Costs: £10,000 costs justified despite claimant's current inability to pay
In this case the EAT looked at whether an employment tribunal was right to make a £10,000 costs award against a claimant, given her current inability to pay.
Published 12 May 2015
In this personal injury case the High Court had to decide whether an employee's psychiatric illness caused by occupational stress was reasonably foreseeable by the employer at any stage.
The Claimant, Mr Easton, was a very successful manager of a DIY store having previously worked in supermarkets. However, he became depressed, went off work and, except for two very brief unsuccessful attempts to return to work, he did not work for his employer again.
During one of these attempts he was offered a chance to temporarily manage a different store from where he had started his phased return to work which he said caused his relapse. He brought a case in the High Court against his employer arguing that his initial illness was caused by occupational stress and alleged this was due to the negligence and/or breach of statutory duty on the part of his employer. A significant element of Mr Easton's case was the lack of risk assessment by the employer in relation to stress.
The trial judge held that Mr Easton's claim failed at the first hurdle in respect of his first breakdown. This was because of his long managerial career in charge of large retail outlets with no psychiatric or psychological history at all. In fact, nothing about him gave anyone a clue that he might succumb to a psychiatric illness. As to the relapse suffered by Mr Easton, his employer clearly knew he had suffered a psychiatric illness: they were on notice that he was vulnerable. The trial judge found that regardless of Mr Easton's illness his manager was entitled to enquire about whether he wanted the alternative opportunity. The fact that he was still taking medication was not determinative of how his employment should have been handled. As the trial judge noted, there are many people holding down demanding jobs who still require medication. On the facts, given the high standard of proof required, offering the alternative role was not a breach of duty and the relapse was also not foreseeable by the employer.
There remained the issue of the lack of a general risk assessment. Instead of this the employer had, on its website, a document about managing stress, inviting individuals to identify and notify the employer of any symptoms. The trial judge was of the opinion that Mr Easton had made insufficient efforts to do this, and therefore concluded that a wider risk assessment would have had no effect on the outcome. As a result Mr Easton failed to establish that his psychiatric illness was foreseeable and that there had been a breach of duty by his employer.
While this case restates the law, rather than changes it, the case is a helpful reminder that an employer has no general obligation to make searching or intrusive enquiries, and may take at face value what an employee tells them. The foreseeability threshold in stress claims is high, which is why employees are rarely successful when they bring these claims. The lack of a risk assessment in this case was not fatal to defending the claim. However, had there not been an alternative measure provided by the employer to safeguard their employee's wellbeing at work the case might have turned out differently. Employers would be wise to ensure they either put risk assessments in place or they provide a well publicised self-assessment mechanism.