The recent UK case of MacLennon v Hartford Europe Group Ltd [2012] EWHC 346 (QBD) gives some helpful guidance on the response required from an employer whose employees work long hours. In this case the employee in question worked 55-60 hours per week, including carrying out some work at weekends and in the evenings. The Court found that this fact alone did not establish that it was reasonably foreseeable that the employee would suffer a breakdown in health. In making its finding, the High Court also had regard to the fact there were compensatory rest periods in place for weekend work and that the employee was afforded generous annual leave entitlements. The court held that long hours of themselves do not give rise to foreseeability of a breakdown in health.

There have also been some UK cases which have suggested that an employee who voluntarily assumed the risks associated with their jobs cannot rely on the stressful nature of the job or the long working hours in seeking to establish liability for a psychiatric injury suffered due to over work. In this regard, consideration should be given to the contractual agreement between the parties, in particular the obligations which the employee agreed to undertake in deciding whether the employer has complied with its duty to take reasonable care to avoid psychological injury. If the contractual agreement does not reflect the actual working position, and the employee has raised complaints in relation to this working position, the employer may be at risk of being found liable for the injury resulting from these excessive working requirements.

TEST FOR PSYCHOLOGICAL INJURY

Caselaw has established that the test for the consideration of liability in assessing psychological workplace injury consists of three questions; being:
(1) Has the plaintiff suffered an injury to their health as opposed to ordinary occupational stress?
(2) If so, was that injury attributable to the workplace?
(3) If so, was the harm suffered by the particular employee reasonably foreseeable in all the circumstances.