DOES DICKINS OPEN THE FLOOD GATES?
In the Winter 2007 issue 13 of our Newsletter I commented on a UK decision in Daw V Intel Corporation which involved an employee who had drawn her employer’s attention to her stress in a series of memoranda. Ultimately the employee had attempted suicide. In that case the employer had provided for counselling services and because it had done so believed it had no further responsibility to the employee. However, the Court decided that the provision of counselling services did not alleviate the employer’s liability for the damage caused to the employee’s health.
In the UK case of Dickins V O2 the employee had made her employer aware over a period of many months that she was under “palpable stress” and was “about to crack up”. The employee had a clerical role that included a quarterly audit which she found very stressful. As a consequence she began coming into work late on a regular basis. She complained about the stress of her job and asked if she could be moved to a less stressful position, but as there were no vacancies immediately available she was told that this would be reviewed in 3 months time. Some time later the employee told her line manager that she did not know how long she could keep going because she would become ill and requested a 6 month sabbatical. Her employer however did not accede to her request and advised her to contact the O2 confidential helpline. A month later the employee repeated her concerns in her Personal Development Review and at that stage the employer referred her for assessment to Occupational Health. However, before the Occupational Health appointment took place the employee suffered a breakdown. The Court of Appeal decided that the employer was liable for the stress related personal injury suffered by the employee.
In Ireland for an employee to succeed in a stress at work claim for damages for personal injury there are a number of hurdles to be overcome. Firstly, the injury must be of such a nature as to give rise to a psychological/psychiatric disorder or illness. Ordinary stress will not suffice as most people suffer stress to some degree in their workplace. Secondly, the injury must have been caused by the workplace. If an employee has a genetic predisposition to a psychological or psychiatric condition, which is unrelated to the workplace, the employer may not be held fully responsible for the damage to the employee’s health. Thirdly, the injury sustained by the employee must be reasonably foreseeable by the employer for the employer to be held fully liable. As a consequence of the Supreme Court decision in Berber V Dunnes Stores it is a defence if the employer can demonstrate that it acted reasonably in all the circumstances of the case.
Whilst the decision of the Court of Appeal in the Dickins case is a UK decision it may have persuasive value in Ireland and consequently it is arguable that the hurdles to be overcome by an employee in these types of cases have been somewhat lowered with the result that more stress at work claims may now succeed.
In Dickins the Court of Appeal decided that the claimant’s psychiatric injury was held to be reasonably foreseeable from the point at which she requested a sabbatical as her breakdown had not “come out of the blue” and there was sufficient warning of the risk of harm to her health. Although O2 referred Ms. Dickins to their helpline for confidential counselling this was not regarded by the Court of Appeal as adequate to discharge their duty of care. Indeed the Court went further and said that because Ms. Dickins was complaining of severe stress, O2 should have used “managerial intervention” to send Ms. Dickins home pending an urgent investigation by Occupational Health, even though she had not been signed off sick by her own GP. Accordingly, as a consequence of this decision employers could well find themselves under a duty to use some “managerial intervention” and to do more than simply refer their employees to a helpline when they are notified of an employee’s suffering severe stress. Proactive intervention may now be required.
This decision in Dickins may have significant impact as previously the burden of proof was on the employee to establish that the employer’s breach of their duty of care was one of the potential causes for the damage to their health. But in Dickins the Court accepted an “obvious inference” that O2 failed to recognise Ms. Dickins need for a rest, change her work or address her problems. This failure made a “material contribution” to Ms. Dickins breakdown and effectively tipped her over the edge. The Court’s drawing of an “obvious inference” means that employees will not have such a difficult hurdle to overcome in terms of proving causation in the future with the result that more claims for psychiatric injuries caused by occupational stress will be brought against employers and may well be successful.
For employees suffering stress and contemplating making a claim against their employer they would be well advised to notify their employer of their problems as soon as they arise in order to demonstrate that any future injuries they suffer could have been anticipated.
As for employers they would be well advised to review their policies (including processes and procedures) in relation to referring employees to confidential counselling, helplines or for occupational health assessments when they are notified that an employee is suffering from stress. If an employee indicates that he/she is suffering from severe stress, employers would be well advised to consider further managerial intervention by proactively referring the employee urgently to an Occupational Health Specialist, including following up on that referral or making the employee stop working altogether until further investigations have been completed.
Could the Dickins outcome arise in Ireland? The consequences for employers in not reviewing their policies and taking prudent and effective steps in relation to their employee’s health is to run the gauntlet of substantial damages being paid to a successful claimant. In Dickins the employee received over Stg£100,000.00 — an expensive lesson indeed and one to be avoided by proactive intervention.
Carol Fawsitt
cfawsitt@hayes-solicitors.ie