Landmark Judgment on Stress Claims in Dickins v O2 plc
The Court of Appeal has made a judgment in Dickins v O2 plc
 EWCA Civ 1144 which may enable more stress claims to succeed
. Coincidentally, the ruling was made just before National Stress Awareness Day on 5th November 2008
, which will no doubt be good news for the organiser of the events, the International Stress Management Association (‘ISMA’).
Previous cases (such as Hatton v Sunderland
 ICR 613) attempted to limit the number of successful stress claims by setting hurdles for the claimant to get over before being able to succeed. However, the new Court of Appeal in Dickins
has arguably lowered
some of the hurdles
, with the result that more stress claims
that probably would have failed previously may now succeed
Specifically, the Court of Appeal has made changes to the tests that Claimants must overcome in relation to reasonable foreseeability, breach and causation. The Court of Appeal has also ended the previous rule relating to apportionment of the claimant's damages between tortious and non-tortious claims.
Facts of the case:
Dickins worked for O2. She had clerical role that included a quarterly audit that she found very stressful. As a result, 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 job, but as there were no vacancies immediately available she was told that this would be reviewed in 3 months' time.
A little later Dickins told her line manager that she did not know how long she could keep going before she would become ill and requested a 6 month sabbatical. Her employer did not grant this and advised her to contact the O2 confidential helpline.
Dickins repeated her concerns a month later in her Personal Development Review. Her employer referred her to occupational health; however, before the occupational health appointment took place she suffered a breakdown. The Court of Appeal held that O2 was liable for the stress related personal injury that Dickins suffered.
The previous case of Walker v Northumberland CC
 ICR 702 stated that an employer would not be liable for any personal injury that results from the 1st breakdown a claimant had suffered, as the harm suffered from a 1st breakdown would not normally be foreseen by an employer. It was therefore more difficult for a claimant who had not previously suffered any breakdowns to succeed in their stress claims.
, the court was much more flexible in implementing this strict test for the Claimant to overcome. The Claimant had previously complained about the stress of her job, been coming into work late on a regular basis and told her line manager that she did not know how long she could keep going before she would become ill. On the basis of these facts, the court held 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.
Breach of duty:
The previous judgment in Hatton
stated that in order to discharge their duty of care to their employees, employers would most probably only have to provide a confidential helpline. The new ruling in Dickins
stated that even though O2 referred Dickins to their helpline for confidential counselling, this was not adequate enough to discharge their duty.
The Court also went further to state that, because Dickins was complaining of severe stress, O2 should have used "managerial intervention" to send Dickins home pending an urgent investigation by occupational health, even though she had not been signed off sick by her GP. This will mean in most future cases employers
will be under a duty to use some ‘managerial intervention’
and do more than simply refer their employees to a helpline when they are notified of the employee suffering severe stress
, as with many stress cases, there were a number of factors contributing to the claimant's breakdown, many of which were not related to the employer.
The previous rule in Hatton
stated that where there were many potential causes of the claimant's breakdown, the burden of proof was on the claimant to establish that the defendant's breach of their duty of care was one of the potential causes.
By contrast, the court made an "obvious inference" in Dickins
that O2 failed to recognise the claimant's need for a rest, change her work or address her problems. This failure made a ‘material contribution’ to the claimant's breakdown and "tipped [her] over the edge".
This new rule means that the claimant will not have such a difficult burden to prove causation in the future
as the court will be able to decide using an "obvious inference" that the defendant's breach was causative of the claimant's injury.
The previous judgment in Hatton
stated that an employer would only be liable to pay for that degree of psychiatric injury caused by the occupational stress that the employee had suffered, and not for any other part of the injury the employee had suffered which was caused by other factors.
The Court of Appeal in Dickins
has now overturned this rule and said that the stress injury is to be considered indivisible from other injuries. Therefore, provided the employer’s breach of duty has made anything more than a ‘minimal contribution’ to the injury suffered by the employee, that employer will be liable for the whole injury.
The court also disagreed with Hale LJ’s previous remarks made in Hatton
and said that there should be no across the board percentage reduction to damages for the contribution to the illness made by any non-tortious claims the claimant makes.
These 2 rules may increase the amount of damages that claimants will be able to claim from their employers
in future and may therefore increase the number of stress claims that are issued by claimants against their employers.
What the Dickins?
The rule in Dickins
will arguably make it easier for employees to successfully
make a claim against their employer for psychiatric injuries caused by occupational stress
. Therefore both employers and employees should take note of the changes to the legal tests outlined in Dickins
In particular, employees suffering stress
and contemplating making a claim
against their employer would be advised to notify their employer of their problems as soon as possible
in order to show that any future injuries they suffer could have been anticipated
would be advised to review their policies
in relation to referring employees to confidential counselling, helplines or occupational health
when they are notified that an employee is suffering from stress
. If an employee is suffering from severe stress
, employers should also strongly consider whether further managerial intervention is necessary (for example, by referring the employee urgently to occupational health or making the employee stop working until further investigations are completed