Hatton v Sutherland (Bishop v Baker Refractories Ltd, Jones v Sandwell Metropolitan Borough Council)

Ordinary principles of employers’ liability govern psychiatric illness caused by the work an employee is required to do. The threshold is whether injury to health attributable to workplace stress was reasonably foreseeable in that particular employee. No occupation is intrinsically dangerous to mental health. Employers may generally assume that employees can withstand normal job pressures and take their explanations at face value. Indications of impending harm must be sufficiently plain to require action.

Liability requires an identified failure to take reasonable, practicable steps likely to help, and proof that this failure caused or materially contributed to the illness. Allowing a willing employee to continue working is not a breach where dismissal or demotion is the only reasonable and effective response. Divisible harm should be apportioned, and damages should reflect pre-existing vulnerability and relevant contingencies.

Four employers appealed against county court judgments awarding damages for psychiatric illness attributed to workplace stress. Mrs Hatton taught French at a school whose governors were represented by Mr Sutherland. Mr Barber taught mathematics at a school maintained by Somerset County Council. Mrs Jones worked as an administrative assistant at Sandwell Metropolitan Borough Council’s training centre. Mr Bishop worked as a raw materials operative for Baker Refractories Ltd. Each employee had ceased working following psychiatric illness.

Judge Trigger in Liverpool County Court awarded Mrs Hatton damages. Judge Roach in Exeter County Court awarded Mr Barber damages. Judge Nicholl in Birmingham County Court awarded Mrs Jones damages for illness associated with excessive work and unreasonable managerial treatment. Judge Kent-Jones in Leeds County Court awarded Mr Bishop general damages and adjourned the remaining damages issues. The employers challenged liability; damages issues also arose in the Hatton and Barber appeals.

The appeals were heard together to determine how ordinary negligence principles applied to psychiatric illness caused by workplace stress, particularly foreseeability, reasonable preventive measures, causation and the assessment of damages.

The employers’ appeals in Hatton, Barber and Bishop were allowed. The appeal in Jones was dismissed. Lady Justice Hale delivered the joint judgment of the court, to which Lord Justice Brooke and Lord Justice Kay also contributed.

1. Ordinary principles of employers’ liability applied to illness caused by the stress of performing required work. The special controls governing psychiatric injury suffered through harm to others did not apply. The distinction explained in Frost v Chief Constable of South Yorkshire Police supported that conclusion ([19]–[22]).

2. The threshold was whether injury to health attributable to workplace stress was reasonably foreseeable in the particular employee. The inquiry concerned the interaction between the employee and the demands of the job. No occupation was intrinsically dangerous to mental health. Relevant matters included excessive or demanding work, illness among comparable employees, individual vulnerability, sickness absence and warnings linking health problems to work. The indications had to be plain enough for a reasonable employer to recognise the need for action ([23]–[31]).

3. An employer could generally assume that an employee could withstand normal pressures and accept the employee’s explanations without intrusive inquiries. Expiry of a medical certificate implied neither recovery nor protection against recurrence. However, returning without further explanation usually conveyed the employee’s belief that he or she could resume the previous work ([29]–[30]).

4. Breach required identification of steps the employer both could and should have taken. Reasonableness depended on the risk, gravity of possible injury, cost, practicability, resources, competing demands and other employees’ interests. Preventive steps had to be likely to help. A confidential advice and referral service would ordinarily weigh against breach, subject to clear risks created by wholly unreasonable demands. Where dismissal or demotion was the only reasonable and effective response, allowing a willing employee to continue was not a breach ([32]–[34]).

5. The claimant had to prove that the identified breach caused or materially contributed to the illness. Proof that workplace stress caused illness was insufficient by itself. Bonnington Castings v Wardlaw supported the material-contribution principle ([35]).

6. Mrs Hatton’s absences and ordinary workload did not sufficiently indicate impending work-related illness. Mr Barber’s evidence did not establish a point at which the school should have taken the preventive steps identified below. Mr Bishop’s complaints and medical certificates did not sufficiently warn of psychiatric injury; moreover, his former work was unavailable and dismissal was the only effective solution ([48]–[59]; [72]–[73]).

7. Mrs Jones’s excessive workload, unreasonable managerial treatment and written health warnings supported foreseeability. Senior management had arranged assistance which line management failed to provide. The judge could find that this failure caused or materially contributed to her breakdown. Waters v Commissioner of Police of the Metropolis was applied ([65]–[67]; [206]–[210]).

8. By way of guidance unnecessary to the liability outcomes, divisible illness attributable to several causes should be apportioned if the defendant raised that issue. Truly indivisible injury remained subject to liability for the whole upon material contribution. Damages should reflect exacerbation, acceleration and the chance of illness occurring independently. Future contingencies required assessment as chances, rather than all-or-nothing findings on the balance of probabilities ([36]–[42]; [171]–[174]).

• Court of Appeal: In [2002] EWCA Civ 76 , the joint court allowed the employers’ appeals in Hatton, Barber and Bishop and dismissed the employer’s appeal in Jones. Permission to appeal to the House of Lords was refused. The application for a retrial in Hatton was refused.
• Liverpool County Court: Judge Trigger awarded Mrs Hatton damages and interest on 7 August 2000. The employer appealed on liability and damages. The liability judgment was displaced.
• Exeter County Court: Judge Roach awarded Mr Barber damages and interest on 8 March 2001. Somerset County Council appealed on liability and damages. The liability judgment was displaced.
• Birmingham County Court: Judge Nicholl awarded Mrs Jones damages and interest on 31 October 2000. Sandwell Metropolitan Borough Council challenged the factual findings and liability. Its appeal was dismissed; causation and quantum were not independently challenged.
• Leeds County Court: Judge Kent-Jones awarded Mr Bishop £7,000 general damages on 26 January 2001 and adjourned the remaining damages issues. Baker Refractories Ltd successfully appealed against liability.