Law: After the burn-out, the lawsuit

The case of John Walker, a social worker who sued his employer for two work-related breakdowns, may lead to an increase in personal injury court cases. By Ian Hunter

Imagine you are a 35-year-old banker. You have worked for the bank since leaving university. The money has been good but the work has been endless. You have been subject to a hectic timetable and dogged by lack of support. Suddenly you collapse with exhaustion. The medical reports confirm that a stress-related illness has developed; the ascent to the top is over.

In the past the only option for such a victim was to look for a much lower-paid job. Burn-outs remain a fact of the Nineties, but in the future these burn-outs are more likely to be accompanied by stress-related personal injury claims. The debate continues as to how successful such claims will prove to be.

It has been firmly established that employers are liable to pay compensation when an unsatisfactory working environment has made an employee ill.

The case of the social worker, John Walker, who suffered two work-related breakdowns, established that the employer's duty to provide a safe place of work extended not only to physical injury but to mental ill effects as well.

The Health and Safety at Work Act 1974 provides that an employer must, amongst other things, provide a working environment that is as far as reasonably practicable safe and without risks to health. This obligation has recently been buttressed by the Management of Health and Safety at Work Regulations 1992. These regulations place a duty on employers to identify and prevent health and safety problems.

In order to succeed with a claim for stress-related injury, the employee must leap a number of hurdles. First, the employee must establish that the employer had a duty of care that was broken; second, that the injury caused was a result of the employer's breach and third that, in the circumstances, the injury suffered was reasonably foreseeable.

Future battles are likely to revolve around two points. First, was the risk reasonably foreseeable? and second, was the injury caused the result of the employer's action?

Much has been made of the fact that Mr Walker suffered not one but two breakdowns. It was established after the first breakdown that it was reasonably foreseeable that overwork would expose Mr Walker to the risk of injury.

Since that case the Health and Safety Executive has published guidelines to deal with stress at work. In addition, speculation has increased that the European Union's Working Time directive will become enshrined in British law, in spite of the present government's resistance. The directive seeks to regulate the number of hours worked by employees and the periods of rest to which they should be entitled.

These developments, together with increasing awareness of and research into stress-related injuries, are likely to make it harder in future for employers to argue that they could not reasonably be expected to foresee a health risk for employees who are subject to long hours and tight deadlines.

Proving that any mental illness suffered by an employee is caused by work-related stress will remain difficult. Stress-related illness is often the result of a combination of problems, some of which may not be work-related, such as relationship difficulties or a bereavement.

In Mr Walker's case, the cause of his illness was relatively easily established. Some employees may be unusually susceptible to stress-related illnesses because of unidentified personality traits. In such cases the employer will have strong grounds for arguing that any injury caused by working conditions was not reasonably foreseeable.

The likelihood is that stress-related claims will increase. Cary Cooper, professor of organisational psychology at Umist, supports this view. He comments: "The Walker case has provided an added impetus. The message of the case for employers was they have a duty of care as to how they manage people in the same way as they have a duty as to how they manage machinery. This is quite profound." Professor Cooper points out that stress- related claims predated Walker. He observes: "These include unfair dismissal claims for bullying, together with claims for sexual and racial harassment."

However, Andrew Buchan, a barrister who has been closely involved in stress-related cases, does not predict a flood of successful claims.

He comments: "The Walker case was a landmark decision. As the Law Commission has said, it constitutes a logical and just application of the law on safety at work to psychiatric illness. There will be other successful cases due to man's inhumanity to man, but these will be exceptional. The flood gates will be kept well and truly shut by individual problems of proof."

Start your day with The Independent, sign up for daily news emails
Arts and Entertainment
Attenborough with the primates
tvWhy BBC producers didn't want to broadcast Sir David Attenborough's famed Rwandan encounter
News
Campbell: ‘Sometimes you have to be economical with the truth’
newsFormer spin doctor says MPs should study tactics of leading sports figures like José Mourinho
Sport
football
Life and Style
Agretti is often compared to its relative, samphire, though is closer in taste to spinach
food + drink
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
News
Kelly Osbourne will play a flight attendant in Sharknado 2
people
News
Down-to-earth: Winstone isn't one for considering his 'legacy'
people
News
The dress can be seen in different colours
i100
Sport
Wes Brown is sent-off
football
Voices
Lance Corporal Joshua Leakey VC
voicesBeware of imitations, but the words of the soldier awarded the Victoria Cross were the real thing, says DJ Taylor
Life and Style
Alexander McQueen's AW 2009/10 collection during Paris Fashion Week
fashionMeet the collaborators who helped create the late designer’s notorious spectacles
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Bookkeeper / Office Co-ordinator

£9 per hour: Recruitment Genius: This role is based within a small family run ...

Recruitment Genius: Designer - Print & Digital

£28000 - £32000 per annum: Recruitment Genius: This Design and marketing agenc...

Recruitment Genius: Quantity Surveyor

£46000 per annum: Recruitment Genius: This property investment firm are lookin...

Recruitment Genius: Telesales / Telemarketing Executive - OTE £30k / £35k plus

£18000 - £35000 per annum: Recruitment Genius: This company specialises provid...

Day In a Page

War with Isis: Fears that the looming battle for Mosul will unleash 'a million refugees'

The battle for Mosul will unleash 'a million refugees'

Aid agencies prepare for vast exodus following planned Iraqi offensive against the Isis-held city, reports Patrick Cockburn
Yvette Cooper: We can't lose the election. There's too much on the line

Yvette Cooper: We can't lose the election. There's too much on the line

The shadow Home Secretary on fighting radical Islam, protecting children, and why anyone in Labour who's thinking beyond May must 'sort themselves out'
A bad week for the Greens: Leader Natalie Bennett's 'car crash' radio interview is followed by Brighton council's failure to set a budget due to infighting

It's not easy being Green

After a bad week in which its leader had a public meltdown and its only city council couldn't agree on a budget vote, what next for the alternative party? It's over to Caroline Lucas to find out
Gorillas nearly missed: BBC producers didn't want to broadcast Sir David Attenborough's famed Rwandan encounter

Gorillas nearly missed

BBC producers didn't want to broadcast Sir David Attenborough's famed Rwandan encounter
Downton Abbey effect sees impoverished Italian nobles inspired to open their doors to paying guests for up to €650 a night

The Downton Abbey effect

Impoverished Italian nobles are opening their doors to paying guests, inspired by the TV drama
China's wild panda numbers have increased by 17% since 2003, new census reveals

China's wild panda numbers on the up

New census reveals 17% since 2003
Barbara Woodward: Britain's first female ambassador to China intends to forge strong links with the growing economic superpower

Our woman in Beijing builds a new relationship

Britain's first female ambassador to China intends to forge strong links with growing economic power
Courage is rare. True humility is even rarer. But the only British soldier to be awarded the Victoria Cross in Afghanistan has both

Courage is rare. True humility is even rarer

Beware of imitations, but the words of the soldier awarded the Victoria Cross were the real thing, says DJ Taylor
Alexander McQueen: The catwalk was a stage for the designer's astonishing and troubling vision

Alexander McQueen's astonishing vision

Ahead of a major retrospective, Alexander Fury talks to the collaborators who helped create the late designer's notorious spectacle
New BBC series savours half a century of food in Britain, from Vesta curries to nouvelle cuisine

Dinner through the decades

A new BBC series challenged Brandon Robshaw and his family to eat their way from the 1950s to the 1990s
Philippa Perry interview: The psychotherapist on McDonald's, fancy specs and meeting Grayson Perry on an evening course

Philippa Perry interview

The psychotherapist on McDonald's, fancy specs and meeting Grayson Perry on an evening course
Bill Granger recipes: Our chef recreates the exoticism of the Indonesian stir-fry

Bill Granger's Indonesian stir-fry recipes

Our chef was inspired by the south-east Asian cuisine he encountered as a teenager
Chelsea vs Tottenham: Harry Kane was at Wembley to see Spurs beat the Blues and win the Capital One Cup - now he's their great hope

Harry Kane interview

The striker was at Wembley to see Spurs beat the Blues and win the Capital One Cup - now he's their great hope
The Last Word: For the good of the game: why on earth don’t we leave Fifa?

Michael Calvin's Last Word

For the good of the game: why on earth don’t we leave Fifa?
HIV pill: Scientists hail discovery of 'game-changer' that cuts the risk of infection among gay men by 86%

Scientists hail daily pill that protects against HIV infection

Breakthrough in battle against global scourge – but will the NHS pay for it?