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."