In this article injury lawyer, Elizabeth Duncan, looks at a key component of any successful stress at work claim; foreseeability.
The legal concept of ‘foreseeability’ is of fundamental importance in determining whether an employer is legally liable for an injury suffered by one of its employees.
The concept is particularly central to stress at work claims.
In simple terms, for legal liability to arise, the stress illness must have been ‘reasonably foreseeable’ by the employer. In other words, the employer will not be held liable if a mental disorder arises ‘out of the blue’, without any indication that would alert a reasonable employer to a potential problem.
The courts have given clear guidance on ‘foreseeability’ in stress at work claims.
In the case of Sutherland v Hatton the court determined that there are two components to reasonable foreseeability:
First, there must be an injury to the Claimant’s health, as distinct from occupational stress.
Second, the injury must be attributable to stress at work, as distinct from other factors.
Foreseeability will depend upon what the employer knows (or should know) about their employee.
The courts recognise that generally speaking mental disorder can be harder to foresee than physical injury. However, it may be easier to foresee mental disorder in a known individual employee, as compared to the wider population.
Employers are usually entitled to assume that their employees are able to withstand the normal pressures of their work, unless the employer is aware of a particular problem or an employee’s vulnerability.
The test of reasonable foreseeability is a standard one, applying across the board – whatever the type of employment. Accordingly, there are no occupations that are to be regarded as intrinsically dangerous to mental health.
Various factors are likely to be relevant in determining whether a stress illness should have been reasonably foreseen by an employer. These include:
- The nature of the employee’s work
- Whether the workload is much greater than would be considered normal for the particular job.
- Whether the work is particularly demanding for the employee.
- The demands placed on the employee. Are these unreasonable when compared with the demands made of other employees in the same or comparable roles?
- Any signs that other employees doing the same or a similar job are suffering harmful levels of stress.
- Whether there is an abnormal level of sickness or absenteeism among similarly employed individuals.
- Whether the employee has given any signs of impending harm to health.
- Whether the employee has a particular problem or vulnerability.
- Any knowledge that the employee has previously suffered from a stress at work illness.
- Any recent and uncharacteristic frequent or prolonged absences from work.
- Any relevant complaints or warnings from the employee or others.
An employer is usually entitled to take what is said by an employee at face value, unless there is good reason not to. Employers are not under a duty to make searching enquiries of an employee or to investigate their medical background.
The employer will therefore only be expected to take steps when it is obvious to any reasonable observer that there is a problem that should be addressed. In the judge’s words: ‘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 do something about it.’
If you have suffered a stress at work injury which you think your employer should have foreseen, then you can call our FREE legal helpline for initial guidance and a case assessment.
Call us on 0808 139 1606 or email us at [email protected]