Barber v Somerset City Council 2004 – Tort Essay
Question: In its decision in Barber v Somerset City Council [(2004) UKHL 13], the House of Lords failed to take adequate account of the realities of modern work and of the changes in the typical work place over the
last 30 years. Discuss making reference to both majority and minority judgment.
In Barber v. Somerset County Council , the general principle applied is that a reasonable and prudent employer should take positive thoughts for the safety of its workers in the light of what it knew or ought to have known. Some would think that this decision has set a very demanding standard of care for employers. This essay shall seek to examine the decision in light of the modern working conditions as it is said that the House of Lords failed to take adequate account of the realities of modern work and of the changes over the last 30 years.
The decision of House of Lords to apply Stokes v Guest, Kean and Nettlefold Ltd which is a 30 years old case does not mean that they did not progress and disregard realities. By requiring a higher standard by the senior management team of Eastbridge Water Community School, it will give alert to other employers to be more aware of employee’s workload and their ability to cope with stress. It actually recognises that stress has been a major issue in working places these days. This will provide a better working condition for employees. In Walker v Northumberland County Council it was held that Where it was reasonably foreseeable to an employer that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, the employer was under a duty of care, as part of the duty to provide a safe system of work, not to cause the employee psychiatric damage by reason of the volume or character of the work which the employee was required to perform. Applying this to Barber v Somerset City Council, it is quite foreseeable that Mr. Barber will break down one day after his continuous sick leave indicating that he’s suffering from stress and depression. If an employer fails to take any action to help out an employee after receiving indication that he/she might be overworked, the employer cannot be categorised as a good employer. This attitude should not be encouraged. Barber gives the other employers a warning to make sure that they are well informed of their employee’s ability to cope with immense stress.
The duty of care of an employer to an employee is such that the duty of care owed by an employer not to expose an employee to unnecessary risk of injury includes both physical and psychiatric damage. Therefore, as long as it can be established that Mr. Barber’s workload results in his mental injury, the employer i.e. City Council can be held liable for breaching this duty of care. It can be argued that the situation was simple and direct. It was obvious that the employer was in breach of duty of care thus liable in tort. The working situation was not efficiently planned resulting in certain employees enduring more pressure than others. It is crucial that this decision will provide an alert and a guideline to employers. As our society progress, work has become more competitive. With such high living cost, it is crucial for everyone to earn as much as possible. They tend to ignore their health especially mental health. Employers should be aware of such situation thus not exerting more pressure on their workers. In Barber, the issue whether it is an employer’s duty to provide assistant to an overworked employee and how can the period of assistance provided be determined was discussed. However, the period was not determined, but according to the judge, assistant should be provided until the employee is fit to cope with his work again. This at least gives employers a possible choice when they face with such situation.
Nonetheless, although it seems morally right to require employers to provide for employees, this might be too heavy a burden for employers. As the labour market becomes more competitive, it is more likely that individual workers would want to assume more responsibility. Some would argue that it is not fair for an employer to determine how much responsibilities can an employee hold. According to Lord Rodger of Earlsferry in Barber, in 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 to continue to employ him to perform that job. Devlin LJ in Withers v Perry Chain Co Ltd was quoted by Lord Rodger, ‘the employee is free to decide for herself what risks she will run. I agree with Sellers LJ 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.’ Therefore, in this modern world, employers should not be subject to any limitation as to what should they do to prevent their employers from suffering mental illness as a result of stress from work. The court should recognise that they do have their own responsibilities as well therefore should not force them to provide too much for the workers.
Hale LJ was quoted by Lord Scott in paragraph 6 of his judgement in Barber: ‘unless he knows of some particular problem or vulnerability, an employer is usually entitiled to assume that his employee is up to the normal pressures of the job…. An employee who returns to work after a period of sickness without making further disclosure or explanation to his employer is usually implying that he believes himself fit to return to work which was doing before.’ It is of common sense that an employer will not know if he was not informed. Judging from the heavy workload of everyone including the employer himself, it would be very unfair to require him/her to still take positive action to examine into every suspicious situation. Moreover, in this case, Mr. Barber has problem communicating the problem he faced even to his general practitioner. The atmosphere in offices is no longer like the olden days where workers have time to take a rest for tea and have short chats now and then. It is usually so busy that they would not even talk to each other while they were in offices. The test set out by Hale LJ was accepted by the Lordships. In this test, it is said that the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise and take action. Therefore it is unrealistic to set too high a standard of care for the employers.
It should be noted that the Lordships basically agree with Hale LJ approach in assessing how liable the City Council are as the employer of Mr. Barber. However, it is the facts of the case assumed by the majority and minority which differs. The majority assumed that Mr. Barber’s meeting with all the 3 members of the senior management team(SMT) has been effective in giving them the message that he was under such immense pressure that he could not bear it anymore. The dissenting judgements felt that his action was not obvious enough. The real world is complicated. It can be said that the SMT has been really careless to not notice; but everyone in the school was under the same pressure. There is possibility that the House of Lord wanted Barber to serve as a reminder to all the other employers. It would be quite inaccurate to accuse them that they failed to take adequate account of the realities and to adapt to the change in working place. It is because they were aware that they sought to provide more protection for the working class. While they appear to be quite conservative, it shows that they actually took into account the growing pressure suffered by the working class.