claimant Lawyers to choose the CC or ET are
factors such as whether the claim involves vicarious liability, disability discrimination or personal injury,
the burden of proof, without prejudice considerations, costs issues, time limits and whether the claim is
large where the loss extends over a longer period.
What are the inter-relationships between tortious liability in personal injury practice
and employment law practice with regard to stress at work claims?
In Sheriff v Klyne Tugs (Lowestoft) Ltd66
the Court of Appeal held that compensation for personal injury
(psychiatric injury as well as injury to feelings) fell within the jurisdiction of an ET in a case concerning
the statutory tort of unlawful discrimination. The Court of Appeal also held that under the principle of
public policy, claims that have been or could have been litigated in one tribunal, should not be allowed
to be litigated in another, and that the claim was correctly struck out as an abuse of process. In this case,
the claimant alleged that as a result of racial abuse he had a nervous breakdown, and was later diagnosed
as suffering from stress and anxiety and was certified as unfit for work.
This case illustrates the overlap between discrimination claims involving personal injury in a tribunal
and civil law claims before the county or high courts, and the importance of bringing the claim in the
correct forum.
In Essa v Laing Ltd,67
a majority of the Court of Appeal held that reasonable foreseeability was not
required when recovering compensation for breach of the statutory tort of race discrimination. In this case,
the claimant could claim for the depression suffered as a result of racial abuse even though it was not
reasonable foreseeable.
The inter-relationship between tort in personal injury practice and employment law practice is shown:
60
D. Brodie, “Beyond Exchange: The New Contract of Employment” (1998) 27 I.L.J. 79 p.80.
61
Eastwood v Magnox Electric plc [2004] I.R.L.R. 733 at [10].
62
D. Cabrelli,”The Implied Duty of Mutual Trust and Confidence: an emerging overarching principle ?” (2005) 34 I.L.J. 4 p.307.
63
H. Koch, and R.Bracey, “Abstract: Employment Stress and DSM IV Psychological Disorders” (2006) PI Brief Update Law Journal: Medico-legal
articles (December) p.1.
64
Green v DB Group Services (UK) Ltd [2006] I.R.L.R. 764; Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 A.C. 224 HL.
65
C. Glyn, “Maximising Compensation for Claimants” (August 20, 2004) Cloisters, London, pp.6–12.
66
Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] I.C.R. 1170 CA.
67
Essa v Laing Ltd [2004] I.C.R. 747 CA.
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10. “in the context of discrimination claims in the case of Cannock v MoD, in which the Court, at length,
and persuasively, adopts the same approach as is adopted in civil law personal injury claims—once
a loss has been established, then the quantification of that loss is a matter for balancing the chances.”68
Indeed, the assessment of the award for general damages in the ET is done in the same way as one would
in the CC.
Conclusion
Langstaff considers that the inter-relationships between tort and employment law have resulted due to
four major developments in the law:
“1. the authoritative recognition, and development, of the implied term of trust and confidence;
2. the recognition that claims for psychiatric injury caused at work can successfully be sued
for, in the absence of physical injury;
3. the increase of jurisdiction of the ET, both in terms of total compensation and statutory torts
uniquely justiciable in the ET and;
4. the increasing impact of European regulation in the traditional personal injury context.”69
With regard to stress at work claims, it would appear true that the inter-relationships between tortious
liability in personal injury practice and employment law practice have resulted from the development of
the implied terms of trust and confidence and the duty of care; the recognition that claims for psychiatric
injury caused at work can successfully be sued for; and the increase of jurisdiction of the ET, both in terms
of total compensation for discrimination-type stress at work claims and statutory torts. However, it would
not appear true that it is as a result of the increasing impact of European regulation. Indeed, from the
writer’s empirical research70
and conflicting case law,71
European regulation on stress at work claims
appears to have had a neutral impact because it is limited by the strict requirements of foreseeability.
The perceptions and practices of lawyers from employment law and personal injury backgrounds
overwhelmingly suggest that the inter-relationships between tortious liability in personal injury practice
and employment law practice with regard to stress at work claims involve “some overlap”, because there
are potentially two different fora available for redress with an overlap of remedy.
In addition, where there was a statutory tort, an overlap occurs with the common law tort and that was
why there was some overlap, and an overlap exists between the principles of assessment of compensation
for personal injury available in the ET and CC. Again, it comes back to having potentially two different
fora available for redress, and that may be why the inter-relationships exist.
The perceptions and practices of lawyers from employment law and personal injury backgrounds suggest
that there will be both claimants pursuing stress at work claims via an employment law context, in terms
of discrimination-type stress claims in the ET, with statutory tortious liability because foreseeability of
the cause of injury is not essential; or a personal injury context, in the CC/ High Court with the common
law tort of negligence, where reasonable foreseeability is required.
As Langstaff puts it: “… no employment lawyer nor any personal injury lawyer can any longer afford
to be in ignorance of details of both”.72
68
B. Langstaff,”Tort and Employment law—married, just good friends or entirely divorced?” (Pt 2) (2004) 14 APIL PI Focus journal 2 p.14, now
The Honourable Mr Justice Langstaff.
69
B. Langstaff, “Tort and Employment law —married, just good friends or entirely divorced ?”(2004), 13 APIL PI Focus journal 1 p.12.
70
See quotes from the barrister 4.1.5 and 4.1.6 and Personal Injury Solicitor 3.1.5. and 3.1.6 in the writer’s dissertation on stress at work: an
examination of the inter-relationships between tortious liability in personal injury practice and employment law practice (supervised by Richard Benny).
71
Hone v Six Continents Retail Ltd [2006] I.R.L.R. 49 CA; Pakenham-Walsh v Connell Residential [2006] EWCA Civ 90 CA; Sayers v Cambridgeshire
CC [2007] I.R.L.R. 29 QB.
72
B. Langstaff,”Tort and Employment law—married, just good friends or entirely divorced ?”(2004), 13 APIL PI Focus journal 1 p.12.
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