In the recent High Court decision of Easton v B & Q Plc the trial Judge had to determine whether or not B & Q had exposed Mr Easton to such stress in the workplace as to cause a foreseeable risk of psychiatric injury. On the facts of the case, B & Q was held not liable.
In 2004 Mr Easton was recruited by B & Q as a Unit Manager to manage one of its stores and subsequently progressed well within the business. At the beginning of 2007 Mr Easton was seconded to the head office of B & Q to lead a small team which implemented a structural change in the range of products available in stores. In July 2008 he was appointed as the manager of a B & Q store which was about to undergo a substantial refurbishment and he was considered a high performing manager capable of overseeing the project to a successful conclusion. The refurbishment was carried out successfully and the store performed well thereafter.
In May 2010 Mr Easton was diagnosed with depression and save for two very brief unsuccessful attempts to return to work in September 2010 and January 2012, he never worked again for B & Q. He lodged a claim for psychiatric illness caused by occupational stress against B & Q.
Breakdown in May 2010
In respect of Mr Easton’s first breakdown in May 2010, the question was whether the psychiatric injury was reasonably foreseeable by the employer. Mr Easton’s claim was found to have failed at the first hurdle ‘foreseeability’ in respect of his first breakdown as he had spent his lengthy managerial career in charge of large retail outlets, had no history of psychiatric problems and there was nothing about store managers at B & Q in general giving rise to foresight of such a risk.
Relapse in October 2010
As to the relapse suffered by Mr Easton in October 2010, he sought to argue that the offering of a short term vacancy at an alternative B & Q store had resulted in him being re-certified as unfit for work due to depression. For whatever reason, the store manager at the alternative B & Q store was not going to be available to work in the store for 6 to 8 weeks and a temporary manager was needed. The vacancy had arisen at very short notice and whilst there were other suitable candidates available, it was felt that Mr Easton would have been aggrieved if the offer had not been made to him.
The fact that Mr Easton was still taking medication was not determinative as to how his future employment should have been handled. The trial Judge made it clear that there are many people who hold down demanding jobs who still require medication.
The issue of foreseeability tests whether the employer must know or the employer ought to reasonably have known that as a result of stress at work there was a risk of psychiatric illness. In relation to Mr Easton’s relapse, that would require foresight that offering Mr Easton the temporary post at an alternative location would cause a recurrence of the psychiatric illness. This does not mean that, if the employer is aware of some vulnerability, the employer inevitably will be liable for any psychiatric illness then suffered by the employee due to some act of the employer. It was held that B & Q were not in breach of duty as the approach taken regarding offering Mr Easton the temporary position did not give rise to a risk of psychiatric injury of which the employer knew or ought to have reasonably known would have this effect.
Whilst the original plan was for Mr Easton to return to work at a quieter store near his home on a phased basis, the employer was entitled to act on the basis that Mr Easton would be able to assess whether he wished to take up any other specific opportunities as and when they arose. Employers have no general obligation to make searching or intrusive enquiries and may take at face value what an employee tells it. In particular, an employee who returned to work after a period of sickness without qualification was usually implying that he believed himself to be fit to return to the work he was doing before.
On the facts, given the high foreseeability threshold in stress claims, the relapse was not considered to have been foreseeable by B & Q.
Mr Easton sought to argue that there was a lack of risk assessment in relation to stress within the workplace. B & Q had a document about managing stress, inviting individuals to identify and notify the employer of any concerning symptoms. The trial Judge was of the opinion that Mr Easton had made insufficient efforts to do this and therefore concluded that, on the particular facts of the case, a wider risk assessment would have had no effect on the outcome.
Lessons to learn for employers
In light of an increase in reports of stress at work, absence due to stress related conditions and termination of employment for the same, the judgment in Easton v B & Q Plc acts as a helpful reminder of the principles employers need to be aware of whilst managing stress in the workplace:
1. The threshold for breach of duty is high as the employee must establish that the harm in fact suffered was reasonably foreseeable. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless it knows of some particular problem or vulnerability.
2. The employer is generally entitled to take what it is told by his employee at face value, unless it has good reason to think to the contrary. There is no general obligation to make searching enquiries of the employee or seek permission for medical input.
3. To trigger an obligation to make enquiries and potentially complete a risk assessment, there must be clear indications of a likelihood of harm to health arising from stress at work (i.e. issues relating to sickness absence, complaints from the relevant employee or others and/or a known history of stress related illness) whereby any reasonable employer would realise that it should do something about it.
4. The mere fact that an employee remains on medication is not an indication as to how their work should be managed as many people hold down demanding jobs with the support of medication for underlying psychiatric illnesses.
If you would like to discuss any employment law issues please Get in Touch