Clyde & Co successfully defends another stress at work claim

Gabor Meggyes v Bentley Motors Limited

Executive Summary

In its recent Judgment the Liverpool County Court has reaffirmed the application of the Hatton principles in practice, in particular regarding when a Defendant is put on notice of a foreseeable injury and what steps it must reasonably take to mitigate against that risk.

The claim

The claim involved allegations of an excessive workload during the Claimant’s employment as an engineer. The Claimant alleged that following a restructure in July 2018 his level of responsibility increased and he had more work than his counterparts. He alleged that this resulted in an excessive workload which increased the level of stress he was subjected to.

The Claimant alleged that he had complained about his workload to management from July 2018 onwards, both verbally in 1-2-1 meetings and team meetings but also in correspondence. The Claimant relied on several emails which he contended were clear signs to his employer that he was struggling with his workload and that his health was at risk.

On 12 July 2018 he emailed his manager complaining that he could not feasibly manage 3 zones, that he was finishing much later than his equivalent colleagues and that he had 3 times as much work as everyone else.

On 23 July 2019 he emailed his manager regarding his increasing workload and stated “I’m worrying, I might miss something important, and it will cause problem. On the other side the level of stress and chaos is already has an impact on my health. (I don’t get headache at all, but nowadays I have quite often at the end of the day)”.

On 19 March 2020, in another email to his manager, the Claimant wrote “… I’m at that point where my personal life and my health is affected. I’m doing this job (and taking all the affects with it) for almost two years now and I’m getting to the point to pull together all of my medical reports and visit my GP and after that OHC and have a conversation about my situation and how the last two years had an impact on my private life and my health …”

The Claimant alleged that by June 2019 he had become depressed and had resorted to drinking heavily. He was feeling anxious and was drinking 1-2 beers after work. By early 2020 he was drinking several bottles of strong ales as a result of his depression and anxiety.

The Claimant relied on expert medical evidence from Dr Turkington, Consultant Psychiatrist who, relying on the account provided by the Claimant (and in ignorance of an absence of relevant entries in the medical records), concluded that the Claimant suffered from a worsening of a pre-existing panic disorder by 20%, a mixed anxiety and depressive disorder and a 12-month period of secondary alcohol abuse.

Investigations

We obtained evidence from 4 witnesses employed by the Defendant, 2 of whom were the Claimant’s line manager over the relevant period. All witnesses provided consistent evidence that the Claimant was not, in fact, subjected to an excessive workload, or a workload that was any greater than his colleagues. All witnesses accepted that the Claimant would complain about his workload, and his belief that he had more work than others, but at no stage (prior to March 2020) was there a concern about his health because of that workload.

As to the emails said to have put the Claimant’s line managers on notice of a risk of psychiatric injury, it was accepted by the Defendant that the email in March 2020 raised concerns over the Claimant’s health, part of which was being linked to his work. At this stage the Defendant took appropriate steps to point the Claimant to his GP, occupational health and arrange a stress risk assessment. Prior to this date, the Defendant did not accept that anything that had been written or said by the Claimant had given rise to a foreseeability of injury.

We also obtained our own evidence from a Consultant Psychiatrist, Dr O’Brien who could not find any corroborative evidence of any psychiatric injury caused by the matters complained of.

Judgment

In dismissing the Claimant’s claim, His Honour Judge Carter found that the Claimant had sought retrospectively to impute to his complaints about (his perceived) greater workload sufficient evidence that his mental health was suffering.

As to the July 2018 email, the Judge found that the Claimant’s case involved a clear conflation of complaints of an excessive workload and evidence that a perceived workload was adversely affecting an employee’s health.

“There is no doubt that the Claimant perceived that he had more work than others and that he was complaining about this … However, the contemporaneous evidence is that he was not working excessive hours, was not working overtime to cover the work, and was not, at least in the view of his managers and colleagues, in fact having more work.”

The Claimant was also not someone who was unwilling to attend his GP when he was suffering from symptoms of illness. He had several attendances at the GP during the relevant period and did not raise any issues about stress impacting his health. Workplace stress was not mentioned until 2020.

As to the July 2019 email, the Judge found that there was no doubt that this was a development from the previous situation – the Claimant was identifying to his employer that the level of work had caused him some physical symptoms. However, the Claimant was not taking time off work as a consequence of the headaches, was not seeking medical help for his symptoms, and was not complaining that he was unable to cope due to illness.

The Judge concluded that complaints about headaches at the end of the day were not sufficient evidence in isolation to make the risk foreseeable. Whilst the Claimant had said in his evidence that he told the Defendant (more than once) “The waves are crashing over my head and I have no control over this, it is overwhelming” this did not appear within any of the contemporaneous documentation.

As to the email in March 2020, the Defendant accepted this was sufficient indication by the Claimant that his workload (amongst other things) had made him unwell. The Judge therefore found that that injury was foreseeable at this stage and that the duty was engaged. As to that duty, the Judge found that the Claimant’s line manager responded promptly by email (noting the difficulties with meeting in person due to covid). He recommended seeing the GP if the Claimant thought that was necessary and then highlighted the steps he was taking to address the (majority) of the Claimant’s other concerns. It was agreed that the Claimant could work on site exceptionally, and a stress risk assessment was recommended. He also recommended the employee assistance program.

The Judge found that the steps taken by the Defendant were reasonable. The Defendant was entitled to address the complaints about workload by seeking to discuss them further.

Whilst the judge did not go on to provide judgment on the issue of causation, considering his finding on breach of duty, he did comment that he had found Dr O’Brien to have “approached the evidence with a proper degree of enquiry and to have weighed the Claimant’s evidence both in his examination and in the documentation against the contemporaneous records.” Dr Turkington “had not considered the evidence with a similar degree of independence and had been willing to adopt the Claimant’s evidence with a lack of critical consideration.”

What can we take from this judgment?

This case shows that more than 23 years later, Hatton remains the benchmark for stress at work claims, with the Judge in this case taking himself through the propositions set out by Lady Justice Hale. The Judge considered the wider factors to be considered on the issue of foreseeability and noted the Claimant’s absence from work (or lack of), the lack of overtime being worked and the lack of others being absent with stress.

The judgment also gives helpful guidance on the difference between reports or concerns over workload, and concerns over health, and the conflation of the two in this case. We often see Claimants point to records citing workload concerns as evidence in support of foreseeability of injury (as was done in this case in relation to the July 2018 email amongst others). This is insufficient.

Going a step beyond this, the judgment is a useful reminder that not every report made by an employee that has some relation to wellbeing is the “red flag” that Claimants purport it to be. In this case the Judge did not accept that a reference to headaches at the end of the working day, in the context of raising workload concerns, was sufficient to give rise to foreseeability of injury.

The Judge also made some interesting comments in respect of the steps that are necessary once foreseeability has arisen. The Judge concluded that the steps must be looked at consequentially:

“ie where a first step is indicated, a second step does not necessarily become reasonably required until the first step has been completed. So for instance, where a reasonable step is (as here) a SRA assessment, it not reasonable to expect an employer to take steps that would be consequential on the SRA until it has been completed."

This is a helpful reminder for there to be consideration given to what is known to be a reasonable step at the time concerns are raised, and a reasonable step that would only become known following a risk assessment or other discussions with the employee. It is often the case that little is known about the root cause of an employee’s concerns without further enquiry. In this respect, the Judge in this case also added “where an employee raises complaints about overwork, and the employer is on notice that it might cause harm, it is not unreasonable to undertake a review of the work required of the employee.”

Insurers had the confidence to run this claim despite the documented emails relied upon by the Claimant. The claim was defeated based on sensible and credible witness evidence from the Claimant’s line managers as to their interpretation of these emails and what they perceived the Claimant’s reported concerns to be.

Clyde & Co are specialists in dealing with stress at work claims, and we have been monitoring developments around this topic for some time. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Louise Quincey or any of our Occupational Disease & Legacy claims team.