Judgments - Barber (Appellant) v. Somerset County Council (Respondents)

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    26. Mr Barber's problem arose from doing the work which he had contracted to do and for which the County Council paid him under his contracts. Moreover, the judge was not satisfied that this pressure of work "in itself" placed him at a materially higher risk of mental illness than another teacher working in a comparable position with a heavy workload. In other words, the demands placed on Mr Barber were not excessive in themselves, but only excessive in the case of Mr Barber because of some factor in his own personality or some condition that made him more vulnerable to developing a mental illness as a result of the stress involved in his work. There is therefore no question of the Council having reduced staffing to such a level as to put all their teachers at risk of developing a mental illness. Such a case would raise very different issues. Rather, the question is: what steps did the Council have to take when, by reason of some individual vulnerability, Mr Barber was liable to suffer material injury to his (mental) health if he carried out the duties which were stipulated in his contract(s) and for which he was paid his salary?

    27. As the Court of Appeal point out, it is really impossible to begin to answer that question without first knowing what steps might have been effective to safeguard Mr Barber's health. But the judge made no finding as to whether Mr Barber would have fully recovered his health and been able to tackle his entire workload if he had been given some (particular kind of) assistance for a (short) time. This would have required expert psychiatric evidence. In the absence of such evidence, one might incline to the view that, since Mr Barber was soon unable to cope when the autumn term began after the summer holidays, he would have been equally unable to cope when he returned to his full duties after some period of lighter work. If so, temporary assistance would not have provided an effective solution. At most, it would have postponed the start of his illness.

    28. On the judge's findings the school authorities were faced with a situation where Mr Barber was unfit, through no fault of his or theirs, to carry out the duties which he had agreed to perform. In his particular case, one possible way of alleviating the problems might have been for him to give up his position as project manager and concentrate on his work as mathematics co-ordinator. Again, there is nothing in the judge's findings in fact to show whether that step would have relieved the pressure on him sufficiently to allow him to carry on with his duties as mathematics co-ordinator without any risk to his health. Nor is there anything to suggest that Mr Barber ever contemplated taking that step - which would, of course, have meant a reduction in his total salary.

    29. Mr Barber might well have resisted any suggestion that he should give up his work as project manager and take a corresponding reduction in salary. And there must be situations where, just as an adult cannot be required to undergo medical treatment against his will, he is entitled to continue working at high pressure, even though he runs the risk of damaging his health, whether mental or physical. For example, a university teacher employed to do research can surely choose to work all hours of the day and night, at possible or even obvious risk to his health, in the hope of making a breakthrough in deciphering an ancient language or unravelling some secret in genetics. The university authorities can hardly be under any duty to do more than warn of the possible dangers: they cannot be obliged to lock away the photographs of the texts or bar the laboratory doors to prevent him from working into the night. Not only would that be to interfere with his right to carry out his duty of research under his contract: it would risk depriving the world of the benefits of his discovery.

    30. Most people are not engaged in work of that kind. It could be said that, in other cases, where an employee is liable to develop some illness if he carries out the job which he is employed to do, the employer owes him a duty of care not to continue to employ him to perform that job. That might be one possible view in a case like Mr Barber's. But such a duty would have to mesh with the provisions of the relevant employment contract regulating sickness absences and ill-health retirement. More importantly, at least where the risk is small, the common law has taken the view that the employee can decide whether to run it. Devlin LJ explained the position in a well-known passage in Withers v Perry Chain Co Ltd [1961] 1 WLR 1314, 1320. An employee had chosen to go on working even though there was a risk that she would develop dermatitis. Devlin LJ said:

    "In my opinion there is no legal duty upon an employer to prevent an adult employee from doing work which he or she is willing to do. If there is a slight risk, as the judge has found, it is for the employee to weigh it against the desirability, or perhaps the necessity, of employment. The relationship between employer and employee is not that of a schoolmaster and pupil. There is no obligation on an employer to offer alternative safe employment, though no doubt a considerate employer would always try to do so - as the defendants thought they had done here. Nor is there any obligation on an employer to dismiss an employee in such circumstances. It cannot be said that an employer is bound to dismiss an employee rather than allow her to run a small risk. The employee is free to decide for herself what risks she will run. I agree with what [Sellers LJ] has said, that if the common law were to be otherwise it would be oppressive to the employee, by limiting his ability to find work, rather than beneficial to him…. It may be also, on the principle of Paris v Stepney Borough Council, that when the susceptibility of an employee to dermatitis is known there is a duty on the employer to take extra or special precautions to protect such an employee."

I do not pause to consider how far, if at all, the reasoning in this passage is affected by the current requirements on employers to carry out risk assessments, but I draw particular attention to Devlin LJ's view that the employer is under no common law obligation to offer alternative safe employment. That is, in effect, the obligation which Mr Barber would impose on the County Council - not in the sense of finding him a job in some other part of the school, but in the sense of changing his job by supplying assistance that would reduce his workload and make it safe for him to carry on as mathematics co-ordinator and project manager at the same pay. In contract terms, that amounts to saying that his job specification should be changed and the employers' obligations under the contract correspondingly increased in these circumstances.

    31. In support of a duty of care of that kind Mr Langstaff QC relied on Walker v Northumberland County Council [1995] 1 All ER 737, a decision that has often been cited in subsequent cases on mental illness caused by stress at work. In that case the plaintiff, a social worker, had suffered a mental breakdown when he was driven to the point of despair by the council's failure to provide him with what he considered to be sufficient resources to satisfy the urgent needs of the people, and particularly the children, of his area for social services. He returned to work on the basis that he would be provided with assistance but, due to additional demands on the social services in the area, it did not materialise. Colman J held, at p 760a - b, that the standard of care to be expected of a reasonable local authority required that "additional assistance should be provided, if not on a permanent basis, at least until restructuring of the social services had been effected and the workload on Mr Walker thereby permanently reduced." The assistance should have been provided "notwithstanding that it could be expected to have some disruptive effect on the council's provision of services to the public." The decision is distinguishable, but what matters is the view that an employer can be under a duty of care to provide an employee with assistance, of uncertain scope and duration, to enable him to perform his contractual duties.

    32. That view also lies at the heart of the judge's perception of the Council's duty of care in this case. Mr Barber would be at work, drawing his normal pay, but doing less than his contractual duties - the Council being obliged to provide him with assistance to top up the deficit. It is easy to see that, in practice, colleagues would often rally round to help a teacher when he returned after being off sick. And they might well do so at other times when they felt that, perhaps because of a family illness, a colleague was going through a difficult patch. No doubt, a head teacher would try to create an atmosphere that would be conducive to such mutual assistance. But it is rather a different thing to say that the Council's duty of reasonable care to an employee requires them to provide him with assistance for an indefinite period even to the extent of employing a supply teacher so that he can do the amount of work he can cope with, but less than the amount for which he is being paid in terms of his contract. The difficulty of framing an implied term to that effect and reading it into a contract of employment is obvious. I refer generally to the instructive discussion of implied terms relating to working hours in the opinion of Sir Nicolas Browne-Wilkinson V-C in Johnstone v Bloomsbury Health Authority [1991] ICR 269.

    33. Contracts of employment will often have provisions dealing with the employee's sickness. If an employee is off work because of illness, he will be entitled to statutory sick pay at a particular rate. Whether or not the employee is entitled to more under his contract of employment, the employer will be able to recover the statutory sick pay element from the Department of Social Security. While the employee is off sick, his colleagues may be asked to provide cover for him, but this puts extra pressure on them and, in the case of teachers, the terms of their contracts strictly limit the time for which they can be required to do this. Beyond that, the school authorities will have to try to find a suitable supply teacher. The cost of employing the supply teacher will be offset, to a certain extent, by the reduction in the cost of employing the sick teacher. By contrast, teachers' contracts do not oblige them to provide cover for a colleague who is present but not doing his full workload. The school authorities would have to bear the entire cost of any supply teacher. Not surprisingly, the assumption underlying the conditions of contract appears to be that the authorities can expect teachers, who are not off sick, to carry out their contractual duties. Pupils and their parents also might think that the person chosen and employed as best fitted to lead the mathematics team would be able to do the job and not have to hive off part of it to someone else who had not been selected for the post.

    34. The contract of employment will usually regulate what is to happen if an employee becomes unable, due to illness or injury, to carry out his duties. There may be provision for a defined period on full pay, followed by a further defined period on reduced pay, followed by termination of the contract. At the end of the process the employer is free to make new arrangements. While the timetable is likely to be definite, the exact legal analysis of the employee's position when off work under such provisions is by no means free from difficulty. Whatever the position, however, the introduction of a tortious duty of reasonable care on the employer to provide assistance so that the employee can return to work and draw his normal pay, but do less than his full duties for an indefinite period, does not sit easily with such contractual arrangements. Nor does it seem likely to promote efficiency within the enterprise or department.

    35. When the contractual position, including the implied duty of trust and confidence, is explored fully along with the relevant statutory framework, your Lordships may be able to give appropriate content to the duty of reasonable care upon which employees, such as Mr Barber, seek to rely. But the interrelationship of any such tortious duty with the parties' duties under the contract of employment has not been examined in any depth in the cases to which we were referred and was not analysed in this appeal. For that reason I would not wish to express any view on the content of the Council's duty of care in this case.

    36. Subject to these observations, I respectfully agree that, for the reasons Lord Walker gives, the appeal should be allowed.

LORD WALKER OF GESTINGTHORPE

My Lords,

    37. Mr Alan Barber (the claimant at first instance and the appellant in this House) was a schoolteacher. He took early retirement at the end of March 1997 (when he was 52 years old) after suffering a mental breakdown at school in November 1996. Since then he has been unable to work as a teacher, or to do any work other than undemanding part-time work. He sued his employer, the Somerset County Council, for damages for personal injuries (principally in the form of serious depressive illness). His claim was heard in the Exeter County Court by Judge Roach, who gave judgment in his favour on 8 March 2001. Mr Barber was awarded general and special damages amounting to just over £101,000, including interest, with costs.

    38. The County Council appealed to the Court of Appeal which heard the appeal together with three other appeals. They were all appeals by employers against awards made to employees for psychiatric illness caused by stress at work. On 5 February 2002 the Court of Appeal allowed three of the appeals (including the County Council's appeal against Mr Barber) in a composite judgment reported as Hatton v Sutherland [2002] EWCA Civ 76; [2002] 2 All ER 1; [2002] ICR 613. The Court of Appeal held that the County Council had not been in breach of their duty as an employer. It also held that in any event the judge should have calculated Mr Barber's loss of future earnings on a lower multiplier because of the chance that, if he had continued with a similar teaching job, his health might have broken down in the same way. Mr Barber appeals to this House with leave granted by an Appeal Committee (but does not challenge the Court of Appeal's reduction of the multiplier). There has been no further appeal in any of the other three cases.

    39. As the argument before your Lordships developed, it became apparent that the area of dispute between the parties was quite limited. Mr Barber did not challenge, except on peripheral points and matters of emphasis, the principles of law set out in the judgment of the Court of Appeal (delivered by Hale LJ). The County Council, while not uncritical of the judge's judgment, did not challenge any of his findings of primary fact. In the event the main issue for your Lordships is whether the Court of Appeal was right to conclude, as it did, that the evidence before the judge did not, even taken at its highest, sustain a finding that the County Council were in breach of the duty of care which they owed, as employer, to Mr Barber. It is therefore necessary to go into the facts in some detail.

    40. Mr Barber trained as a teacher in London, specialising in mathematics and physical education. After qualifying in 1970 he moved out of London, and between 1971 and 1984 he held teaching posts at two different schools in Wiltshire. He married in 1972 and had three children, all now adult. His wife left him in 1989 and they were divorced in 1990, but the divorce was not acrimonious.

    41. In 1983 Mr Barber applied successfully for the post of Head of the Mathematics Department at the East Bridgwater Community School (then called Sydenham Comprehensive School). He started in his new post in January 1984. The school was then facing serious problems, which seem to have got worse rather than better during Mr Barber's time at the school. Its catchment area contained many disadvantaged families. The school roll was dropping from a high point of over 1,000. It eventually reached less than half that number. This had a direct effect on the school budget, including the amount available for teachers' salaries. Nevertheless Mr Barber saw his new job as a challenge. The judge recorded that it was common ground that Mr Barber was regarded by those with whom he worked as a dedicated and conscientious teacher. The judge also described Mr Barber as diligent and industrious.

    42. In consequence of the falling school roll there was in 1995 a restructuring of staffing at the school. The posts of heads and deputy heads of department were abolished and Mr Barber reapplied for the post of "Mathematical Area of Experience Co-ordinator". His two deputies (two highly-regarded women teachers) lost their status as his deputies and (while continuing to teach mathematics) were required to take on new and demanding pastoral duties. Mr Barber was told that in order to maintain his salary level he would have to take on further responsibilities. He was interested in taking on an environmental project, but instead was invited to apply to be Project Manager for public and media relations, and he was appointed to that position. Public and media relations were regarded as important by the school's senior management team, because of the need to improve the school's reputation (and so increase its enrolment). All these changes took effect at the beginning of the autumn term in September 1995.

    43. It is common ground that Mr Barber worked long hours in discharging his new responsibilities. He regularly came back into school to work on weekday evenings. He had always done some school work at weekends, but the weekend hours lengthened. He estimated that he was working between 61 and 70 hours a week. Under the terms set out in the School Teachers' Pay and Conditions Document 1996 (and it was not suggested that the earlier version was materially different) a full-time teacher has one very specific obligation (that is, to be available for work on 195 days in any school year, 190 days being teaching days, for a total of 1,265 hours) and one much more general and open-ended obligation, in that para 40.7 provides that a full-time teacher shall

    ". . . work such additional hours as may be needed to enable him to discharge effectively his professional duties, including, in particular, the marking of pupils' work, the writing of reports on pupils and the preparation of lessons, teaching material and teaching programmes. The amount of time required for this purpose beyond the 1,265 hours referred to in para 40.3 and the times outside the 1,265 specified hours at which duties shall be performed shall not be defined by the employer but shall depend upon the work needed to discharge the teacher's duties".

    44. The judge's findings about Mr Barber's workload were as follows:

    "In total the claimant worked long hours per week. The precise number was not agreed between the parties but ranged from something in the order of 61 to 70 hours per week. These hours in themselves are perhaps not truly exceptional for a professional man but I accept that the week's work was arduous, hectic and perforce extended well beyond the normal working day and encroached to a material degree into the weekend".

    45. Mr Barber was not the only teacher who found school life stressful after the restructuring. Even before 1995, there were tensions between the school's senior management team (that is the head teacher and her two deputies) and other members of the staff. The judge recorded that Mr Barber was not the only teacher who gave evidence about the "autocratic and bullying style of leadership" of the head teacher, Mrs Hayward.

    46. Towards the end of 1995 Mr Barber was beginning to feel the strain. Your Lordships were urged by Mr Collender QC (for the County Council) to distinguish clearly between what Mr Barber himself thought or felt about his state of health at different times during the last year of his teaching career, and what he communicated about it to his employer (in the persons of the senior management team at the school, or officials of the County Council's Education Department based at Taunton or Street). I readily accept that that is a point of great importance to the disposal of this appeal. At the beginning of the autumn term in 1995 the County Council had no reason to think that there was any particular problem with Mr Barber. The documentary evidence shows that he was sometimes mildly criticised for being slow to make up his mind, and sometimes regarded as reluctant to cooperate in managing change. But these were minor matters. In general he was regarded as a mature, skilled and conscientious teacher with no problems other than those which he shared with all his hard-pressed colleagues. In March 1995 Mr Gill (one of the deputy heads) had written in a testimonial supporting Mr Barber's application for his new post,

    "He has a cheerful disposition and is well liked by colleagues from all areas within the school. His health, reliability and punctuality are good. I have no doubt that he will respond to the challenge of organising the [mathematical] area of experience and always give of his best".

    The school records of absence for medical reasons show that between 1992 and 1995 (inclusive) Mr Barber was absent for an average of about 4 school days a year, in each case for minor physical ailments.

    47. In his witness statement Mr Barber gave his own account of the onset of his troubles:

    "I first realised that I was not coping very well with all these changes and additional pressures in the last two months of 1995. I found that I was losing weight and I think that I looked drawn. I would wake up regularly in the night. I felt as if I was having out of body experiences where I would be looking at myself from outside the room I was sitting in. I believed I had completed tasks which I hadn't completed and I became confused. I felt that I was losing the ability to control my classes".

    Over Christmas close relatives of his expressed concern and urged him to look for another job or (after Mr Barber suggested this alternative) to take early retirement. But on returning to school in the new year he found himself too busy to investigate early retirement. During the spring term of 1996 he felt even worse. On 20 February, at one of his regular monthly meetings with Mr Gill (the deputy head in charge of the timetable) Mr Barber was recorded as speaking of "work overload". His general practitioner's medical records (not then known to the school) show that on 4 March and again on 4 April he consulted his doctor about "work stress". On each occasion there was a discussion with his doctor but no medication or referral.

    48. During the spring term attention focused on the prospect of an Ofsted inspection due in the autumn. This was a cause of general anxiety in the school and an official of the County Council's Education Department, Mrs Murray, visited the school to listen to the views of those teachers who were regarded as "middle management". Mr Barber and a colleague of his, Mr Johnson, had a long meeting with her. They expressed concern about the extra workload caused by the restructuring, and about other matters including school discipline.

    49. During the Easter holidays Mr Barber did obtain figures from County Hall for early retirement, either on the normal basis or on grounds of ill-health. The crucial period begins with the summer term of 1996. Mr Barber said in his witness statement:

    "I returned to school for the summer term on 7 April 1996. The Easter holidays had afforded me little relief due to the work I had had to carry out during that break. The pressures continued and eventually in May 1996 I saw my general practitioner who signed me off work for two weeks. He told me I was suffering from stress and depression. I recall being astounded. I was not surprised that the doctor said I was suffering from stress. I was perfectly aware that I was stressed and overworked. I was astounded that I had been diagnosed as suffering from depression".

    50. The medical records show a slightly different sequence of events. On 2 May Mr Barber took a day off work with "flu-like symptoms". On 8 May he saw his doctor whose notes recorded:

    "E:Stress

    S:Tried several strategies to handle his stress at work. However, is feeling worse. Sleeping disorders, awakes early, concentration problems, sooner irritated, shaking, hardly to relax.

    P: Had a long conversation. Is starting to [accept?] his stress. Decided to stop with working for next week. Offered him a beta blocker but he wanted to try without.

    Review 1/52"

    According to the school sickness records his first day off work with stress and depression was 13 May (a Monday) and he returned to work three weeks later, on Monday 3 June. He had sick notes (form MED 3) signed by his doctor on 11 May ("over stressed/depression") and 16 May ("stress"). The medical notes for 16 May record,

    "E:Stress

    S: Going much better. Went away to the coast for some days, with many benefits.

    P: Advised to stay away from his work for 1-2 weeks more.

    MED 3 issued for 1 week. Review Dr Gardiner 2/52".

    The notes for 30 May (with Dr Gardiner, a more senior partner in the practice) record:

    "E:[D] Work Stress

    S: Feeling vmb, re-structuring happening at work and keen to get back to influence it".

    On his return to work on 3 June, Mr Barber filled in the County Council's form of sickness declaration stating his trouble as "overstressed/depression". This form was signed by Mr Barber on 4 June and counter-signed on 5 June by Mrs Newton, one of the Deputy Heads.

    51. I have set out this documentary evidence in some detail because it records the first occasion on which the school's senior management team might have realised that something was going seriously wrong with Mr Barber. He had already spoken to Mr Gill about overwork. But here was a senior, hard-working and conscientious teacher missing three weeks in the middle of the summer term, despite the extra work which (as he must have known) his absence would place on the shoulders of his hard-working colleagues. It can hardly have escaped Mrs Hayward and her deputies, Mrs Newton and Mr Gill, that this was a disturbing development which called for inquiry.

    52. Mr Barber's account of his return to work was as follows:

    "On my return to work nothing much had changed. I had posted in my sick certificates to Mrs Newton, the Deputy Head at school who was responsible for staff absences. The certificates had clearly stated that I was suffering from overstress and depression. I was surprised that no one approached me to discuss my illness and what could be done to ease my burden at work. In fact, nothing had changed. If anything, there was a slight backlog created by the fact that only very urgent administrative tasks had been undertaken and my pigeonhole had 'exploded' in my absence. There was also some additional marking which had not been done".

    53. Mr Barber decided to take the initiative in arranging a meeting with the head teacher. A meeting took place at some date in June. There was a conflict of evidence as to what happened at the meeting, at which no one else was present. The judge heard oral evidence from Mr Barber and Mrs Hayward and his findings were as follows:

    "On his return he had an informal but confidential meeting with the Headmistress, Mrs Hayward. I accept the timing of this meeting as assessed by Mr Barber and I accept too that he raised with her his concerns that he was finding things difficult and was not coping very well with his workload. Mrs Hayward in her evidence to me could not remember this meeting but remembered a meeting which she thought had taken place at an earlier date when the issue of early retirement for the claimant had been discussed. I prefer the evidence of the claimant on this aspect of the matter. Here in my view was a senior member of the management team at East Bridgwater School being made aware positively of the stresses to which the claimant was subject and that he felt he was not coping. Set against a background where the claimant had just returned to work suffering from stress, this was a clear warning to the management that this man required assistance to carry out his duties even if because of budgetary constraint that help would have had to be limited in time.

    In the result Mrs Hayward treated the claimant unsympathetically, telling him as she indicated in evidence to me that all the staff were under stress".

 
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