Dickins v O2 Plc  EWCA Civ 1144 CA
stress | employer negligence | damages
The Court of Appeal has upheld a county court decision to award damages for psychiatric injury due to excessive work-related stress.
Ms Dickins worked for O2 Plc from 1991. In March 2001 it was noted by her managers that work “had taken its toll on her”. She suffered from irritable bowel syndrome and had counselling arranged by her doctor. She transferred to another job in August 2001 but did not receive the expected training and support. She was exhausted, even after a short holiday in March 2002. She asked to move to a less stressful job, explaining her difficulties. Her manager asked her to wait three months. She had a meeting with another manager on 23 April and asked for six months off work, saying that she was “stressed-out” and drained. She said that she did not know how long she could carry on without going off sick. The manager advised her to contact the employee counselling service. In May 2002 she said that she was still feeling stressed, and that she was already having counselling. She repeated her request for six months off work, described her symptoms, and said that she would need to go off sick sooner or later. It was agreed that she would be referred to occupational health. Although a referral was made, nothing further was done. In June she was signed off by her doctor as unfit to work due to anxiety and depression. She remained off sick until her employment was terminated in November 2003. She brought a claim for damages against O2.
The county court found O2 liable for psychiatric injury negligently caused by excessive stress in the course of employment, and awarded damages of £109,754, apportioned by 50%. O2 appealed.
The Court of Appeal addressed the four strands of O2’s appeal. In relation to “reasonable foreseeability” the Court of Appeal held that the county court was correct to find that O2 had had a clear indication of Ms Dickins’ impending illness. The meeting of 23 April had made clear that she was under extreme stress but her managers had done nothing about it. It was correct to take the whole background into account when considering what the employer’s reactions should have been on 23 April. Regarding “breach of duty” the county court had not disregarded the offer of counselling. Although it was held in Sutherland v Hatton  IRLR 263 CA that an employer that provided a confidential advice and counselling service was unlikely to be in breach of duty, merely suggesting that Ms Dickins seek counselling was insufficient. The county court was right to find that an immediate referal to occupational health, and sending her home would have been beneficial. Once she had told the manager about her condition some responsibility passed to the employer. Hatton did not mean that all responsibility for making the decision about whether or not to carry on working rested with the employee. With regard to “causation”, the finding that the breach of duty made a material contribution to Ms Dickins’ illness was inevitable. It would be perverse to find that the employer’s failure to address her problems had not materially contributed to her illness. Finally, the issue of “apportionment” was addressed. The county court decision to apportion damages across the board in light of Hatton was understandable. However, the Court of Appeal expressed doubts (in obiter) about the appropriateness of doing so. O2’s appeal was dismissed.
Case transcript of Dickins v O2 Plc (on the BAILLI website)
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