[2008] CSOH 98



in the cause







Pursuer: Ellis Q.C.; Balfour + Manson LLP

Defenders: Miss Smart; Brechin Tindal Oatts

8 July 2008

[1] This is a "stress at work" case. Between May 1999 and January 2001, the pursuer was employed as a senior lecturer by the defenders. She went off work with symptoms that she attributes to her excessive workload. She has since been diagnosed as suffering from psychiatric injury, in respect of which she now claims damages from the defenders.

[2] Miss Smart, counsel for the defenders, sought dismissal of the action. She contended that it was irrelevant and lacking in specification in three respects. First, she maintained that on the pursuer's averments, the defenders could not have foreseen the risk of psychiatric harm to the pursuer. Secondly, she disputed any claim that there was a duty on the defenders to carry out a risk assessment. Thirdly, she challenged the pursuer's averments regarding the steps which the defenders should have taken in order to fulfil their duty of care.

[3] Senior counsel for the pursuer, Mr Ellis, invited me to remit the case for a proof before answer. He stated that it was not possible to hold at this stage that the case would necessarily fail at proof. In particular, he argued that having regard to the pleadings: (a) the risk of psychiatric damage to the pursuer was reasonably foreseeable; (b) no risk assessment case had in fact been pled; and (c) fair notice had been given to the defenders of the steps which they should have taken to satisfy their duty of care.

The Pursuer's Case on Record

[4] The facts upon which the pursuer relies are set out in Articles 4 and 5 of Condescendence. It is necessary to set them out in some detail.

[5] The pursuer was formerly employed by St Andrew's College, Glasgow. In November 1998 she attended a health screening organised by the College, which indicated that she was suffering from stress. On 1 April 1999 the College merged with the University of Glasgow. The pursuer became a senior lecturer within the University's Department of Curriculum Studies ("the Department"), which is part of the Faculty of Education ("the Faculty"). The Faculty provides courses for students intending to become primary and secondary school teachers. As part of their teacher training, they require appropriate school placements.

[6] In terms of her contract of employment, the pursuer was required to work 321/2 hours per week. Her line managers were Dr Kwiatowski, Mr McCarney and Professor McGettrick. They were respectively the Head of the Department and the Associate Dean and Dean of the Faculty. Apart from her teaching duties, the pursuer also held the post of Co-ordinator of School Experience and Partnerships. That role involved liaising with schools, students and staff tutors. The Faculty had three separate co-ordinator posts: (a) for International Placement; (b) for the Postgraduate Secondary Course; and (c) for the Postgraduate Primary Course. After the merger, those posts remained vacant and the pursuer undertook a substantial proportion of their work.

[7] The pursuer frequently communicated with her line managers about the problems she was experiencing. In June 1999, she told Mr McCarney that her work overload was affecting her health and causing her to be unable to sleep. On 10 September 1999, Professor McGettrick expressed concern that she had too much work. During the autumn of 1999, the pursuer requested additional staff to assist her. On 6 November 1999, Dr Kwiatkowski provided a reference for the pursuer in which he mentioned her "very heavy administrative commitment" and "very demanding role".

[8] In December 1999 a paper was circulated to staff, which highlighted the heavy workload of those employed at the former St Andrews' campus. The issue was raised at a committee meeting the next day. It was illustrated by the example of the pursuer sending work-related e-mails in the early hours of the morning and at weekends. On 22 March 2000, Professor McGettrick recommended that the pursuer's workload should be reduced by appointing an administrator.

[9] It was acknowledged at Faculty Meetings on 19 April, 16 May and 23 May 2000, that conditions of overwork were causing stress and illness within staff. In May 2000, the postgraduate primary co-ordinator resigned. She had only been in post seven months. She cited work overload and stress as her reasons. At a staff meeting on 23 May 2000, the pursuer explained that the defenders were relying on staff goodwill to cover vacant co-ordinator posts, which was causing stress. In a memorandum the next day, Mr McCarney said that support staff were working at full capacity and that there was no "slack in the system". He also said that the pursuer's planned reduction of time to carry out her administrative duties could only happen if an additional post was created.

[10] On 14 June 2000, the pursuer tendered her resignation. She indicated that the basis for doing so was her excessive workload, which forced her at times to work in excess of 100 hours per week. She was persuaded to withdraw her resignation on the basis that assistance with her workload would be found. She was frequently assured that steps would be taken to remedy the situation.

[11] The pursuer was told that University teaching staff were expected to undertake research work. At the urging of her line managers, she agreed to register for an M.Phil degree in summer 2000. She proceeded on assurances that her administrative workload would be reduced. The work for the degree was normally allocated the time of one half of a full time post. By e-mail dated 28 June 2000, the pursuer told Dr Kwiatowski that she could not do the work of a single co-ordinator position and the research for an M.Phil degree and "remain intact". At that date, she was in fact undertaking the workload of several co-ordinators, as well as carrying out teaching and research responsibilities. On 30 June 2000, the pursuer sent an e-mail to Dr Kwiatowski, which she copied to Professor McGettrick. She stated that it would be impossible for her to undertake the M.Phil and continue with her co-ordinator roles.

[12] In August 2000 the pursuer told Mr McCarney that her workload was having an effect on her health. She said that she was suffering from projectile vomiting, stress symptoms and shingles. In early September 2000 she also told Professor McGettrick that her job was making her unwell. She mentioned that she was not sleeping, that she suffered from pains and that she was exhausted. She told him that her doctor thought that the shingles was stress related, which he accepted.

[13] At a Faculty meeting on 9 October 2000, the pursuer reported her serious concerns about the lack of relevant co-ordinators. The 'increasing health issues' relating to the staff workload were noted. In an e-mail to Mr McCarney dated 23 October 2000, the pursuer expressed alarm at the amount of hours that she continued to have to work and stated that it was a "genuine call for help".

[14] By e-mail to Dr Kwiatowski dated 16 November 2000, the pursuer stated that she was undertaking the work of 3.49 full time posts and she drew attention to the deleterious effects on her health. She referred to herself as "sinking beneath the waves". On the same day, she received an e-mail from Professor McGettrick in which he recognised the volume of work that her job entailed. At a meeting on 22 November 2000, the pursuer was tearful. She informed Dr Kwiatowski that she was feeling ill due to stress. She stated that she was not sleeping well, was suffering from chest pains and had recently crashed her car. The following day she was again tearful when she met Professor McGettrick. She informed him that she was overworked and that it was having a negative effect upon her health.

[15] At the end of November, she again met Professor McGettrick. She drew his attention to her extreme work overload and the deleterious effects it was having upon her health. He acknowledged the volume of her work on 27 November 2000. On 30 November 2000, Dr Kwiatowski sent a memorandum to all academic staff in the Department, proposing that data be collated to assess the range of work covered by employees. He acknowledged that the previous failure to do so had caused problems for the pursuer.

[16] After the pursuer ceased work on 31 January 2001, she was diagnosed as suffering from a Moderate Depressive Episode, from Anxiety Disorder and from Adjustment Disorder.

[17] The pursuer refers to the extent of her workload at various points in the pleadings. It is averred that she undertook the work normally regarded as appropriate for much more than one person and continually in excess of that appropriate to one and a half full-time employees. By Autumn 2000, her work had built up to a level of about three and a half full-time employees. She worked long hours under pressure to fulfil the demands placed upon her.

[18] The pursuer also avers that no effective steps were taken to reduce her workload. However, in response to the defenders' averments, she admits that they did provide clerical staff to assist her with administrative tasks. Two employees were provided in June 2000. In respect of a further member of staff appointed in August 2000, the pursuer states that she was an apprentice who "did not provide effective administrative support." She also avers that "it was not possible for [her] to mitigate her workload by delegating. There were no available members of staff with the ability to take on further work."

The Legal Framework

[19] In the course of the debate, I was referred to three main cases in which the principles that govern this area of law are to be found: Hatton v Sutherland [2002] ICR 613; Barber v Somerset County Council [2004] 1 WLR 1089; and Hartman v South Essex NHS Trust [2005] ICR 782.

[20] In Hatton, the Court of Appeal considered four conjoined appeals relating to stress at work. The judgment of the court was handed down by Hale LJ. After a detailed discussion of the relevant law, she formulated the following propositions:

(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do ... The ordinary principles of employer's liability apply ...

(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable ... this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) ...

(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large ... An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability ...

(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health ...

(5) Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee ... Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b) Signs from the employee of impending harm to health ... Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers ...

(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it ...

(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk ...

(9) The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties ...

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

(11) An employer who offers a confidential advice service ... is unlikely to be found in breach of duty ...

(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job ...

(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care ...

(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm ...

(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing...

(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event

[21] One of the four individual cases considered by the Court of Appeal in Hatton was the subject of a further appeal to the House of Lords. The principal speech in that case, Barber, was delivered by Lord Walker of Gestingthorpe. He described the general part of Hale LJ's judgment as "a valuable contribution to the development of the law" (para. 63). He also advised that contrasting the facts of one case with that of others "is generally unprofitable" (para. 69).

[22] Hartman is the third case in the triptych of authorities. Scott Baker LJ, delivering the judgment of the Court of Appeal, stated that subsequent courts had found it difficult to apply the guidelines in Hatton and Barber. He said that the propositions provide "useful signposts for judges faced with the, sometimes complex, facts of stress at work cases" (para. 5). However, he emphasised that:

"... what was said in Hatton 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 they need care in their application to the particular facts under consideration." (para 16).

A. Foreseeability

[23] Counsel for the defenders contended that no risk of impending psychiatric harm to her was brought to their attention. On the facts upon which the pursuer relied, a reasonable employer would only infer that she had found it difficult to adapt to changed working conditions. Complaints of an excessive workload and of stress were not a sufficient basis to found liability (Sayers v Cambridgeshire County Council [2003] IRLR 29). Something more was required to put the defenders on notice. The position would have been different, for example, if the pursuer had been absent from work as a result of stress prior to January 2001. Similarly, it would be significant if the defenders had received a communication from her doctor, stating that she was at risk of psychiatric harm because of her working conditions.

[24] The defenders have a large workforce, with many employees who make complaints. It is very difficult for them to predict whether a particular employee is liable to succumb to psychiatric injury. In this case, the indications were not obvious. The defenders could not have reasonably foreseen that if the pursuer continued to work under the same conditions, she would suffer psychiatric injury.

[25] Counsel noted that although liability was established in Barber, the case was described as "fairly close to the borderline" (per Lord Walker at para. 67). She argued that the present case fell on the other side of the line. She referred to Walker v Northumberland County Council [1995] ICR 702; Rorrison v West Lothian Council 2000 SCLR 245; Stevenson v East Dunbartonshire Council 2003 SLT 97; Taplin v Fife Council 2003 SLT 653; and Chapman v Lord Advocate 2006 SLT 186.

[26] Miss Smart also maintained that in the context of foreseeability, there was a clear distinction between physical and psychiatric injury. She acknowledged that Page v Smith [1996] AC 155 took the contrary approach, but she said that it had been criticised in Rothwell v Chemical & Insulating Co Ltd [2007] ICR 1745 and should not be followed in stress at work cases.

[27] Mr Ellis began by stating that a case should only be dismissed on grounds of relevancy and specification if it would necessarily fail at proof. That approach was particularly apt in borderline cases. In this connection, he referred to several well-known authorities (Jamieson v Jamieson 1953 SC (HL) 44, 50 per Lord Normand; McLeod v Glasgow Western Hospitals 1954 SC 453, 465 per Lord President Cooper; and Miller v SSEB 1958 SC (HL) 20, 33 per Lord Keith).

[28] In principle, no distinction should be drawn between physical and psychiatric injury (Page v Smith, at 197E per Lord Lloyd of Berwick; Clerk and Lindsell on Torts 19th ed. page 128 para. 2, and Stevenson para. 5). However, he said that the distinction did not matter in this case, because (a) the averments were enough to instruct a strong case of foreseeability of psychiatric harm; and (b) the pursuer had sustained physical harm.

[29] Mr Ellis submitted that the critical feature in this case was the "enormous" workload imposed upon the pursuer. Coupled with her communications to her line managers, the defenders should have been aware that she was working well beyond her normal capacity with the consequent of risk of harm to her. He said that a claim could succeed even where there was no reference to psychiatric injury on the part of the employee (Daw v Intel Corpn (UK) Ltd [2007] ICR 1318). He also referred to Fletcher v Argyll & Bute Council 2007 SLT 104; and Hiles v South Gloucestershire NHS Trust [2006] EWHC 3418.

[30] In my opinion, the key question on this branch of the defenders' argument can be shortly stated. Should the University have reasonably foreseen that the pursuer was likely to suffer psychiatric harm? The answer depends upon an examination of "the inter-relationship between the particular characteristics of the employee concerned and the particular demands which the employer casts upon him" (Hatton, para. 25).

[31] The reasonable employer is entitled to assume that the employee can cope with the normal pressures of the job (Hatton, para. 29). While he is not equipped to make a specialist diagnosis, he must be alert to clear problems with a particular employee. The test is whether the indications are plain enough for him to realise that he should do something about it (Hatton para. 31). However, the application of that test to the individual circumstances of a particular case can be very difficult. The signs must be such that the reasonable employer would identify that an individual employee is at risk of going over the edge, from stress to injury to health (Hatton para. 31). That should be assessed having regard to (a) the nature and extent of the work being done by the pursuer; and (b) the signs coming from her.

[32] I agree with counsel for the pursuer that the sheer volume of work may on its own present a risk to mental health. Everyone has their breaking point. The pursuer avers that she was at times doing the work of three and half employees. Occasionally, she worked more than one hundred hours per week. That is materially higher than in other cases. For example in Barber, the claimant was working between 61 to 70 hours per week. In Sayers, the claimant worked between 50 and 60 hours per week. In addition, the pursuer found the work itself - with its teaching, administrative and research elements - intellectually demanding. Her reactions over the period testify to that response. In my view a reasonable employer might well consider that the nature and extent of the work being done by the pursuer did put her at risk of psychiatric harm. At the least, it raised the index of suspicion.

[33] It is also material to consider the position of other members of staff. There were complaints of stress at Faculty meetings. In addition, another co-ordinator resigned in May 2000, citing work overload and stress as her reasons.

[34] So far as the signs coming from the pursuer herself are concerned, there are in my view a number of significant features about her communications with the defenders: (i) they were frequent and extended over the whole course of her employment; (ii) they were made to all three line managers and also raised at staff meetings; (iii) she said that her excessive workload was having an adverse effect upon her health; (iv) specifically, she mentioned lack of sleep, vomiting, chest pains and stress-related shingles; (v) twice she was tearful when complaining of overwork; (vi) she used language suggestive of mental health problems, such as not being able to "remain intact", making a "genuine call for help", and "sinking beneath the waves"; and (vi) matters were sufficiently serious for her to hand in her resignation in June 2000.

[35] Looking at these signs, in my view they could be regarded as a plea for assistance. They suggest that too much torque was being applied to the pursuer's mental state. A reasonable employer might well have thought that if she continued with her current working conditions, she was at real risk of psychiatric harm. To some extent, the appreciation of that risk is confirmed by the defenders' own communications and conduct. Within six months of the merger, Professor McGettrick had acknowledged that the pursuer had too much work. By March 2000, he had recommended the appointment of an administrator to assist her. The pursuer was persuaded to withdraw her resignation on the basis that she would receive assistance with her workload. In the summer of 2000 the defenders did in fact provide three members of staff to assist her with administrative tasks. In my view, that indicates that the defenders were alive to the situation. They recognised the need to alleviate her working conditions.

[36] Accordingly, I regard each of the factors in isolation as material, that is (a) the nature and extent of the work being done by the pursuer; and (b) the signs coming from her. My opinion is strengthened when I consider the factors together. It follows that I do not uphold the challenge on this branch of the case. In my view, it is not possible to state that her claim will necessarily fail at proof on this ground. All the matters raised by both parties can properly be tested in evidence. In the light of that decision, I do not require to decide whether a distinction falls to be drawn between physical and psychiatric injury in this context.

B. Risk Assessment

[37] On this branch of the case, there is a direct conflict between the parties. Miss Smart contended that the pursuer had pled a risk assessment case. Mr Ellis said that no such case was incorporated on record. The averments under challenge are to be found in articles 6 and 7 of condescendence.

[38] Article 6 refers to a 1999 document about workplace stress published by a Glasgow University Working Group and continues:

"... there were no laws specifically covering risks from work related stress; but that there was an acceptance that an employer's general duties under the Health and Safety at Work Act 1974 included a need to ensure employees' mental health. It noted that risk assessments under the Management of Health and Safety at Work Regulations 1999 must cover risks to mental health. In a further paper prepared for the defenders by the 'Health and Wellbeing Group' dated January 2000 and considered along with the foregoing paper at a Staff Committee on 26 January 2000 the approach in the University and Colleges Employers Association Report was recommended. Further in that context it noted that 'responsibility for occupational workplace ill health is not longer perceived as lying solely with the individual'. It also noted the Association of University Teachers' survey above averred. Further, since 1993 it has been the duty of employers, in terms of the Management of Health and Safety at Work Regulations 1992 to carry out an assessment of inter alia the risks to health and safety of their employees to which they are exposed whilst at work. The risks to which employees are exposed while at work include risks of psychiatric injury arising from occupational stress".

[38] Article 7 states:

"The defenders were under a duty to consider the risk to the health of the pursuer including her mental health arising from the duties expected of her in the course of her employment. A reasonable consideration of the risks to her health would have been carried out by a reasonable employer after the merger in 1999 with the imposition of further duties in the summer of 2000 and on each occasion on which the pursuer's workload or the effects thereof were brought to their attention. Any such reasonable consideration of the risks after June 1999 would have identified the risk to the pursuer's health, including mental health arising from occupational stress and steps would have been taken within a reasonable time (at the most a few weeks) from June 1999 onwards and from in or about the summer of June 2000 urgently by any reasonable employer to provide relief and assistance with her duties and further duties would not have been imposed on her without such relief or assistance".

[39] Miss Smart's submission was that there is no free-standing duty at common law to carry out a risk assessment, particularly not one directed at the risk to mental health. Senior counsel for the pursuer did not take issue with that proposition. Instead, he argued that on a proper construction, the pursuer was simply pleading that the defenders had a duty to consider the risk to her mental health. He said that the duty to consider the safety of an employee was an orthodox one (General Cleaning Contractors v Christmas [1953] A.C. 180, per Lord Oaksey at page 189 and per Lord Reid at pages 193-4). Here, the defenders had a duty to engage in "positive thought about the pursuer" (Barber at para. 65). They had to stop and think (i) because of the information which they had about her; and (ii) because they were more informed than the average employer and ought to have been aware that there were inherent risks and increased psychiatric morbidity associated with stress.

[40] I agree with counsel for the pursuer that the Article 6 averments concern the issue of foreseeability. They outline the knowledge which the defenders possessed in considering the risks to her mental health. Accordingly, in my view they are a relevant part of the pursuer's case.

[41] I am also narrowly persuaded that the Article 7 averments reflect the general duty imposed upon employers to apply their minds to a foreseeable risk of injury to their employees' mental health. In the light of the factual circumstances pled by the pursuer, a reasonable employer might be required to "think harder" about her (Hatton para. 29). Standing Mr Ellis' disclaimer that no formal risk assessment case is directed against the defenders, in my view these averments are relevant to go to proof.

[42] Miss Smart made a subsidiary submission that the averments were fundamentally lacking in specification. She said that a number of matters were not clear on the face of the pursuer's pleadings. Who should have carried out any risk assessment? What would it have disclosed? To whom would the results have been relayed? What precisely should have been done about it? As I have decided that the defenders do not face a risk assessment case, this challenge falls away.

C. The Defenders' Duties of Care

[43] The pursuer formulates the duties of care owed by the defenders as follows:

[It was the defenders' duty in the exercise of reasonable care] "to have taken urgent steps within a reasonable time from June 1999 onwards (at the most a few weeks) and urgently from in or about the summer of 2000 onwards to provide relief or assistance for the pursuer in the performance of her duties and not to have imposed additional duties without providing such relief and assistance. Any reasonable employer would in any event have been aware in the circumstances averred by the end of August 2000 at the latest and at all subsequent times (i) given the extreme workload of the pursuer; (ii) the consistent failure to provide assistance (despite assurances to the contrary); (iii) the pursuer's warnings of the effects upon her health; that the pursuer's health was put at risk because of the amount of imposed upon her. Any reasonable employer would have known or ought to have known that in the circumstances said risks included a risk of psychiatric illness. In the circumstances, the defenders were under a duty in the exercise of reasonable care to reduce the pursuer's workload either by relieving her of a material part of her duties or providing reasonable assistance in the performance thereof by the end of August 2000 at the latest and that duty was incumbent upon them at all subsequent times until the pursuer went absent from work on 31 January 2001. It was in any event their duty to take urgent steps to remove the pursuer from the circumstances which were causing damage to her health."

[44] Miss Smart contended that these averments did not specify the actual steps which the defenders should have taken. She founded on the fact that three employees were provided to assist the pursuer in her administrative work. The pursuer does not criticise the qualifications of the two individuals appointed in June 2000. In respect of the apprentice appointed in August 2000, all that is stated is that she "did not provide effective administrative support." Accordingly, there is no guide at all regarding the assistance which the pursuer claims should have been provided. Miss Smart contrasted the facts with those in two other cases. In Barber, no additional assistance was provided. In Walker, additional assistance was provided initially, but then withdrawn. She said that this was not a technical objection. The defenders have no fair notice regarding the level and extent of help which would have prevented the pursuer's psychiatric disorder. If the defenders lead evidence from an expert psychiatrist or an expert in occupational health, they will have to testify whether assistance of a certain type for a certain duration would have alleviated or obviated the pursuer's problem. It is important for them to know the pursuer's position.

[45] Counsel submitted that there must be evidence before the court regarding the steps necessary, what effect those steps would have had and how they would have prevented the harm (Barber per Lord Rodger at paras 19 to 35). It would not be difficult for the pursuer to tie herself to a particular position. She could, for example, have said that two and a half further full-time posts ought to have been appointed (see Hartman para. 64).

[46] Mr Ellis said that because there was such a substantial overload of work in this case, the precaution that the reasonable employer required to take was a simple one. It involved reducing the workload. Further, it was not up to the pursuer to tell the defenders how to achieve that. From her perspective, it did not matter which of her duties were reduced. It could be administration, teaching, or research. The situation was very different from that in Barber, where the employee was only doing his normal job and that proved too much. Counsel said that the pleadings did give fair notice of what the pursuer claimed should have been achieved. Article 4 provided the substratum of the steps to be taken. Mr Ellis said that the pursuer did not intend to lead evidence positively proving how the duty had to be fulfilled, nor was she obliged to do so. It was up to the defenders to demonstrate how the duties could be restricted. In the management of their operations, there were many permutations. They simply had to assess it from the point of view of the reasonable employer.

[47] A specific step was for the defenders to materially reduce her working hours. The defenders, he said, were perfectly able to prepare for that case at proof. They were not restricted in the evidence they could lead to refute the pursuer's position. Mr Ellis was not prepared to specify the precise reduction in terms of hours. Under a previous version of the pleadings, the pursuer had run into difficulty by adopting that approach. The defenders had then argued that there was no duty of care to secure that a finite number of hours were worked by the pursuer. He said that similar considerations applied to specifying a particular number of extra employees. In summary, he contended that it was not unfair to require the defenders to go to proof on the basis of the pleadings as they stand.

[48] I accept the general principle that averments should not descend into too much detail (Taplin para. 20). However, I also recognise that if the risk of psychiatric harm is held to be foreseeable, it is necessary to consider with care the steps which the employer ought to have taken to prevent such harm. This is evident from propositions (8) to (14) of Hatton. In the general discussion, Hale LJ amplified this point:

"But in every case it is necessary to consider what the employer not only could but should have done. ... Many steps might be suggested: giving the employee a sabbatical; transferring him to other work; redistributing the work; giving him some extra help for a while; arranging treatment or counselling; providing buddying or mentoring schemes to encourage confidence; and much more. But in all of these suggestions it will be necessary to consider how reasonable it is to expect the employer to do this, either in general or in particular: the size and scope of its operation will be relevant to this, as will its resources, whether in the public or private sector, and the other demands placed upon it. Among those other demands are the interests of other employees in the workplace. It may not be reasonable to expect the employer to rearrange the work for the sake of one employee in a way which prejudices the others (Hatton para 33).

[49] Lord Rodger indicated that the matter should be approached in two stages:

"The employer's duty is to take reasonable care to avoid injuring 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." (Barber para. 18)

[50] In this case, it is worth noting that the defenders placed calls upon the pursuer in Answer 7 seeking information on the steps which they ought to have taken. The pursuer's response is as follows:

"With reference to the defenders' calls as elsewhere averred in greater detail by June 1999 the pursuer was grossly overworked, the defenders were aware of that. No reasonable assistance or relief was provided by the defenders despite assurances to the contrary. The pursuer was complaining of the effects of her overwork on her health."

[51] In my view, neither that response nor the preceding averments in Article 7 go far enough to identify the steps which the defenders should have taken. The pursuer has convened the defenders in court to face a case that they should have reduced her workload by the end of August 2000 at the latest. That was to be achieved by "either relieving her of a material part of her duties or providing reasonable assistance in the performance thereof". Nowhere, however, does the pursuer spell out what is meant by "relief" and "assistance". As the defenders did provide three employees to assist her with the administrative part of her post, it appears to me that the pursuer requires to go much further in specifying the steps which ought to have been taken and why they would have made a difference.

[52] If the case was remitted to proof, at the close of the pursuer's case there would be no evidence on the specific steps which either the defenders, or other reasonable employers, could and should have adopted in respect of the pursuer (Hatton para. 33). That is because Mr Ellis stated that he did not intend to lead evidence positively proving how the duty had to be fulfilled. But even if he sought to lead such evidence, he would in my view be barred from doing so, because there was no proper foundation in the pleadings. Accordingly, in my view the case would necessarily fail.

[53] It appeared to me that the approach adopted by Mr Ellis involved an inversion of the onus of proof. It is not for the defenders to demonstrate how the pursuer's duties could be restricted. Rather, it is incumbent upon the pursuer to aver the specific steps which would have prevented the harm occurring.

[54] It follows from the above discussion that I hold that the defenders have succeeded in respect of the third ground of challenge.


[54] I shall sustain the defenders' first plea-in-law and dismiss the action.