Dickins v O2 Plc

An employer’s duty to protect an employee from psychiatric injury arises when the indications of impending harm are sufficiently clear. The employer may assess an express warning against the employee’s known history. Once a conscientious employee describes severe work-related symptoms and says that she cannot continue, responsibility does not rest solely with her.

A counselling service is not a universal answer. Management intervention may be required, including occupational health referral, temporary removal from work and appropriate adjustments. Causation requires proof that the breach made a material contribution to the illness. Loss of a chance of avoiding illness is not the correct test.

O2 Plc appealed from an order of HH Judge Corrie in Slough County Court awarding its former employee £109,754.22, inclusive of interest, for psychiatric injury caused by excessive workplace stress. The judge found that, after the employee gave a clear warning about her condition on or about 23 April 2002, the employer should have referred her immediately to occupational health and sent her home. He reduced the damages by 50% to reflect non-tortious contributing factors.

The employer challenged the findings on reasonable foreseeability, breach of duty and causation. It argued that the employee had disclosed stress rather than impending illness, that its counselling service and the employee’s ability to consult her doctor discharged or limited its responsibility, and that the judge had applied a loss-of-a-chance test instead of asking whether the breach materially contributed to the illness.

1. Appeal dismissed. Smith LJ held that the employee’s statements on or about 23 April 2002, considered with the history known to the employer, provided a clear indication of impending psychiatric illness. She described severe exhaustion, difficulty getting out of bed and uncertainty about how long she could continue. The trial judge was entitled to find that her managers knew or ought to have known that substantive action was required.

2. The earlier incidents did not themselves establish foreseeability. They formed relevant background against which the April warning had to be understood. Their significance was enhanced by the employee’s established record as conscientious, hardworking and reliable.

3. The availability of a counselling service did not discharge the duty of care. Such a service is not a panacea, particularly where the employee has already disclosed severe symptoms directly to management and is receiving counselling elsewhere. The problem required management intervention. The employer should have made an immediate occupational health referral and sent the employee home on full pay pending investigation. Appropriate longer-term adjustments to her work would also have been necessary.

4. The trial judge had used the wrong language when he referred to the employee losing a chance of recovery or of avoiding serious deterioration. The correct question was whether the identified breach made a material contribution to the psychiatric illness. On the findings and psychiatric evidence, that conclusion was inevitable. The failure to provide rest or address the work pressures plainly contributed to the employee progressing from severe stress to breakdown, although personal vulnerability and other non-tortious factors were also present.

5. The parties had accepted below that the damages should be reduced across the board by 50%, so the Court did not alter the award. Smith LJ nevertheless doubted, obiter, whether across-the-board apportionment is appropriate where a tort makes an unquantifiable but material contribution to an indivisible psychiatric injury. Future losses may instead be discounted for the possibility of a later non-tortious breakdown. Sedley LJ shared that concern and considered that first-instance courts should presently take their direction from Bailey v Ministry of Defence [2008] EWCA Civ 883. Wall LJ agreed with the dismissal and Smith LJ’s reasons but offered no view on the apportionment discussion.

• Court of Appeal (Civil Division): Dismissed O2 Plc’s appeal and left undisturbed the County Court award.
• Slough County Court: HH Judge Corrie gave judgment for the employee for £109,754.22 inclusive of interest, after reducing damages by 50% for non-tortious contributing factors.