Dickins v O2 Plc [2008] - EWCA Civ 1144
The English Court of Appeal decision in Dickins
provides not only further guidance in cases of occupational stress,
but also examines the appropriateness of apportioning damages in
cases where a claimant has suffered psychiatric illness resulting
from a number of factors, not all of which can be attributed to an
employer.
Ms Dickins started employment as a secretary, but by August 2000
had been promoted to Finance and Regulatory Manager. She found this
post demanding and transferred to a new post in August 2001. Early
in 2001 she began to suffer from irritable bowel syndrome and was
already undergoing counselling arranged by her GP as the condition
can be stress related. In March 2002 she asked for help and a less
stressful job but was advised to ask again in 3 months. By April
2002 she requested a sabbatical and advised O2 that she was
"reaching the end of her tether." This request was repeated in May
2002 and at that stage she was referred to O2's Occupational Health
Department. The referral was not actioned and by June 2002 she was
signed off with anxiety/depression. She never returned to work.
The earlier case of Hatton v Sunderland had set out a
number of propositions, later approved by the House of Lords in
Barber v Somerset County Council, to assist a court in
determining whether a breach of an employers' duty of care had
taken place.
A primary consideration in Hatton was that impending
psychiatric harm to an employee had to be reasonably foreseeable to
the employer so that action could be taken: the indications that
mere stress was progressing towards an injury to health had to be
'plain enough' before an employer had to take any action.
In this case the court found that O2 did not have to look
particularly hard to find fairly clear indications that Ms Dickins
was being 'tipped over the edge from suffering from stress into a
complete breakdown'. The whole history of her employment indicated
that, by April 2002, O2 should have referred Ms Dickins to
occupational health as a matter of urgency and should have allowed
the sabbatical.
Hatton indicated that an employer who offered a
confidential advice service was unlikely to be found in breach of
duty. Daw v Intel Corporation 2007 had already doubted
this and held that reference to internal counselling was not a
panacea discharging the employer from their duty of care,
particularly where an employee's problems could only be dealt with
by management intervention. Given the obviously severe symptoms
being described by Ms Dickins, O2's 'mere suggestion' that she seek
counselling was not regarded as an adequate response. Therefore,
employers should not view the provision of a counselling service as
a get out of jail free card.
Finally, obiter remarks were made regarding the apportionment of
damages where psychiatric harm resulted from more than one
cause.
Ms Dickins' damages had been reduced by 50% to take into account
other non-work-related causes of stress. This point was not
appealed, however, it was considered that where an employer's
breach of duty has made a 'material contribution' to the injury it
may be inappropriate to apportion damages where it is not possible
to provide an accurate percentage to each contributing factor. A
material contribution by an employer may be enough to allow a
successful claimant to recover in full. This is another element of
Hatton likely to be revisited as case law evolves.
Contributed by Debbie Connor