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The Hatton Guidance

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The law governing claims for Psychiatric Injury arising from workplace stress is determined by previous cases which have been decided at a Trial.

The leading case in this area of law is called Hatton v Sutherland. In this case, the Judge set down a checklist of 16 factors for other Judges to consider when faced with cases for injury caused by stress at work.

They are:

1) The ordinary principles of employers’ liability apply. There are no particular control mechanisms for psychiatric, or physical, illness arising from the stress of doing the work the employee is required to do.

2) The threshold question is whether this kind of harm to this particular employee (not a person of “ordinary fortitude”) as a result of their work was reasonably foreseeable. This has two components:

  • An injury to health (as distinct from occupational stress); which
  • Is attributable to stress at work (as opposed to other factors).

3) Foreseeability depends on what the employer knows, or ought to know, about the individual employee. The nature of a psychiatric disorder, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, means that it is bound to be harder to foresee than a physical injury.

Unless it knows of some particular problem or vulnerability, an employer is usually entitled to assume that the employee is up to the normal pressures of the job.

The Hatton Guidance

 

4) The test is the same whatever the employment because it is not the job but the interaction between the individual and the job which causes the harm, so there are no occupations which are so intrinsically stressful that resulting physical or psychological harm is always foreseeable.

5) A number of factors are likely to be relevant in answering the threshold question. These include:

  • The nature and extent of the work being done by the employee. It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable. 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 made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Are there signs that others doing this job are suffering harmful levels of stress? This might be shown by an abnormal level of sickness and absence amongst others at the same job or in the same department.
  • Signs from the employee of impending harm to health. If the employee or their doctor makes it clear that unless something is done to help there is a clear risk of a breakdown in mental or physical health, the employer will have to consider what can be done. However, harm to health may sometimes be foreseeable without an express warning. Factors to take into account include uncharacteristic frequent or prolonged absences and the nature of the employee’s work. In addition, complaints made by the employee or warnings given by the employee or others may, regardless of the stated reason for the absence, give the employer good reason to think that the underlying cause is occupational stress rather than other factors.

6) The employer is generally entitled to take what an employee tells it at face value, unless it has good reasons to think otherwise. An employee who returns to work after a period of sickness will, unless they disclose or explain to their employer to the contrary, be taken to imply that they believe themselves fit to return to the work they were doing before.

The employer only needs to enquire further if there is something specific about the job or the employee or the combination of the two. That does not necessarily require searching or intrusive enquiries. The employer may suggest that the employee consults his own doctor or an occupational health service.

However, unless it has “a very good reason”, the employer should not ask for permission to obtain further information from the employee’s medical advisers because this would risk an unacceptable invasion of the employee’s privacy.

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7) To trigger a duty to take steps, the indications that an employee is going over the edge from pressure to stress and from stress to injury to health must be plain enough for any reasonable employer to realise that something should be done about it.

8) The employer’s duty is to take steps which are reasonable in the circumstances. This will depend on:

  • The foreseeability of harm
  • The magnitude of the risk of that harm occurring
  • The gravity of the harm which may take place
  • The cost and practicability of preventing it, and:
  • The justifications for running the risk

9) Potential remedial steps include transferring the employee, redistributing work or providing extra help, arranging treatment or counselling or providing buddying or mentoring.

It will be necessary to consider how reasonable any step is, taking account of the size and scope of the employer’s operation, its resources and other demands placed upon it (including the interests of its other employees).

10) The employer can only reasonably be expected to take steps which are likely to do some good. In many cases it will be hard to know what would have done some, let alone enough, good. Accordingly expert evidence is likely to be required.

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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, except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear. This part of the guidelines has been considered further by the courts.

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

In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him. If there is no alternative solution, it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health, or whether to leave that employment and look for work elsewhere before he becomes unemployable.

If there is no alternative solution, it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health, or whether to leave that employment and look for work elsewhere before he becomes unemployable.

13) It is necessary to identify the steps which the employer both could and should have taken before finding it to be in breach of its duty of care.

14) Having shown a breach of duty, it is still necessary to show that the particular breach of duty found caused the harm. It is not enough to show that occupational stress caused the harm. Where there are several different possible causes, as will often be the case with stress-related illness of any kind, the claimant may have difficulty proving that the employer’s breach was one of them.

However, the employee does not have to show that the breach of duty was the whole cause of his ill-health; it is enough to show that it made a material contribution.

15) Many stress-related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible.

It is different if the harm is truly indivisible: a tortfeasor who has made a material contribution is liable for the whole, although he may be able to seek contribution from other joint or concurrent tortfeasors who have also contributed to the injury.

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.

The Hatton Guidance

 

What do I do if I think I’ve suffered Psychiatric Injury and my Employer has not followed The Hatton Guidance?

Before deciding on whether making a claim is the best option for you, it’s important to seek some initial legal advice.

Here at Oakwood Solicitors Ltd, we offer a free assessment and would be happy to discuss with you whether we thought there were merits to a possible action.

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WHAT TO DO NEXT

If you believe that workplace stress is the root of your current ill-health and your workplace isn’t listening, get in touch today for a free initial consultation. Choose one of the methods on the right-hand side of this page, or call us on 0113 200 9787 to find out how we can help you.

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0113 200 9779

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