BEING YOUR OWN WORST ENEMY
THE NEED TO CLEARLY DISCLOSE MENTAL HEALTH ISSUES TO AN EMPLOYER IN STRESS AT WORK CLAIMS
Following theincreasing volume of cases passing through the County and High Court, increased coverage by the press and acknowledgement by political and business leadersthat stress is a serious workplace issue, it’s safe to say that stress at work is receiving a lot more attention than ever before.
However, it appears that the same issues continue to shadow such claims, in particular the continuedsocial stigma employees either face, or fear they may face if they disclose to an employer that they are suffering from a mental illness. Further it appears that at the upper end of the employment spectrum, successful mangers are concerned about the impact appearing ineffective or injured may have on their careers and promotion prospects. Adding the two together it is a recipe for disaster and we only have to look as far as the cases of Daniel v Secretary of State for the Home Department [2014] EWHC 2578 (QB) and Bailey v Devon Partnership NHS Trust [2014] WL 338768 for examples of this.
With this in mind, the recent case of Easton v B&Q plc. [2015] EWHC 880 (QB)is a useful reminder for both Claimants and Defendant in how to consider and assess what evidence will be needed to bring a claim, but also what is required to rebut it.
The facts of Easton
Mr Karl Easton, left school at 16 with modest academic qualifications. Shortly after leaving school he went to work at a local Sainsbury’s supermarket as a trainee butcher and worked his way up through the ranks. By 2001 he was the manager of a Sainsbury’s supermarket in Colchester. Over the next three years he progressed and eventually became Manager of a very large branch of Sainsbury’s at Warren Heath, Ipswich with an annual salary of around £72,000. He was a self-made man, driven and determined. He had come a long way and was worthy of admiration.
Mr Easton’s abilities attracted the attention of B&Q, and in2004 he was recruited by B&Q as a Unit Manager.He progressed well within B&Q and at the beginning of 2007 he was seconded to Head Office to lead a small team which implemented a structural change in the range of products available in B&Q stores. As a result of this in July 2008 he was appointed as Manager of the B&Q store in Romford. Of factual importance, The Romford store was about to undergo a substantial refurbishment. Mr Easton who was highly regarded by the senior management at B&Q was seen as the man for the job, and was tasked with overseeing the refurbishment of the Romford Store and then dealing with the store thereafter. The refurbishment was carried out successfullyand the Romford Store performed well thereafter.
Mr Easton had not experienced any undue stress relating to his work until the latter part of 2009. Until that time B&Q had employed night staff to restock the store but later in 2009(for commercial reasons) they instituted a nationwidevariation to the model. This model dictated that stores were restocked by staff working from 6am to 10am and from 8pm to midnight, rather than by staff working overnight. Mr Easton felt that this change was not suitable for introduction at Romford because the warehousing/storage space at the store was very small relative to the size of the store and the turnover of sales. However he did not make his concerns expressly known and it was noted inparagraph 20 of the Judgement that Mr Easton did not resist this change on the basis that “he was ambitious… he wanted to impress senior management with his ability to manage change… he did not resist the removal of night staff from the Romford store”.
Mr Easton found that the initial effects of the removal of night staff were not significant and at first, the stock level inputs were manageable due to careful work rotas, and the recruitment of new staff. However, by January 2010 the length of Mr Easton’s working day had increased from 9 ½ hours to 10/11 hours due to the lack of night staff and the extra work required to carry out restocking during the working day. By February 2010 his working day increased still further to 14 hours which was in his opiniondue to problems with stock and stock replenishment.
To add to Mr Easton’s stressaround this time, the Romford store was to receive a “Trade Point”. This was a commercial decision whereby in 2010, B&Qmade the decision to try and attract tradesmen into the stores. To do this it implemented a nationwide initiative to create an area in their stores for the exclusive use of tradesmen. In the Romford Store this required the construction of a mezzanine floor over part of the existing shop floor area which took a number of weeks to complete. This caused issues with the amount of the store floor which wasavailable to be used for stock replenishment. In short, the problems practically of managing so many changes were beginning to mount on Mr Easton.
Mr Easton alleged that the 4 – 5 weeks of floor construction had a huge impact on him. The construction work was grossly disruptive and he had to monitor the building work on a daily basis. To compound this the reduced shop floor and storage space was severely impacting restocking. The situation was exacerbated by the fact that two of Mr. Easton’s senior staff were on long term leave. At this time Mr Easton alleged he was working between 14 hours a day 7 days a week. Of note, Davis J inparagraph 33 found that “the construction of the Trade Point mezzanine floor caused very considerable disruption” but that the Claimant had “exaggerated the effects of that disruption”.
Mr Easton claimed that he made his concerns known but it was found by Davis J that whilst he may have “express[ed] some misgivings”they were not “expressed in such terms as to indicate that it ought to have put BQ on notice of a significant risk of excessive stress being imposed on Mr Easton” (paragraph 29). It was also rejected that Mr Easton in raising his issues to his employers did not in short constitute a “cry for help” (paragraph 34).
Mr Easton’s first breakdown
On 2nd May 2010, following excessive working hours, stress and workplace disruption, Mr Easton spoke to one of his superiors, a Mr Herrett on the mezzanine wherehebroke down in tears once he was alone with Mr Herrett and explained the issues he was facing. He was signed off sick with depression shortly afterwards.
Mr Easton’s second breakdown
Mr Easton was away from work for around 5 months andreturned work after undergoing treatment from medication and a psychotherapist. It was decided that he would begin his phased return to work at a B&Q store in Ipswich as it was close to his homeaddress and a less busy store than Romford.
Of note Mr Easton appears in his witness evidence to have said that “he did not feel mentally prepared for a return to work but he decided to do so because of his financial situation” but in oral evidence to have stated “that he wanted to go back to work and that he felt ready to return” (paragraph 40). This significant alteration did not assisthim.
On the 7th October 2010 a short term vacancy arose at a B&Q store in Belvedere in Kent which Mr Easton was moved in to manage although he stated that he did so under pressure. However this appears to have proven too much for Mr Easton who met his general practitioner on the 8th October 2010 who re-certified him as unfit for work due to depression. There was a further attempted return to work in early 2012 but this failed and Mr Easton never again returned to work with B&Q.
Mr Easton with regards to his return to work also sought to arguethat B&Q had not carried out a risk assessment in relation to stress but agreed that in the staff handbook there was a section entitled “Stress Management”which urged employees in the event of suffering from stress to “to talk to your Manager. If managers are not aware that there is a problem, they will not be able to help”.
The summary of the positions
Mr Easton’s case put concisely was that his initial psychiatric illness was caused by occupational stress and that this occupational stress was due to the negligence and/or breach of statutory duty on the part of B&Q. Further, he claimed that B&Q were in breach of duty in their management of his return to work in September 2010 so as to cause a relapse of his illness. WhilstB&Q accepted that Mr Easton has suffered a psychiatric illness caused (at least in part) by occupational stress, their primary line of defence was that Mr Easton’s illness was not foreseeable at any stage.
The Judgement
Sadly for Mr Easton, Davis J held that his claimfailed at the first of the Hatton v Sutherland [2002] ICR 613hurdles, namely the foreseeability of his injury in respect of this first breakdown. Or note at paragraph 55 it was stated that, “he had no history at all of any psychiatric or psychological problems. Nothing about him gave anyone any clue that he might succumb to a psychiatric illness. All of those who knew him well within B&Q had no idea that he might do so... It is quite clear that the foreseeability threshold in respect of the first breakdown cannot begin to be surmounted on any view of the evidence”. In short, Mr Easton had not done enough to flag up objectively the issues he was experiencing.
Turning to Mr Easton’s relapse,whilst Davis J acknowledged that whilst B&Q knew that he had suffered a psychiatric illness “the fact that he was still taking medication[was] hardly determinative as to how his future employment should have been handled. There are many people who hold down demanding jobs who still require medication… But B&Q were on notice that Mr Easton was vulnerable”. However it was Mr Easton’s “own account [that he] was ready to return to work and he wanted to return to work” that appears to have influenced the Court in dealing with his return to work. Mr Easton’s own evidence was of such a nature to effectively defeat any arguments he could make as to his injuries being foreseeable.
In this, and his desire to continue to progress, he appears to have become his own worst enemy.
Finally, considering the need for a risk assessment it was rightly held that this does not obviate the need for any psychiatric injury which could be suffered to be foreseeable.Davis J held in paragraph 65 that “on the facts of this case proper risk assessment would have had no effect on the outcome”.
Conclusion
Easton is a frustrating case for Claimant’sfor a number of reasons. Firstly, had Mr Easton been more vocal, it is possible that the absence of the completion of a risk assessment following his return from sick leave prior to his second breakdown could have been approached constructively as in Bailey. It may well be right that had he been more vocal and insistedthat one was carried out, a positive result similar to Young’s v The Post Office[2002] EWCA Civ 661 could have been arrived at.
Secondly, it was Mr Easton’s desire to succeed that caused and motivated him not to complain and to solider on through the difficulties he experienced. Had he been clearerin explaining what he was experiencing and in doing so generating robust evidence prior to first breakdown and subsequent return to work, his case may have been very different.
Thirdly, Easton makes clear that whilst an employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless it knows of some particular problem or vulnerability, and that the employer is generally entitled to take what it is told by his employee at face value, there are cases where a Claimant can and will succeed but these require bravery on the part of a Claimant, and disclosure of all the issues they face.
As a practical point,Easton strongly identifies the importance of live evidence, and in particular carefully preparing witness statements and ensuring a Claimant has read and agrees with them. When reading the Judgment it is difficult to escape the feeling that Davis J was not entirely satisfied with the changeable evidence of Mr Easton. This point alone gives ever stronger reasons for potential Claimant’s to seek early legal advice in how to deal with their potential claims and hopefully, avoid psychiatric injury through preventative measures.
LIAM RYAN
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