Buddy says: it is a good idea to have a counseling service available to offer to employees, but whether that service is enough to discharge an employer's liability will turn on the facts of each individual case. Therefore, it is not safe to assume that just by having a counselling service available you will automatically be able to defend work related stress claims.

Employer information:Employers are under a common law duty to take reasonable care for the health and safety of their employees in the workplace. To succeed in a claim, an employee will have to show the following:

• That the employer has breached the duty of care owed to the employee;
• That it was reasonably foreseeable that an injury would result from the breach; and
• That a loss in the form of personal injury has occurred.

In the case of Daw v Intel Corporation UK Limited Mrs Daw suffered a breakdown in June 2001, and subsequently suffered from longstanding and chronic depression. She brought a claim for personal injury against her employer on the basis that, by the end of December 2000 or the beginning of January 2001, her employer ought reasonably to have foreseen that there was a real risk of such a breakdown and should have acted to improve her situation. Mrs Daw alleged that the stress experienced by her was the result of confused reporting lines and priorities between the demands made on her by different managers and insufficient assistance. She alleged that her history of postnatal depression was relevant in that it made her more vulnerable to a breakdown and her managers knew of it and should therefore have taken it into account.

The Court, following the principles set down in Sutherland v Hatton [2002], found that the stress Mrs Daw experienced at work caused her breakdown. The Court of Appeal in Sutherland had commented that an employer which offers confidential help (for example in the form of counselling) to employees suffering stress is unlikely to be found in breach of its duty. In Daw, the Court considered the counselling services on offer to Mrs Daw, and commented that whether in any case the counselling service provided will be enough to discharge the reasonable employer's duty must depend on the facts of each case. In this case they held that a short term counselling service could not have done anything to reduce that risk or help Mrs Daw cope with it, as it could not reduce her workload. The most it could have done was to advise her to see her doctor. Therefore on the facts of this case the court held that the service provided did not sufficiently discharge the defendant's duty.