Act: Ellis, Q.C.; Balfour + Manson LLP

Alt: Young, Q.C.; Brechin Tindal Oatts

25 November 2009

[1] The pursuer was formerly employed by St Andrews College, Bearsden in Glasgow. The college merged with the defenders and respondents on 1 April 1999 and the pursuer therefore became an employee of the defenders at that date. She was employed as a senior lecturer within the department of Curriculum Studies in the Faculty of Education in the university. Following the merger the pursuer says that she found her workload increased considerably and progressively. She was also expected to undertake research and latterly was required to take on a substantial proportion of three other and separate coordinate posts. In addition she had teaching duties. Her original contractual terms included a requirement that she should work for 32 1/2 hours each week. She says that her additional duties initially resulted in her working more than would normally be expected of one full time employee. This increased to where she was working continually in excess of what would be done by 1.5 full time employees and eventually to the point where she was undertaking the workload normally carried out by 3.5 employees. As a result she claims that she came to be under significant pressure in the discharge of her duties and had to work excessively long hours. She avers that from about June 1999 onwards she repeatedly intimated to her employers that her workload was excessive and that this was having an adverse effect on her health. She described her various symptoms to her employers. On 14 June 2000 the pursuer tendered her resignation to the defenders explaining that her workload was then well in excess of 100 hours per week, and pointing to the fact that she had undertaken additional duties due to staff shortages in respect of post-graduate secondary and then post-graduate primary matters as well as undertaking many other duties relating to international exchange issues. In particular she emphasised that all of these remits belonged to other members of staff at the same time in the previous year. She was persuaded to remain in post by her employers who promised to provide her with assistance. She maintains that, despite what is averred by the defenders, this additional help was not in practical terms forthcoming. Finally she stopped work on 13 January 2001 and has thereafter remained off work, citing as the reason physical and mental symptoms caused by the levels of overwork required of her by the defenders. She now complains of depressive disorders and anxiety and that she has suffered financial loss.

[2] The case came out for debate before the Lord Ordinary on the defenders' first preliminary plea. The defenders sought dismissal of the action and their argument was presented under three heads. First, it was said that the defender could not have foreseen the risk of psychiatric harm to the pursuer. Secondly, the defenders disputed that they had a duty to carry out a risk assessment on the consequences to the pursuer of the changes to her employment. Thirdly, the defenders challenged the pursuer's averments regarding the steps which she says they should have taken in order to fulfil their duties of care. The Lord Ordinary rejected the defenders' submissions on the first and second heads of argument, but upheld the third submission, holding that the pursuer had not gone far enough in identifying the steps which she says the defenders should have taken in order to prevent the onset of her symptoms. The pursuer has now reclaimed the Lord Ordinary's decision on the last point, which is the sole issue in this appeal, arguing that the averments on record, read as a whole, give enough notice to the defenders to the case which they have to meet

[3] As we have said, the Lord Ordinary held that the pursuer had made insufficient averments to identify the steps which the defenders should have taken in terms of their general duty of care to prevent the harm which she claims was a consequence of her work overload. He considered that the requirement that they should have either relieved her of a material part of her duties or provided relief or assistance was inadequate. He thought that the pursuer had failed to spell out what was meant by the terms "relief" or "assistance". He also concluded that because the defenders had in fact provided additional assistance, the pursuer had to go further than she did and specify what steps ought to have been taken and why they would have made a difference. In support of his conclusions he relied on various dicta in the cases of Barber v Somerset County Council 2004 1 WLR 1089 and Hatton v Sutherland [2002] EWCA Civ 76; [2002] 2 All ER 1 page 1. In Hatton it was observed by Lord Justice Hill (as he then was) that certain propositions could be formulated to apply in stress at work cases. The relevant ones are as follows:-

" 10. An employer can only be expected to take steps which are likely to do some good.

...

13. In all cases it is necessary to identify the steps which the employers could and should have taken before finding him in breach of duty of care.

14. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. Further the Lord Ordinary placed reliance on the passage from Lord Rodger's speech in Barber:

'The employers duty is to take reasonable care to avoid injury to his employee's health. Therefore even where a court finds that such injury was foreseeable it must go on to consider what steps the employer could be reasonably expected to take once he was aware of that risk and whether they would have been effective'.

However all of this is subject (as the Lord Ordinary himself acknowledges) to that what was said by Lord Justice Scott Baker in Harton v South Essex Mental Health and Community Care National Health Service Trust 2005 ECWA 06, to the effect that what was said in Hatton and by implication what was said later by Lord Rodger in Barber was not intended to cover all the infinitely variable facts that are likely to arise in stress at work cases "The general principles are to be found in Hatton but we emphasise the need for care in their application to the particular facts under consideration".

[4] In the present appeal Mr Young, senior counsel for the defenders and respondents sought to maintain that the approach taken in the cases of Barber and Hatton was very much in point. In both those cases, he said, the employee had proved unable to perform his contractual duties and the court had expected that the claimants should then specify the steps which the employer should have taken and why those measures would have been effective. The pursuer has not done this in the present case, and the defenders could not know what steps they should reasonably have been expected to take and could not thereafter properly explore whether such steps would have been effective. In these circumstances the Lord Ordinary was correct to dismiss the pursuer's case.

[5] In this case however we are not satisfied that the Lord Ordinary was correct. The position here is significantly different from that in Barber and Hatton. In those cases the employee was proved to be unable to perform his contractual duties. In the present case the pursuer's averments are that due to staff shortages she was required to perform duties additional to those contracted for, and, on the averments, despite repeated assurances that relief would be sought and provided, nothing was done. As focussed in her letter of resignation of 14 June 2000, the pursuer advised the defenders that her workload was in excess of 100 hours per week as opposed to her contractual hours of 32 1/2, and that she was now undertaking additional workloads in three separate areas which a year before had been carried out by other members of staff. From that point until she eventually stopped work in January 2001 no effective steps were taken to reduce the workload, despite general acknowledgements by the defenders that an unreasonable workload was being imposed on her. Against that background, the pursuer, after pleading a general duty of care, avers "that the defenders should have taken urgent steps within a reasonable time from June 1999 onwards and urgently from in or about the summer of 2000 onwards to the time of her resignation letter to provide relief from or assistance for the pursuer in the performance of her duties so as to reduce materially the workload imposed upon her and not to have imposed additional duties without providing such relief and assistance".

[6] The Lord Ordinary having satisfied himself on the question of foreseeability we are in these circumstances of the opinion that the above averments are quite sufficient and give adequate notice of the pursuer's case. Against the background where she describes that she was working over 100 hours a week despite being under contract to do 32 1/2 hours, and that she was inter alia performing the duties of three former colleagues, there is in our view enough notice given of what she says the defenders could and should have done in order to prevent the damage to her health. Accordingly we shall allow the reclaiming motion and send the case for Proof Before Answer.