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Bailey v Devon NHS Trust

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26th May 2016

Why do stress risk assessments suddenly matter?

In Bailey v Devon Partnership NHS Trust the High Court accepted, on the particular facts, that the statutory duty to carry out a risk assessment directly informed the extent of the common law duty of care.

It is widely understood that you can’t be liable in negligence for failing to carry out a stress risk assessment, where an employee subsequently suffers psychiatric injury. Employers know that generic risk assessments form part of their duties under health and safety legislation, but that seems far removed from liability for causing a “stress injury”, not least because breach of the Management of Health and Safety at Work Regulations 1999 which provides for risk assessments, does not create civil liability of itself.

However, in Bailey v Devon Partnership NHS Trust [2014] WL 3387689, for the first time, the High Court accepted argument that the statutory duty to carry out a risk assessment directly informed the extent of the common law duty of care. The Judge’s reasoning included the stark statement that employers should now be taken to be more aware that workplace stress can cause crippling psychiatric injury, by comparison with 15 years ago. It is necessary to look at the detail of the judgment in order to understand the potential ramifications.

Analysis

• The significance of the decision on the facts of the case is that the failure to do the risk assessment established a breach of the duty of care before the claimant had taken time off with psychiatric illness and hence before the employer could be taken to be on notice of her particular vulnerability. One important aspect of the facts was that this employer had a stress policy which included an individual stress risk assessment for employees known as a “stress assessment tool”.
• HHJ Cotter QC carried out an exhaustive analysis of the statutory duties under the MHSWR and of the personal injury case law on the subject of risk assessment. He found that the employer had breached its statutory duty to carry out a risk assessment.
• The argument which the Judge accepted was as follows. The duty under regulation 3 of the MHSWR is a suitable and sufficient risk assessment taking account of relevant publications. There had been a number of Health and Safety Executive (“HSE”) publications encouraging management to take the issue of occupational stress seriously. The most recent amendment to the HSE Guidance made it clear that failure to comply with these standards may result in an employer being prosecuted by the HSE.
• There had been a widespread underestimation by the courts of the importance of the adequacy of risk assessments, despite the fact that they were a cornerstone of modern European health and safety law. However, more recent Court of Appeal authorities such as Bunning v GT Bunning [2005] EWCA Civ 104 and Spencer v Boots [2002] EWCA Civ 1691 recognised their importance and that a failure to carry them out did not equate to, but was evidence of, a breach of the common law duty of care.
• The difficulty in previous stress cases (eg Mullen and Sayers) had been linking the generic duty in the MHSWR to carry out risk assessments, with the failure of such duty leading to a foreseeable risk of injury to this individual. Breach of regulation 3 would not lead to liability if the employee was injured thereafter due to a generic risk which was identified because the regulations did not require foreseeability of injury.
• However, here the argument was that due to a heightened appreciation of the risk by employers generally, a generic stress risk assessment was necessary and that would have identified a generic risk. That assessment would have put them on notice of the need to take more specific steps, such as a more detailed personal assessment or the use of an individual stress assessment tool^[1]. That would or could have identified the Claimant’s stress^[2].

HHJ Cotter QC continued that “such a risk assessment may well then (and this is a question of fact) put an employer on clear notice of the need to take adequate steps to prevent an employee or employees from injury. Such steps may include a more detailed personal assessment…which may then provide indications of impending harm to health arising from stress at work which are plain enough for any reasonable employer to realise that he should do something about it“.

Conclusions

Foreseeability of injury to the particular employee is probably the biggest practical hurdle to succeeding in a negligence claim. Here the claimant found an ingenious way around that although despite showing a breach of duty of care the claimant did not actually succeed because medical evidence showed that if different steps had been taken it would not actually have prevented her ultimate break down. Nevertheless, the decision is certain to relied upon again by claimants and the argument is likely to gain traction in any case involving a large employer which has tools available (in this case an individual stress risk assessment tool, which was not applied) which would have revealed the vulnerability of this individual and the need to make changes in the working environment to protect their health.

This does no more that bring the law on “stress” into line with other areas of work-place personal injury claim. It is now incumbent on employers to ensure that risk assessments include potential psychiatric injury and are suitable and sufficient to deal with the risks which they identify.

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