Foreseeability – what exactly are you expected to foresee in respect of stress?

StressIf one of your employees tells you they are “fine”, then goes on to have a nervous breakdown, could you still be guilty of negligence? The answer to this could turn on the principle of “foreseeability”.

Case law relating to stress in the workplace is constantly evolving. However, foreseeability has been established as a key principle in cases relating to stress.

It may be useful to review where “foreseability” has come from and what guidance is available as to what it means to employers.

The concept “reasonably foreseeable” was used by Coleman LJ in respect of the landmark stress case Walker vs Northumberland in 1995. It was mentioned again by Hale LJ in what is now known as the Hatton Guidelines in 2002.

StressThese guidelines also have some detail on what foreseeability might mean:-

  • What an employer knows or ought reasonably to know about the individual employee
  • An employer is entitled to assume that an individual can cope with the normal pressure of a job unless they know something specific about a problem or vulnerability of the employee
  • An employer is entitled to take what the employee says at face value, unless they have good reason to think to the contrary
  • The trigger to take steps are indications that there is impending harm to an individual, which should be plain enough for an employer to know that they need to do something about it

Further clarification on foreseeability has been outlined in the following two cases:-

Barber vs Somerset County Council 2004, when the appeal was heard at The House of Lords, an additional principle was set that employers had to be pro-active and take the initiative, not just wait until there is a problem.

Lord Walker’s comments on this case also suggest that as awareness of stress in the workplace grows, for the example the Health and Safety Executive Guidelines, the more a reasonable employer would be expected to do.

StressThe case of Hone vs Six Contintents Retail Ltd 2005, illustrates this point. An employee was working 90 hour weeks, and although the employee did not raise any issues with his employer, it was held that in these circumstances it was reasonably foreseeable that the employee was at risk of harm. The employee had refused to the sign the opt-out under the Working Time Regulations. The case also raises the issue of whether the employer should have carried out a risk assessment.

Foreseeability is a key principle in stress at work case law. Employers have a duty to act on signs of stress in their employees, and particularly when an employee specifically states that they are under pressure, stressed-out or can’t cope. There is also a growing expectation that employers will be proactive in carrying out their duty to ensure the health and safety of their employees.

Please note that I am not a lawyer. If you have a legal issue relating to stress in the workplace, please seek expert advice.

This post was written by Charlie Damonsing of CLAssociates. CLAssociates specialises in helping businesses manage stress in the workplace, providing consultancy, training and 1-2-1 support. For further details please contact Charlie on 0771 559 6487.

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