Work-Related Stress and Psychological Injury
According to the 2020 UK Workplace Stress Survey, 79% of adults working in Britain “commonly experience work-related stress,” a 20% increase in comparison with 2018. In some sectors the percentages are even higher, with 92% of people who work in Local and National Government jobs reporting that they regularly suffer from stress. This suggests that, despite the introduction of flexible working hours and new policies around working from home (particularly in the wake of the Covid-19 pandemic), occupational stress continues to rise across the country.
Nevertheless, even with this general increase, there are relatively few successful claims for stress-related psychological injuries in the UK courts. This is due to the precise difference in the definition of work-related stress compared to psychological injury, as well as to the high burden of proof placed on the claimant to show that it was their work environment (rather than some other factor) that caused their psychological injury. In this post, we look at some of the major causes of stress in the workplace and outline the legal difference between stress and psychological injury. We then discuss the landmark case in UK law concerning workplace stress, assessing its significance for employers and employees alike.
The causes of work-related stress
Given the wide range of professions and workplace environments, the causes of work-related stress are many and varied. Across all industries, however, the main factors cited include office politics, poor communication, people’s perception of their own performance, and people’s perception of the performance of others.
At an individual level, psychological studies have shown that a lack of job security can contribute to increased work stress, with research even suggesting that this lack of security can be more mentally damaging than unemployment. Unrealistic job expectations, as well as excessive workloads, also contribute to stress (particularly if a person feels that their workload is greater than that of others in the same position or department). Similarly, harassment, discrimination, and bullying are all well-documented causes of stress for employees.
That said, despite the widespread prevalence of work-related stress, most people do not go on to develop a psychological injury that would be actionable in Court. This is due to the distinction that the law makes between general stress and psychological injury.
The definition of work-related psychological injury
While occupational stress can certainly have a damaging effect on a person’s mental health, this is often just considered to be part of the general wear and tear of employment. While working in a stressful job might make a person angry, bitter, unproductive, and more, it is unlikely that such a person would be able to make a stress-related claim unless they were diagnosed with a specific psychological injury.
Common conditions that are considered psychological injuries are post-traumatic stress disorder (PTSD), anxiety disorder, depression, and mood disorders (such as fears and phobias). In occupational stress claims, the most relevant of these are anxiety disorders and depression. The symptoms generally associated with these include:
High levels of anxiety
Severe sleep deprivation
Depression
Dizziness
Heart palpitations
Flashbacks
A diagnosis listing some or all of these symptoms, typically made by a psychiatrist at the instruction of a solicitor, would generally be required to demonstrate that a person’s stressful work situation had caused them to suffer a psychological injury.
The key legal case in stress-related psychological injury claims
Even if a person were to exhibit some of these symptoms of stress-related psychological injury, the burden of proof for their claim would still be relatively high. The main reason for this is that the amount of stress induced has to be shown to exceed what might generally be anticipated in their job. Moreover, the employee also has to prove that their employer should have been able to foresee the harmful effects of the job in advance, based on what they knew about the workplace environment and about the employee.
The details for establishing this were set out in a landmark case in UK law: Hatton v. Sutherland (2002). This case was actually a composite judgment based on four independent claims for psychological damage caused by occupational stress. Two of these claims were made by teachers in secondary schools, a third came from an administrative assistant in a training centre, and a fourth came from a raw materials worker in a factory. When the various cases were heard on appeal, the Court offered a combined judgment that outlined several principles to help guide legal decisions about occupational stress claims. These principles are still the baseline by which all stress-related psychological injury claims are judged. In what follows, we summarise several of the most important ones, with the quotations from the judgment provided in italics and our commentary below.
Foreseeability
Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee… 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.
This is perhaps the most important of all the principles set out in Hatton. It points to the fact that, while issues of mental health are widespread in society, it is difficult to know the extent to which a specific person might be predisposed towards certain health disorders. Nevertheless, a company can be expected to make a judgment, based on what they know about the person in question, about whether or not they might be vulnerable to psychological harm through stress. That said, if the employee gives no indication that they might be vulnerable, then the employer is justified in assuming that the employee is able to withstand the pressures of the job (at least to the same extent as others in the same position).
Universality
The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
While some professions might appear to be inherently more stressful than others (such as healthcare, police work, social care, and more), the law does not recognize any one profession as intrinsically more dangerous to mental health. Moreover, it is reasonable to assume that a person working in supposedly more stressful professions would be aware in advance of the excess stresses they entail. As mentioned in relation to the principle of foreseeability, employers are not liable if a person suffers stress due to “the normal pressures of the job,” whatever those pressures might be.
The Threshold Question
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).
As noted above, the definition of stress is very broad, but the definition of psychological injury is much narrower. That is why this principle in Hatton splits up injury claims into two components. The first is the question of whether the claimant has a recognizable and diagnosable psychological injury (which is what a psychiatrist would assess in a stress-related claim). The second component is whether or not that injury was most likely caused by stress at work (rather than, say, by changes in the claimant’s personal life). While a psychiatric assessment might be able to provide some insight into the second component, it would be unlikely to prove it either way. In making their final judgment on a particular case, the Court would have to weigh up all of the other factors involved in the claim and decide whether it was workplace stress that contributed to the psychological injury. There can, of course, be multiple combined causes of stress and psychological injury, in which case the ruling in Hatton dictates that “the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing.”
Relevant Factors
Factors likely to be relevant in answering the threshold question include:
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?
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?
These are the questions that guide the Court’s judgment in assessing stress-related psychological injury claims. As the questions demonstrate, the employee has to show that there were clear indications of the impending psychological harm of which the employer should have been aware. While this does not necessarily mean that the employee has to have informed their employer of the fact that they were suffering, it does mean that an employer is unlikely to be liable if the employee simply suffered in silence.
Prevention and mitigation of liability
An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be in breach of duty.
This shows that an employer is able to take relatively straightforward preventative steps to mitigate their liability for stress-related psychological injury claims; it is only if they are discovered to have been negligent (after having identified a problem) that they are likely to be liable for damages. As Hatton further stipulates: “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.” In other words, the dual assessment involves judging not only whether the employer was given sufficient indication as to the mental suffering of the employee but also whether there were any steps that the employer could or should have taken after having identified that suffering.
Nevertheless, if it is established that the employer could foresee the possibility of harm and that the employer also failed to take steps to mitigate that harm, then it becomes much more difficult for the employer to prove their innocence. If an employer identifies a risk and does nothing about it, then they are very likely to be liable for damages.
Summary
Recent studies suggest that workplace stress is rising throughout the UK, but successful psychological injury claims for occupational stress remain rare. Given the heavy burden of proof that is placed on the claimant in these cases, it seems unlikely that this will change into the future, even if workplace stress continues to rise. This is primarily because the principles enshrined in Hatton offer a robust test of whether a stress-related psychological injury was foreseeable, identifiable, and preventable. While these principles may make it difficult for an employee to make a successful claim for harm caused by occupational stress, their clarity and precision certainly makes them worthy of the recognition they once received in the House of Lords as “a valuable contribution to the development of the law.”
This post is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.