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Comparative labour case law

English case law and the challenge of mental health at work

Allison Fiorentino
p. 170-179
Cet article est une traduction de :
La jurisprudence anglaise à l’épreuve de la santé mentale au travail [fr]

Résumés

La détérioration de la santé mentale au travail est désormais un problème reconnu par la jurisprudence britannique. Pour autant, le juge s’est efforcé non pas de créer des normes spécifiques à cette situation, mais plutôt d’adapter les standards du droit commun des contrats. Il en résulte que le droit jurisprudentiel en la matière pose un certain nombre de conditions que le salarié doit remplir avant de pouvoir être indemnisé. Le juge britannique a eu à cœur d’adopter des décisions qui ménagent les deux parties au contrat de travail.

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Texte intégral

  • 1 R. Karasek, “Job demands, job decision latitude and mental strain: implications for job redesign”, (...)
  • 2 To mention just a few bibliographic references by British legal experts, see: R. Byrne, “Occupation (...)

1Since the publication of Professor Robert Karasek’s reference document in 1979,1 stress in the work environment has been the subject of a considerable amount of academic work, which considers it as an important issue for employers, workers and society as a whole.2

2In common law, an employer has certain obligations towards its employee which arise from the work relationship. One of them is health and safety at work. If an employee is injured while working, the employer may be held liable in two ways: either due to the behaviour of another employee, or personally, when the employer fails in a non-delegable duty of diligence. In addition to their obligations under ordinary law, the employer also has statutory obligations, for example under the Health and Safety at Work etc. Act 1974. However, this article will concentrate only on what case law has contributed to the subject, along with a critical view of the role of the courts, more particularly in the area of employees’ mental health.

  • 3 Wilsons & Clyde Co Ltd v English [1938] AC 57.
  • 4 W. A. Robson, “Common employment: reflections on the doctrine in the light of Wilsons And Clyde Coa (...)

3The nature of the employer’s duty was defined in the Wilsons & Clyde Coal Co Ltd v English3 case as having three aspects: the provision of competent colleagues, proper materials and a safe working environment. This 1937 House of Lords judgment was hailed by legal opinion at the time as a remarkable judicial innovation.4 The context of the period rendered this judge-made advance particularly noteworthy. Indeed, the complainant was a miner, a victim of a serious accident that he attributed to the company’s defective safety system. In the first instance, he won. After being ordered to pay compensation, the employer appealed and the case came before the House of Lords. The House of Lords unanimously confirmed the decision of the lower court to award the complainant damages. It was necessary, said Lord Thankerton, “to distinguish between duties relating to the actual working or operation of the mine and those which relate to the conditions of safety provided by the system under which such working or operation is carried on. The workman, under his contract of employment, is not to be held impliedly to have taken the risk of want of due care in the provision of a reasonably safe system of working, and the master cannot transfer the duty onto the shoulders of a subordinate.” This decision marked the emergence of an implied duty of latent safety in any contract of employment.

  • 5 G. Pitt, Employment Law, London, Sweet & Maxwell, 8th ed., 2011, p. 449.

4However, the edge was subsequently taken off the revolutionary impact of this judgment. Case law considered that this obligation consisted only of taking reasonable precautions to ensure the safety of the employee; it was not to render the working environment safe at all costs. Consequently, the employer’s financial considerations were taken into account when determining the extent of its duty.5

  • 6 C. Chapman, “Compensating employees for injury to feelings and psychological injury. Where do stres (...)
  • 7 “It is trite law that a single act of negligence may give rise to a claim either in tort or for bre (...)
  • 8 D. Leckie and J. McWilliams, “Stress at work. The implications for employers”, EMPLB, 2001, no. 44, (...)
  • 9 G. Pitt, Employment Law, op. cit., p. 443.
  • 10 This duty of care was established in case law by the Donaghue v Stevenson ruling [1932] AC 562.
  • 11 W. Njoya, “Employment, implicit contracts and the duty of care”, Law Quarterly Review, 2005, vol. 1 (...)

5Furthermore, case law quickly found itself facing a theoretical dilemma: the question of whether the employer’s duty to ensure safety (duty of care) was contractual or a matter of tort liability. Indeed, a certain confusion can be discerned regarding the basis for the employer’s liability. It would seem that the basis is both in contract and in tort.6 One of the Law Lords, Judge Simonds, expressly stated that whether the action was brought for contract or tort liability of was of little importance.7 However, each of these two bases has been the subject of separate case law.8 Legal opinion itself was not unanimous. Thus Professor Pitt9 held that a claim linked to a beach of this obligation can be treated as falling within the contractual domain or as tort liability. In the latter case, the employer’s failure could be analysed as a breach of the general duty of diligence incumbent upon any citizen.10 Professor Njoya11 preferred the contractual basis insofar as it forms the basis of the relationship between the parties.

6This theoretical debate has never been settled once and for all, and has not prevented employees injured in the course of their work from claiming damages. At the beginning of the 2000s, a new category of claims emerged: those seeking compensation for psychological damage due to an anxiety-inducing working environment. This being the case, and as the law is silent on the matter, the courts have had to tackle the question of the protection of an employee’s mental health. Could the duty “recognised” by the Law Lords in 1937 be interpreted as a duty to protect the employee against stress at work?

  • 12 [2002] EWCA Civ 76.
  • 13 [2004] UKHL 13. The Hatton case consisted of four appeals heard simultaneously; one of those appeal (...)

7The judge-made standards relating to the employer’s liability for psychological injury to the employee were fixed by the Court of Appeal in the Hatton v. Sutherland12 case which came before the House of Lords under the name of Barber v. Somerset CC.13 Although in the Barber case the House of Lords overturned the decision of the Court of Appeal, it approved the sixteen principles drawn up by a judge of that Court (Lady Justice Hale) for determining whether an employee has suffered psychological damage at work. This case law has one drawback: it constitutes too narrow a stricture, artificially limiting the compensation of an employee whose mental health has been damaged by work.

  • 14 K. Patten, «Compensation, culture, and the mythologising of justice», Civil Justice Quarterly, 2020 (...)

8As we will see, the practical consequences of these two decisions can be more prejudicial to the employee than the employer. Paradoxically, British employers complain of a certain compensation culture in which the courts award generous damages to employees as soon as they suffer from stress at work. In a masterly article published in 2020, Professor Keith Patten showed that this is mere myth.14

  • 15 Hatton v Sutherland [2002] EWCA Civ 76, § no. 9.

9Indeed, the courts have striven to find an acceptable balance between safeguarding employees’ well-being and not having employers bear the burden of some of the risks inherent in professional life. It is considered as fair that some of these risks be borne by employees, since in the words of one judge: “There is no such thing as a pressure-free job. Every job brings its own set of tasks, responsibilities and day-to day problems, and the pressures and demands these place on us are an unavoidable part of working life. We are, after all, paid to work and to work hard, and to accept the reasonable pressures which go with that.”15 

10First of all, we will examine British case law concerning the compensation of employees who are victims of acute work-related stress (I), before addressing, in a second part, the consequences of that case law (II).

I - The limited inventiveness of the British judge faced with occupational stress

11Although case law was established at the beginning of the 2000s by the Hatton and Barber rulings, these were not the first judgments to rule on the question of the protection of employees’ mental health and that of the liability of a negligent employer.

  • 16 Walker v Northumberland County Council [1995] 1 All ER 737.

12The starting point for the case law in this field was decision of the English High Court in the Walker v. Northumberland County Council case in 1994.16 The plaintiff was a social worker handling cases of child abuse. His workload increased considerably over the years without any increase in salary. In 1987, he suffered a nervous breakdown directly linked to his excessive workload. When he returned to work, he was promised support that never materialised. A few months later, he had another breakdown and was dismissed on the grounds that his absence interfered with the running of the department. The employee decided to bring an action against his former employer which had displayed a culpably cavalier attitude to his state of health. Mr Justice Colman considered that, although the breakdown had been caused by the plaintiff’s excessive workload, it was not reasonably foreseeable at that stage that his work would damage his mental health. However, when he returned to work, the employer should have foreseen that he was at risk of suffering another nervous breakdown if he was once again exposed to the same workload as before. Mr Justice Colman considered that, at the time when the plaintiff returned to work, it was “quite likely, if not inevitable” that he would have another breakdown, particularly as he did not receive any “additional help” that would have enabled him to avoid a recurrence of the illness. Mr Justice Colman described the problem at issue in this case as a “work-related psychiatric accident”.

13There were several lessons to be learnt from this decision. First of all, the decisive factor in this case was the foreseeability of the damage. The extent to which a reasonable employer should foresee a harmful reaction to the pressures exerted in the workplace depends on the interaction between a certain number of relevant factors. These include, of course, the nature and extent of the work done by the employee, as well as any clear signs shown by the employee himself. As far as the nature and extent of the work done by the employee is concerned, a court would be more likely to consider that a negative psychological reaction is foreseeable if other persons have already suffered injury to their health resulting from this work. Abnormal levels of illness and absenteeism, among other things, would constitute relevant proof.

14However, it is not enough for the plaintiff to show that it was reasonably foreseeable that the work environment would lead to stress. They must go further and prove that it was reasonably foreseeable that the work environment would damage their health. That will clearly depend on the circumstances. In the Walker case, the court considered that, although the plaintiff complained about his workload before his first nervous breakdown, this was not enough to render the development of a psychological illness foreseeable. It is clear that medical proof in the form of letters from a general practitioner would place the employer failing to act in a culpable position. Likewise, unusually prolonged absences from work would place the employer under an obligation to act. However, the employer must have good reasons to think that the underlying cause is occupational stress rather than other factors.

15After having established foreseeability, the plaintiff must demonstrate a breach of the duty of care. Once again, to assess whether a failing has occurred, the Court will take into consideration, as well as the foreseeability of the harm, the magnitude of the risk that this harm will occur, the severity of the harm, the cost and the possibility of preventing it, and the justifications of the risk.

16Finally, the plaintiff must establish a causal link, that is to say that the failure to fulfil a particular obligation caused the harm. This implies that any plaintiff bringing such an action before the courts must expect their medical history to be examined in detail, in order to determine to what extent poor mental health preceded their absence from work or was linked to stress factors unconnected to work. The defendant may usefully rely on the proof of the intrinsic fragility of the plaintiff who would probably have suffered psychological damage even if the employer had not been negligent.

17The Walker judgment therefore places strict conditions on the payment of damages for the employee’s psychological harm. Subsequent case law would further tighten those conditions.

  • 17 This court cannot be compared to a French Court of Appeal. It is the highest court among the Senior (...)
  • 18 [2002] EWCA Civ 76.
  • 19 These four decisions having been handed down on the same day and dealing with the same legal proble (...)

18In February 2002, the Court of Appeal17 gave its judgments in the cases Hatton v. Sutherland, Barber v. Somerset County Council, Jones v. Sandwell Metropolitan Borough Council and Bishop v. Baker Refractories.18 These four separate appeals, heard together,19 gave the Court the opportunity to re-examine the principles laid down in the Walker ruling, in an effort to clarify this difficult area of the law. In each of these cases, the appellants were employers found liable in the first instance due to the psychological injury suffered by their employees as a result of their work.

19After examining the legal principles to be adopted when examining claims for damages for occupational stress, but before giving its verdict on each case, the Court seized the opportunity to lay down a certain number of principles to be adopted when examining these cases.

20The 16 “practical propositions” that result from the analysis of existing case law by the Court are as follows:

  1. There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply.

  2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components: (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

  3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

  4. The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.

  5. Factors likely to be relevant in answering the threshold question include:
    a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
    b) Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

  6. The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.

  7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

  8. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it and the justifications for running the risk.

  9. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable. These include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

  10. An employer can only reasonably be expected to take steps which are likely to do some good: the Court is likely to need expert advice on this.

  11. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.

  12. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.

  13. In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

  14. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.

  15. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.

  16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.

21What clearly emerges from these decisions is that an employee has an obligation to inform their employer of their stress. Likewise, an employer may content themself with what their employee tells them, without seeking to find out whether it is true. However, the Court of Appeal has very firmly closed the door on the argument that certain forms of employment are so stressful that they could endanger the mental health of the persons concerned (an argument that was put forward by teachers, social workers and prison officers’ unions).

  • 20 Barber v Somerset CC [2004] UKHL 13.

22An appeal was brought against one of the four decisions in the House of Lords, which seized this opportunity to lay down the rules concerning the payment of damages for mental suffering at work.20 The House of Lords overturned the Court of Appeal’s decision by a majority of four to one.

23The decisive element that guided the court’s decision was the fact that Mr Barber (the employee) had been off work twice for stress - the first time before the summer holidays and the second after the summer holidays. It considered that the Court of Appeal had not taken sufficient account of the fact that the employer had an obligation, after the first absence, to investigate Mr Barber’s problems and to see what could be done to alleviate them. It was declared that Mr Barber’s condition should have been monitored and that if it did not improve with a small reduction in his workload, more drastic action should have been taken.

24This is an unusual decision in which the House of Lords reversed the decision of the Court below, on a factual basis rather than on the basis that the Court of Appeal was wrong in Law. Lord Walker noted that the Appellant “rightly directed hardly any criticism” towards the Court of Appeal’s composite Judgment. Indeed he described it as “a valuable contribution to the development of the law”. The Court’s 16 proposals provided, he said, “useful, practical guidance”, although adding that it should not be seen as “having anything like statutory force” and that each case would depend on its own facts.

II - The limited consequences of case law

  • 21 K. Williams, “The media and refining the notion of fault: section 1 of the compensation Act 2006”, (...)

25Case law has put a “straightjacket” on the employer’s civil liability in the event of work-related psychological harm. The reason perhaps lies in a great reluctance to hold employers liable in cases of stress at work. This reluctance was apparently based on the difficulties of identifying psychological damage and the fear of creating too wide a scope of liability. This last question has become a topical subject in the media, which spread the idea that the British live in a society that encourages more and more money-making court cases intended to ruin employers. In 2006 Professor Kevin Williams published a study in which he shows that this belief is firmly fixed in the collective sub-conscience.21 As a result, many employers believe that they run an increased risk of being unfairly taken to court, even though the possibility that they will be the target of litigation for stress at work is in reality low.

  • 22 G. Lockwood, C. Henderson and S. Stansfeld, “An assessment of employer liability for workplace stre (...)

26Indeed, some more recent work by three researchers, published in 2017, shows that as far as the outcomes of legal claims for stress at work are concerned, only 6% of claimants are successful.22 This analysis of cases gives some insights into why certain claims were won or lost, and allows the particular characteristics associated with success or failure to be identified. For example, in the cases of physical injury caused by bullying and acts of victimisation on the part of colleagues, those that were successful were often judged on the basis of the fact that the employer was responsible for the actions of the members of its staff and that it had therefore failed in its duties as established by case law. In these cases, it was found that the management was lax, that staff discipline was insufficient and the organisational management was chaotic. The companies were considered as creating or allowing a “culture of abuse” with such actions.

  • 23 Barlow c. Borough of Broxbourne [2003] EWHC 50 (QB).

27In the cases where the claimant did not succeed in their legal action relating to workplace bullying, two main reasons explain this failure. Firstly, the courts have considered that, although the managers’ behaviour was often unpleasant and undesirable, it was not serious enough to constitute, individually or cumulatively, an act of harassment or bullying warranting compensation.23 Secondly, even though the court considered that the defendant employer, through their agents, had intimidated or victimised the claimant, the action for damages nonetheless failed because the courts often considered that there was not enough evidence to prove that something had happened that alerted - or should have alerted - the defendant employer to the fact that their staff’s actions, during the period in question, would or could cause psychological damage to the claimant.

28The main characteristics of the cases of workplace stress based on an excessive workload were: the introduction of changes in work practices by employers; communication and consultation problems between management and staff; increased working hours increased volume of work; and the failure of management to respond to complaints concerning new working practices.

  • 24 Garrett v. Camden London Borough Council [2001], EWCA Civ 395.

29Many claimants suffer from mental illnesses and depressive states due to tensions and stress related to the their work situation, whether it is because of overwork, the existence of difficult and complex relations, worries about career prospects, fears or feelings of discrimination or harassment. However, the court rulings confirm that, unless there was a real risk of depression that the plaintiff’s employers should reasonably have foreseen, there cannot be any liability.24

30One important point to be taken into account by potential claimants and their legal representatives is that it is unlikely that a claim will succeed if the claimant, during the period in question, did not tell anyone that they were having difficulties with the amount of work expected of them and that it was causing them medical problems. Thus, while an employee may well want to minimise or conceal the real situation from their employer, insofar as nobody wants to be considered as being unable to cope, suffering in silence can have a negative impact in a future legal case. Not having informed other people about the health issues caused by the workload will be prejudicial to any claim.

  • 25 For example, see Rorrison c. West Lothian College [2000] S.C.L.R. 357; Fraser v. The State Hospital (...)

31It should be noted that a claimant may be entitled to claim damages for damage caused to their mental health by a single episode of acute stress at work. However, the majority of cases that have succeeded concern chronic stress resulting from an accumulation of work-related demands and conditions.25

  • 26 Keen v Tayside Contracts, [2003] ScotCS 55.
  • 27 Easton v B&Q plc [2015] EWHC 880 (QB).

32It should also be borne in mind that the foreseeability of the damage caused by stress remains a condition essential to the success of the legal action. To win their case, a claimant must be able to prove that an employer had enough knowledge for the damage to be reasonably foreseeable - not only that an employee would be upset or disturbed by certain circumstances or certain events, but that the claimant in particular would suffer psychiatric harm.26 It is not enough for a claimant to make general allegations on a growing awareness of the possibility of psychiatric damage. In the Easton v. B&Q27 case, the claimant was diagnosed as suffering from depression in May 2010. With the exception of two short, unfruitful attempts to return to work in September 2010 and January 2012, Mr Easton never worked for B&Q again. Mr Easton claimed that his illness was due to work-related stress, a consequence of the negligent behaviour of his employer B&Q. The latter acknowledged that Mr Easton had suffered from a psychiatric illness and that his medical situation was due, in large measure, to work-related stress. However, B&Q argued that Mr Easton’s illness was not foreseeable at any time. This argument was accepted. Mr Easton’s claim fell at the first obstacle, that of the foreseeability of his first breakdown. Mr Easton had spent his ten-year career as a manager in charge of large retail outlets. He had no previous history of psychiatric or psychological problems. There was nothing that could lead anyone to suspect that he could succumb to mental illness. Nothing about Mr Easton suggested to anyone that he could suffer from mental illness, and nothing in the profession of store manager in general suggested that there was any such risk.

  • 28 Dickens v. O2 [2008] EWCA Civ 1144 and Intel UK Ltd v. Daw [2007].

33Another lesson can be learned from the case law: one of the questions that employers must examine carefully is the setting up of a counselling service for their employees. Case law clearly indicates that the availability of counsellors is a relevant issue to be taken into consideration in cases of workplace stress. An employer that offers a confidential counselling service, able to direct the persons concerned to appropriate counselling or treatment services, is unlikely to be found in breach of its duty to provide a safe working environment. However, it is worth noting that in two cases,28 the Court of Appeal has ruled that providing access to counselling services does not always absolve the employer of its liability. When it is obvious that the health of an employee can be compromised by stress at work, the employer must tackle the cause of the stress rather than simply informing the employee of the existence of a counselling service.

Conclusion

34At a time when the so-called “compensation culture” dominates a large part of the public and political discourse, it is not surprising that employers are worried about court decisions that could extend the scope of their liability with respect to work-related stress. However, the analysis of the case law does not support in any plausible or reasonable way the idea that employers are faced with mass litigation caused by stress at work. The theoretical analysis of the rigorous judge-made conditions, confirmed by the 2017 study, reveals that the court decisions made in such cases have not placed an excessively heavy burden on employers. In actual fact, a claimant has substantial legal and evidential barriers to overcome.

35British judges have never claimed to innovatively write the law on health at work and more particularly employees’ mental health. They see themselves as faithful servants of the common law, sometimes obliged to apply its rules in new area, but always in line with well-established case law. It is futile to try and see in labour case law on the other side of the Channel any intention to reform the law to make it more protective of workers. Judges do not see themselves as political players and have no intention of interfering in the relationship that binds an employer to his employees.

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Notes

1 R. Karasek, “Job demands, job decision latitude and mental strain: implications for job redesign”, Administrative Science Quarterly, 1979, vol. 24, no. 3, p. 285.

2 To mention just a few bibliographic references by British legal experts, see: R. Byrne, “Occupational stress-related illness: nothing to worry your (employer’s) head about”, Medico-Legal Journal of Ireland, 2003, vol. 9, no. 1, p. 8; B. Barrett, “Employers’ Liability for Stress at the Work Place: Neither Tort nor Breach of Contract?”, Industrial Law Journal, 2004, vol. 33, no.4, p. 343; B. Barrett, “Employer’s liability after Hatton v Sutherland”, Industrial Law Journal, 2005, vol. 34, no. 2, p. 182; C. MCivor, “A stressful business”, Professional Negligence, 2005, vol. 21, no. 2, p. 123; B. Barrett, “Zero + zero + zero = zero”, Journal of Business Law, 2009, vol. 3, p. 229; N. Cooksley, “Personal injurer: employers liability - health - occupational stress - psychiatric harm”, Journal of Personal Injury Law, 2009, vol. 1, C15-19; D. Brodie, “Risk allocation and psychiatric harm: Yapp v Foreign and Commonwealth Office”, Industrial Law Journal, 2015, vol. 44, no. 2, p. 270; D. Brodie, “Natural justice and psychiatric harm”, Reparation Bulletin, 2015, no. 125, p. 5; G. Lockwood, C. Henderson and S. Stansfeld, “An assessment of employer liability for workplace stress”, International Journal of Law and Management, 2017, vol. 59, no. 2, p. 202.

3 Wilsons & Clyde Co Ltd v English [1938] AC 57.

4 W. A. Robson, “Common employment: reflections on the doctrine in the light of Wilsons And Clyde Coal Company, Ltd., V. English” Modern Law Review, 1937, p. 224. The author also slips in an ironic remark on the advanced age of the judges which in no way prevents them from making a modern decision. Indeed, at the same, on the other side of the Atlantic, President Roosevelt was faced with the conservative hostility of the judges of the Supreme Court, to the extent that he had threatened to reform this court so out of touch with the problems of ordinary Americans due to the length of service of its members.

5 G. Pitt, Employment Law, London, Sweet & Maxwell, 8th ed., 2011, p. 449.

6 C. Chapman, “Compensating employees for injury to feelings and psychological injury. Where do stress claims stand after the House of Lords judgments in Dunnachie and Eastwood”, JPIL, 2005, no. 1, spec. p. 13.

7 “It is trite law that a single act of negligence may give rise to a claim either in tort or for breach of a term express or implied in a contract”. See Viscount Simonds, Lister v. Romford Ice & Cold Storage Co. Ltd, 20 December 1956, [1957] AC 555, p. 573. Civil liability in tort in English law is the result of a large number of court decisions. The French Civil Code distinguishes between different regimes of tort liability. However, English law has progressively identified torts (wrongs that require payment of damages to compensate the person that suffered from the wrong) which can be classified into different categories: torts causing harm to people, damage to property and finally two other broader categories of torts: breach of a statutory duty and negligence. The last of these categories has a relatively wide scope since it allow the person suffering damage at the hand of a third party to obtain damages when the latter was bound by a duty of care. See R. Legeais, Grands systèmes de droit contemporains, Litec, 2004, p. 285.

8 D. Leckie and J. McWilliams, “Stress at work. The implications for employers”, EMPLB, 2001, no. 44, p. 6; V. Craig, “Civil liability for health and safety”, EMPLB, 2002, no. 48, p. 5; B. Barrett, “Employers’ liability for stress at the work place: neither tort nor breach of contract”, op. cit.

9 G. Pitt, Employment Law, op. cit., p. 443.

10 This duty of care was established in case law by the Donaghue v Stevenson ruling [1932] AC 562.

11 W. Njoya, “Employment, implicit contracts and the duty of care”, Law Quarterly Review, 2005, vol. 121, p. 33.

12 [2002] EWCA Civ 76.

13 [2004] UKHL 13. The Hatton case consisted of four appeals heard simultaneously; one of those appeals was the Barber case.

14 K. Patten, «Compensation, culture, and the mythologising of justice», Civil Justice Quarterly, 2020, vol. 39, no. 2, p. 163.

15 Hatton v Sutherland [2002] EWCA Civ 76, § no. 9.

16 Walker v Northumberland County Council [1995] 1 All ER 737.

17 This court cannot be compared to a French Court of Appeal. It is the highest court among the Senior Courts of England and Wales, and only hears appeals coming from other courts.

18 [2002] EWCA Civ 76.

19 These four decisions having been handed down on the same day and dealing with the same legal problem are referred to in legal writing only by the name of the first of the appeals: the Barber v. Somerset case.

20 Barber v Somerset CC [2004] UKHL 13.

21 K. Williams, “The media and refining the notion of fault: section 1 of the compensation Act 2006”, Journal of Personal Injury Law, 2006, vol. 1, p. 347.

22 G. Lockwood, C. Henderson and S. Stansfeld, “An assessment of employer liability for workplace stress”, International Journal of Law and Management, 2017, vol. 59, no. 2, p. 202, spec. p. 210.

23 Barlow c. Borough of Broxbourne [2003] EWHC 50 (QB).

24 Garrett v. Camden London Borough Council [2001], EWCA Civ 395.

25 For example, see Rorrison c. West Lothian College [2000] S.C.L.R. 357; Fraser v. The State Hospitals Board for Scotland [2001] S.L.T. 1051; Cross v. Highlands and Islands Enterprise [2001] S.L.T. 1060.

26 Keen v Tayside Contracts, [2003] ScotCS 55.

27 Easton v B&Q plc [2015] EWHC 880 (QB).

28 Dickens v. O2 [2008] EWCA Civ 1144 and Intel UK Ltd v. Daw [2007].

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Allison Fiorentino, « English case law and the challenge of mental health at work »Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2022, consulté le 21 juin 2025. URL : http://journals.openedition.org/rdctss/2705 ; DOI : https://doi.org/10.4000/rdctss.2705

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Allison Fiorentino

Senior lecturer at the University of Rouen, Member of the Centre Universitaire Rouennais d’Etudes Juridiques (CUREJ, EA 4703).

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Le texte seul est utilisable sous licence CC BY-NC-ND 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont « Tous droits réservés », sauf mention contraire.

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