Thom is lucky. He is made of plasticine and will be resistant to any form of psychiatric illness. However, not all of us are able to endure mental harm. As Waller J said there is an infinite variety of creatures, all with varying susceptibilities (1). For those of us who are more susceptible to mental illness and suffered from such during the course of employment, may be able to make a claim.
There have been an increasing amount of actions for workplace stress. In Scotland all such cases have been unsuccessful, holding an employee suffering from workplace stress and thereafter becomes ill is not enough for a claim for psychiatric injury to succeed(2). He must prove he has suffered from a recognised psychiatric illness (3), i.e his illness being classified in the DSM-IV. An existence of a duty of care must be established and the psychiatric illness was foreseeable (4). The question of foreseeability is crucial to the existence of a duty of care (5). Distress, anxiety, sadness and anger might be foreseen, however, they are normal human emotions (6). An employer is unlikely to anticipate such emotions will lead to a psychiatric disorder (7). Once it is established the psychiatric injury is foreseeable, a breach of the employer’s duty of care is proven. He must then establish causation (8).
Lord MacFadyen in Cross v Highlands & Islands Enterprise (9), added another strand to the foreseeability test: to take into account susceptibility of the employee of which he is aware or ought to be aware. Therefore the employee will most likely be in good stead when jumping the foreseeability hurdle.
It appears the Scottish courts are in fear of opening up the floodgates to many potential claimants. Although Lord MacFadyen seems to have adopted the thin-skull rule, he still held the pursuer had not established causation. It is argued he is maintaining the closure of the floodgates. Perhaps the Scottish courts feel they cannot deal with the masses of claims? It is argued the court will be able to distinguish between an employee who has suffered a recognised psychiatric injury as opposed to normal life emotions. Furthermore, the pursuer’s solicitor will determine whether he has a successful case or not.
Are Scottish courts aiming to protect employers from liability? It is argued the English test is far superior. The leading case of Hatton v Sutherland (10), provides guidance to whether there has been psychiatric injury. The employee does not have to suffer a recognised psychiatric illness and once the employer is made aware of the potential stress-related illness, remedial steps need to be taken e.g. sabbaticals, redistribution of work and counselling. The latter does not discharge the employer of his duty completely (11). Where an employer is made aware of the employee’s stress and has made counselling available, it is not enough (12). Counselling is not a remedy to discharge their duty in all cases (13). The English courts have been able to deal with masses of claimants and placed the plaintiff in a more favourable position than the employer. Despite having to prove foreseeability, the English test for psychiatric injury induced by stress at work is less rigid and Scotland should follow suit.
(1) Chadwick v British Transport Commission [1967] 1 W.L.R. 912 at 922 per Waller J
(2) Rorrison v West Lothian College 1999 Rep. L.R. 102; Fraser v State Hospitals Board for Scotland 2001 S.L.T. 1051; Stevenson v East Dunbartonshire Council 2003 S.L.T. 97 and; Taplin v Fife Council 2003 S.L.T. 653
(3) Rorrison v West Lothian College 1999 Rep. L.R. 102 Fraser v State Hospitals Board for Scotland 2001 S.L.T. 1051; Stevenson v East Dunbartonshire Council 2003 S.L.T. 97; Taplin v Fife Council 2003 S.L.T. 653
(4) ibid
(5) ibid
(6) Fraser v State Hospitals Board for Scotland 2001 S.L.T. 1051 at 1053 per Lord Carloway
(7) Fraser v State Hospitals Board for Scotland 2001 S.L.T. 1051
(8) Cross v Highlands & Islands Enterprise 2001 S.L.T. 1060
(9) 2001 S.L.T. 1060
(10) [2002] All ER 53
(11) Dickens v O2 plc [2008] EWCA Civ 114
(12) ibid
(13) Daw v Intel Corporation [2007] ICR 1318
