23 March 2018
Cases in which employees are successful in recovering damages for work-related stress have become less common as a result of restrictive rulings from the House of Lords and Court of Appeal. However employers must always be alert to signs from employees that could indicate a risk of psychiatric ill health resulting from problems at work. The recent case of Connor v Surrey County Council exemplifies the circumstances in which an employer could still be found liable.
Mrs Connor had been head teacher of the New Monument Primary School in Surrey from 1998 until September 2005, when she ceased work due to ill health (depression). The school was multi-cultural, with a high proportion of Muslim pupils and pupils for whom English was not their first language. The school performed well under her leadership.
In 2003, several new members joined the school’s governing body, including an elected parent governor, Mr Martin (who was a convert to Islam) and a local authority appointed governor, Mr Saleem. These two governors held particular views about faith schools, about the role of Islam within New Monument and about the relationship between the school and the local mosque.
Over a two-year period the manner in which they put forward these views at governing body meetings and some of Mr Martin’s activities outside the school caused Mrs Connor considerable problems leading to her eventual retirement on grounds of ill health. It became apparent that the two wished to increase the role of Islam at the school. They promoted this agenda through monopolising the discussion at meetings, making allegations about poor relationships between the school and the mosque, bombarding the school staff with requests for information and conducting verbal attacks on Mrs Connor’s conduct as head teacher. Mr Martin made a series of complaints about racism and “‘Islamophobia” and his activities culminated in a petition against Mrs Connor, through which he sought to stir up criticism of her in the local community.
Mrs Connor brought a claim against the local education authority (LEA) at Surrey County Council for negligence leading to psychiatric injury, beach of the Protection from Harassment Act 1997, breach of the duty of trust and confidence and breach of statutory duty under the Management of Health and Safety at Work Regulations 1999.
Her claim of negligence succeeded, resulting in award to her of £387,778 excluding interest. The court did not uphold the claim under the Protection from Harassment Act on the basis that the LEA was not vicariously liable under the Act for the actions of the governor who was alleged to have harassed Mrs Connor. The claims for breach of statutory duty and breach of the duty of trust and confidence overlapped with the negligence claim and did not lead to any additional compensation.
The court considered the facts leading up to Mrs Connor leaving work as a result of ill health in considerable depth in the context of the duties and powers of an LEA. It held that as from June 2004, the Council was on notice that Mrs Connor was at risk of psychiatric injury from stress. From that point the Council was under a duty to take action. That action might have been taken under sections 14 to 19 of the School Standards and Framework Act 1998, which confer on an LEA the power, where there is a serious breakdown in the way a school is governed and following the issue of a warning notice, to appoint additional governors and to replace the existing governing body with an interim executive board.
Instead the LEA adopted other measures, including mediation and an independent inquiry. The focus of the LEA’s actions appeared to be its wish to be seen to take the concerns of the two governors seriously. In the process it lost sight of its duty to take action to protect the health and welfare of Mrs Connor and her staff (some of whom were also signed off work as a consequence of events at the school). It did so in spite of clear warnings from an occupational health consultant that Mrs Connor was having difficulty coping and that her health was at risk.
In reaching its judgment the court was critical of the LEA on a number of other counts. In particular it criticised the manner in which the Council handled the eventual inquiry, which did not, in the court’s view comply with the principles of natural justice.
The case confirms:
that stress cases are fact sensitive;
that employers disregard at their peril, clear warning signs such as explicit concerns expressed by occupational health advisers;
that whilst indications by an employee that she is feeling stressed do not in themselves create liability, they ought to alert the employer to the possibility that psychiatric injury such as long term depression may follow;
that employers should not lose sight of their duties to their employees when difficulties arise in a sensitive and complex context such as that which arose in this case.