Attendance Management

by Kate Russell

Court of Appeal guidance

Below are some key points from the conjoined Court of Appeal Judgment in Barber v Somerset County Council, Chairman of the Governors of St Thomas Becket RC High School v Hatton and other cases in 2002.

  1. 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.
  2. 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. Factors that are likely to be relevant in considering whether or not the employer is liable include the nature and extent of the work done by the employee and signs from the employee of impending harm to health.
    To trigger a duty to take steps, the indications of impending harm to health must be plain enough for any reasonable employer to realise that he should do something about it. The employer is only in breach of the duty of care if he fails to take reasonable steps, bearing in mind the magnitude of the risk, the gravity of any harm, the costs and practicability of preventing it and the justifications for running the risk.
  3. The size and scope of the employer’s operation are relevant in deciding what is reasonable.
  4. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found to be in breach of duty.
  5. If the only reasonable step to alleviate the stress is 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. In all cases, 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. Where the harm suffered has more than one cause, the employer should only pay that proportion of the harm suffered which is attributable to his wrongdoing.