Whilst purporting to apply the guidance given in Hatton v Sutherland, the Court's application of that guidance to the facts before them arguably indicated that the requirements of reasonable foreseeability, breach and causation may not be as difficult for claimants to satisfy as a strict reading of Hatton may have suggested.
- In relation to reasonable foreseeability, it was sufficient that the employee had previously complained about the stress of her job, had been coming into work late on a regular basis, and had told her line manager that she did not know how long she could keep going before she would become ill;
- In relation to breach of duty, O2 ought to have sent its employee home pending urgent investigation by occupational health, even in circumstances where she had not been signed off sick by her GP. The Court held that the mere suggestion of confidential counselling was not an adequate response to a situation where an employee was complaining of severe stress;
- In relation to causation, the Court inferred a sufficient causal connection between the breach and the illness, finding the series of failings by O2 to address her problems had materially contributed to her illness.
- In relation to apportionment, the Court indicated that there should be no across the board percentage reduction to damages for the contribution to the illness made by non-tortious causes, doubting the correctness of Hale LJ’s remarks in Hatton on this point.