Scottish Court of Session Decisions

Pleadings

"By 27^th September 2000 the behaviour of Class S3 during their Drama Course studies was of such a nature that it warranted a note during a Department Meeting of the Expressive Arts Department (hereinafter referred to as "the Department") at the school. Concerns were noted about their behaviour. The class had first come together in June 2000, in a group of 19 boys and 1 girl. A supply teacher had taught them at that time. She had experienced discipline problems with the class. She had imposed sanctions on the class. The matter of indiscipline had been reported to the Principal Teacher, Mrs Bell, before the pursuer had been assigned to teach them. It was recognised that a strategy was required to address their behaviour. On 11^th October 2000 it was noted that the behaviour of some of the pupils in Class S3 had not improved despite sanctions having already been put in place. Sanctions had followed recognised teaching methods of written exercises, detention, changing the combination of the class as they undertook work and allocating elected tasks to specific pupils. The pursuer identified the perpetrators. She reported the perpetrators to the Principal Teacher. The Principal Teacher in turn reported the matter of indiscipline to the Assistant Head Teacher because the recognised methods of sanctions were proving ineffective in restoring discipline...."

"She wrote to the defenders intimating that the demands of a full time teaching post balanced with having three young children at home was leaving her stressed and exhausted. She intimated a concern about her own personal well being. On 8^th January 2001 the pursuer was offered the post of teacher of RE/English at the school on a part time permanent basis."

"On 14^th February 2001 it was noted at the Department meeting that S3 Core Drama group were still giving cause for concern regarding their behaviour. On 7^th March 2001 it was noted at the Department meeting that two pupils had to be extracted from S3 Core Drama group because of their behaviour. Other disruptive pupils were noted as being present in the class. The pursuer had continually raised her concerns about indiscipline and the ineffectiveness of sanctions at departmental meetings attended by her. She had informed Mr Harrison, Assisted Head Teacher of her problems."

"In or about September 2000 the pursuer returned to teaching after Maternity Leave. The class of S3 core drama were disruptive and the pursuer experienced discipline problems with them. There were four principal perpetrators of the indiscipline. The pursuer noted the problems she experienced in a diary and handed that to the Principal Teacher. No action was taken by the Principal Teacher on the reported problems. In or about October 2000 Mrs Bell, Principal Teacher of Drama, Arts and Music found the pursuer visibly shaken, reduced to tears and emotionally upset after a lesson with the disruptive class. Mrs Bell had known the pursuer as a teacher since 1990. Mrs Bell was aware of the pursuer's normal composure and teaching attributes as highlighted in the reports hereinbefore condescended upon. Mrs Bell said to the pursuer that "this class is going to make you ill". In or about October and November 2000, Steven Harrison, Assistant Head Teacher, attended some of the classes taken by the pursuer with the disruptive class. He did so in light of the reported problems faced by the pursuer. He saw that the pursuer was anxious. He saw that the pursuer was on the brink of losing her self control and on the brink of breaking down emotionally. He finally told the pursuer to leave the classroom, whilst he dealt with the disruptive class. In or about November 2000, Mrs Stirling, a teacher at the school, found the pursuer in an emotional and anxious state because of the disruptive class. She saw the pursuer in such an emotional state that she told the pursuer to go home. Mrs Stirling reported the situation to Mr Brown, Deputy Head Teacher. Mrs Bell and Mr Harrison had by then both seen the pursuer reduced to tears because of the indiscipline within the disruptive class. Mr Harrison, Assistant Head Teacher, visited the class and on one occasion found the pursuer in such an obvious state of distress as to cause him to send the pursuer to the staff room. He found the pursuer openly weeping when he met her there. He agreed that the class should be split up. Mrs Bell, Principal Teacher, had found the pursuer in tears in the classroom. She said to the pursuer that the class would make her ill, unless she ignored them. In or about late November and beginning of December 2000 the pursuer was ill as a result of the disruptive class and her employers' failure to resolve the problem. She was signed off sick by her doctor. The pursuer's husband met with the Head Teacher, Mr Donald Campbell and informed him that the pursuer was struggling to cope with the disruptive class and that she felt overloaded in her position. He told Donald Campbell the problem with the class was affecting the pursuer's home life as well as her school one. He said it was making the pursuer ill. On the morning of the pursuer's return to work she visited Donald Campbell's office and told him that she was "just not coping". She burst into tears in his presence. In or about December 2000, the pursuer made an application for part time work. She made the application expressly on the basis that she could not meet the demands which she faced in her full time work. The only material or significant demand which forced her to apply for part time work was the demand of trying to teach the disruptive class. The pursuer was offered a part time contract. Thereafter the pursuer continued to raise her concerns and experiences at Department meetings, as condescended upon. Those concerns were raised with the Head Teacher, Deputy Head Teacher and two Assistant Head Teachers. On return to teaching the pursuer was allocated the same number of classes spread over four rather than five days. Reduction in the pursuer's working hours, when the pursuer started part time work, had not addressed the indiscipline of the disruptive class, which had previously been experienced by the pursuer. Nor did it address the issue of indiscipline of the disruptive class to which she was assigned on taking up her part time post. In or about January 2001 a meeting was called by the pursuer to discuss the indiscipline of the class. In attendance were the pursuer, Mr Kelly, Assistant Head Teacher, Mr Harrison, Assistant Head Teacher and Mrs Bell, Principal Teacher. The pursuer expressed concerns that the discipline policy was failing. The collective response was that the school did not intend to change its approach and the class would not be split. The regular Staff Meetings at which discipline might be discussed fell on the pursuer's days off. She adopted the strategies agreed upon in Department meetings. The behaviour of the pupils continued and was abusive and negative towards the pursuer."

"In the period January to June 2001 the pursuer to the knowledge of her Principal Teacher and Assistant Head Teacher had openly wept on several occasions after trying to teach those subjecting her to abusive behaviour. She referred matters to those higher in authority. In or about March 2001 the pursuer stopped Mr Harrison in the corridor to tell him of the worsening indiscipline in the class and her need for help. But Mr Harrison told the pursuer that the matter was no longer within his remit. Referrals were often left without any action being taken on them. No effective discipline was imposed on the pupils by those in authority within the school. The pursuer's word was questioned when, in June 2001, she reported to Mr Kelly that a pupil had pretended to masturbate in class. Mr Kelly sought verification of events from another pupil. The pursuer was told that all staff were under stress. She was told to get on with her job. The pursuer suggested that the disruptive class be split, but was told that that was not possible. She asked that another teacher take the abusive and disruptive pupils, but was told that that was not possible. The pursuer was told "This will make you ill, bury your head until the group have left the school" and by the Assistant Head Teacher, Mr Kelly: "If we split the year group, they will be the winners". The pursuer made many requests to her management to reallocate pupils to art and music in order change the group's dynamics. This was not accepted. The Art Teacher, who was above the pursuer in the school hierarchy, refused to teach additional pupils for fear that they would disrupt an existing class. In or about the end of May 2001 a new timetable was drafted for the pupils but the pursuer was faced with dealing with the same problem pupils despite her protestations to her management. On 11^th June 2001, Mr Kelly saw that the pursuer was anxious and emotional during her final lesson with the disruptive class. He saw that the pursuer was unable to speak to him about the indiscipline in the presence of the children, as she was on the brink of losing her self control and her emotions. When the pursuer tried to find Mr Kelly after class he was nowhere to be found within the school. That night, at a pre-organised parents' evening, the pursuer's classroom window was found smashed. The following day, the pursuer spoke to Mr Kelly by phone, she told Mr Kelly that she could not come into school because of the effect of the disruptive class was having on her. She burst into tears during the phone call. On 18^th June 2001 the pursuer phoned Donald Campbell to say that the disruptive class had made her ill. He said that he would speak to the pursuer about her illness after the summer holidays. The pursuer explained that the disruptive class had made her ill, that the discipline problem had been allowed to go on for nine months, that the pursuer had followed the school's discipline policy but it had failed. The pursuer said that she could not face teaching the class again. Mr Campbell said that he would discuss the matter on the pursuer's return to work but that he could not promise that the pursuer would not have to teach the class on her return. Since then the pursuer has been unable to return to teaching. She has continued to present Sick Lines accounting for her absence from work. On 10^th September 2001, the pursuer's mother raised the issue of the pursuer's ill-health with the defenders' Director of Education. She explained the pursuer's ill-health was as a result of the disruptive class and her employers' failure to resolve the problem. The pursuer's Union representative raised the issue of the pursuer's ill-health with the defenders. He explained that the pursuer's ill-health was as a result of this disruptive class and her employers' failure to resolve the problem. The defenders finally offered the pursuer counselling about her ill-health some two and a half years after the pursuer had said that she could not return to the school. No professional teacher assistance, counselling or professional input had otherwise been provided by the defenders. The defenders' failure so to provide caused a reactivation or in any event a worsening of the pursuer's illness during the course of its progression."

"The defenders were aware or ought to have been aware that unless steps are taken to alleviate the stressors giving rise to the signs of impending ill-health, there is a material risk of psychiatric illness developing from stress at work as ultimately befell the pursuer in her circumstances as averred. In light of the pursuer's known emotional and anxious condition by December 2000 the defenders knew or ought to have known that the pressures of the pursuer's job were causing her occupational stress which is liable to develop into the psychiatric illness from which the pursuer has been found to suffer, if no action was taken to alleviate the stressors giving rise to the pursuer's condition. There were early signs of the pursuer's impending psychiatric illness. These were "(i) Absence from work certified by a vague diagnosis of suffering from a virus; (ii) Distress and reduction to tears witnessed by colleagues; (iii) Application to reduce working hours; and (iv) Being sent home from school in a distressed condition". These are early signs of stress having put the pursuer at risk of suffering a psychiatric illness and signs that the pursuer had succumbed to that risk. By reason of these signs of impending psychiatric illness the defenders knew or ought to have known by December 2000 that instructing the pursuer to teach the disruptive class without any intervention by them to alleviate the conditions under which the pursuer was working, was likely to cause the pursuer to develop the psychiatric illness subsequently diagnosed. The defenders in breach of their own Stress Reduction Policy failed to arrange good communications between management and the pursuer and failed to foster a supportive environment within which the pursuer could discuss her stress and mental health issues. The defenders did not (i) identify performance and behaviour on the part of the pursuer which gave early signs of a deterioration in her mental health, nor sought timeous guidance from Personnel Services as to the appropriate course of action to alleviate the stressors giving rise to the pursuer's condition; (ii) monitor the pursuer's stress related and mental illness nor report to Personnel Services on a quarterly basis about her condition; (iii) consider a range of possible interactions to support the pursuer who had been absent from work with a stress related illness, and mental illness for a period of 10 working days. The defenders were aware or ought to have been aware of the risk to the mental health of a teacher such as the pursuer in the circumstances condescended upon, including the circumstances that there was an absence of steps taken to alleviate the stressors giving rise to the condition of the employee. The defenders did nothing to alleviate the stressors applying to the pursuer. In any event, and separately, the defenders knew or ought to have known by June 2001 just after the incident when one of the disruptive pupils gesticulated inappropriately, that leaving the pursuer unaided to teach the disruptive class was likely to cause the pursuer to develop the psychiatric illness subsequently diagnosed, unless steps were taken to alleviate the stressors giving rise to the pursuer's condition. Nothing was done to alleviate the stressors at any time prior to March 2002 (when Associated Health Specialists first contacted the pursuer's GP). A simple proactive plan could have been implemented at latest by January 2001, or even by June 2001 or even yet by September 2001. A team discussion amongst the involved members of staff following examination of the Disciplinary Reports submitted by the pursuer in line with the school disciplinary procedures would have been an effective first line in halting the escalation of pressure on the pursuer and thereby reduce the risks of mental health deteriorating. The defenders had issued a policy for employee welfare. It interpreted violence to employees at work as including serious or persistent harassment having been applied to the employee. In the context of the pursuer's circumstances, the pursuer had been subjected to and had been known by management to have been subjected to, persistent harassment from pupils. Management therefore had exposed the pursuer to incidents of behaviour which they themselves define as violence. Violence is also a factor likely to lead to stress. The defenders were aware or ought to have been aware that the pursuer could not cope with that stress because colleagues had seen the pursuer breakdown into tears. The defenders were also aware of the earlier signs of impeding ill-health condescended upon above. By these critical dates of end of January 2001; end of June 2001 or end of September 2001, the defenders in implement of their policy for employee welfare ought to have adopted a proactive plan to resolve the abusive and disruptive behaviour faced by the pursuer. The defenders could have made alternative arrangements to hold staff meetings on days when the pursuer was at work thereby alleviating the pursuer's isolation. They could and should have promoted and adhered to their own stress reduction policy which had it been adopted, would have had a material beneficial effect on the pursuer's mental health and would have avoided the mental illness from which the pursuer ultimately suffered. They could and should have referred the pursuer to their occupational health department, where the problems faced by the pursuer would have been addressed so as to minimise the risk of deterioration of the pursuer's mental health, and by so doing would have been reasonably likely to have avoided the mental illness suffered by the pursuer. They could and should have involved therapeutic counsellors to work with the pursuer and addressing known means to alleviate the stressors known to affect stress related illness in employees. The defenders failed to maintained anonymity and confidentiality about the pursuer's personal condition when disclosing information to the parents of the disruptive pupil. They could and should have maintained anonymity and confidentiality about the pursuer's personal welfare. The defenders as employers were aware or ought to have been aware of the need to take reasonable care to avoid the risk of psychiatric illness developing from stress at work, should have been aware of the stressors giving rise to the pursuer's condition in December 2000 and also in June 2001. They were aware from the development of their own policy, as also from publications in the public domain, that stressors would include the feeling of being out of control and disengagement in decision making processes concerning the circumstances giving rise to the problems facing the pursuer. The defenders failure to address these stressors in the pursuer's circumstances caused or materially contributed to the pursuer's ill health. Separately the defenders knew or ought to have known by September 2001 that the pursuer was suffering from a recognised psychiatric illness because of the consequences of the defenders' failure to address the disruptive class. The pursuer's illness was materially contributed to by the defenders' failure to provide teaching support or teacher assistance, counselling or any professional input into the situation in which the pursuer found herself. Had a proactive plan been adopted, it would have been reasonably likely that the pursuer's deteriorating mental health and physical problems would have been avoided. The defenders knew or ought to have known that a failure to provide such support, assistance or professional counselling would be likely to lead to a reactivation or an exacerbation in the pursuer's condition, as ultimately occurred. The defenders were aware, or ought to have been aware that if the pursuer had been made ill by stress at work, there was a likelihood that her illness would be made worse or reactivated by returning to the same stressful conditions as had brought about her first period of absence from work in November 2000. Despite that knowledge nothing was done by the defenders prior to March 2002 (when Associated Health Specialists contacted the pursuer's GP)."

Counsel for the pursuer did not move to amend by deleting the words highlighted in italics. To be consistent he ought to have done so as the point made against the use of those words to which he acceded was the same. In these circumstances I propose to exclude those words from probation. I suspect that counsel simply overlooked that the words to which objection was successfully taken in other parts of the pleadings also appeared here.

"The injury to the pursuer's mental health was caused by the fault of the defenders. It was their duty to take reasonable care for the safety of their employees, including the pursuer, and to avoid exposing them unnecessarily to the risk of injury. It was their duty to take reasonable care to devise, maintain and enforce a safe system of work. It was the defenders' duty to take reasonable care not to subject the pursuer to working conditions that were reasonably foreseeably likely to cause the pursuer psychiatric illness, injury or illness. In the circumstances it was the defenders' duty not to expose the pursuer to the risk of psychiatric injury. As it was plain enough in the circumstances condescended upon for any reasonable employer by December 2000, to realise that it should do something about the pursuer's position in the school, it was the defenders' duty to take steps to safeguard the pursuer from impending harm to health arising from stress at work. It was their duty to take reasonable care to adopt measures to reduce the risk of harm to health arising from the stress to which the pursuer was subjected. It was their duty to plan, organise, and manage the pursuer's teaching time to reduce the risk of psychiatric illness arising from teaching S3. In each and all these duties the defenders failed and by their failure caused the pursuer the loss, injury and damage hereinafter condescended upon. The defenders knew or ought to have known that if they failed in these duties then damage to the pursuer's mental health could result. The kind of harm suffered by the pursuer of psychiatric illness falling within the classifications hereinafter condescended upon, was reasonably foreseeable. The harmful reaction to the pressures of the workplace, namely the psychiatric illness as hereinafter condescended upon being attributable to stress at work, was reasonably foreseeable in the pursuer. It was reasonably foreseeable because of the particular characteristics of the pursuer and the particular demands that the defenders imposed on her. The defenders were aware (i) of prolonged abusive and disruptive behaviour, (ii) that strategies to tackle the abusive and disruptive behaviour were not succeeding, (iii) that the pursuer was vulnerable to the abusive and disruptive behaviour. By December 2000 the defenders knew or ought to have known that the pursuer was at risk of injury by the abusive and disruptive behaviour she was experiencing. By that date the defenders knew or ought to have known that their strategies to stop the abusive and disruptive behaviour was not effective. By that date the defenders knew or ought to have known that asking the pursuer to continue working with S3 was likely to cause her stress and to cause a psychiatric illness, such as ultimately befell the pursuer unless steps were taken to alleviate the stressors applying to the pursuer. It was reasonably foreseeable to the defenders that the pursuer was likely to suffer psychiatric injury if she had to return to work and be exposed to the same working conditions as prior to her application to reduce hours. Further even disregarding the inaction of the defenders up to June 2001, due to the nature and extent of the work undertaken by the pursuer and the signs of impending harm to health from the pursuer, it was reasonably foreseeable that the pursuer was at risk of injury before she signed off work as absent through ill health in the summer of 2001. In the exercise of their duties of care, the defenders ought to have provided by end of January 2001, or even by end of June 2001, and yet still by the end of September 2001 a system whereby:

(a) the abusive and disruptive pupils were effectively precluded from carrying on with their behaviour over a prolonged period such as condescended upon;

(b) the pursuer was provided with support in her application of the strategies and sanctions adopted at Departmental Meetings to curb the disruptive and abusive behaviour;

(c) the disruptive and abusive pupils were not given to believe that their behaviour was affecting the pursuer's ability to teach;

(d) reports of abusive and disruptive behaviour from a teacher in a position of the pursuer were actively acted upon;

(e) on being subjected to abusive and disruptive pupils, the teacher in a position of the pursuer could seek counselling;

(f) the internal school policy on choice of subjects be made more flexible when met with conduct from pupils such as that condescended upon;

(g) management react to signs from an employee of impending harm to health, such as:-

(i) repeated reports of abusive and disruptive behaviour during teaching time;

(ii) express warnings that the pursuer was unable to cope;

(iii) the episodes of the pursuer weeping openly and

(iv) the request for shorter working hours.

(h) a teacher subjected to abusive and disruptive behaviour is not required to persevere after complaining of stress arising from the circumstances.

It was reasonable in the circumstances, having regard to the magnitude of the risk of harm occurring, the gravity of the harm which could have occurred and the cost of practicability of preventing the risk of injury, that the defenders provide a system such as that hereinbefore condescended upon. The defenders ought to have offered the pursuer occupational health support or counselling before Associated Health Specialists finally contacted the pursuer's GP in March 2002. They did not do so. The defenders failed to take reasonable steps to reduce the risk of injury, and thereby are in breach of their duties of care owed to the pursuer. A confrontational style of management was adopted in the defenders' refusal to reallocate pupils and refusal to split the group of abusive pupils. The confrontational style was a material contributing factor to the deterioration in the pursuer's mental health. The defenders could and should have adopted a less confrontational style and ought to have assisted the pursuer in the manner set out in its Stress Reduction Policy. Had the defenders done so then the pursuer's mental health would not have deteriorated in the manner in which it did. Separately, as the defenders knew that the pursuer was liable to develop a psychiatric illness if she carried on with work with the disruptive class, the defenders had a duty of care not to continue to employee (sic) the pursuer to perform that job. Further, the defenders had a duty to provide such support, assistance or professional counselling as would have been likely to prevent any reactivation or exacerbation in the pursuer's condition. There were steps the defenders could and should have taken in the exercise of their duties of care. They could and should have:

(i) provided effective disciplinary measures to supplement the pursuer's actions;

(ii) supported the pursuer in her disciplinary action against the disruptive class;

(iii) arranged to withdraw pupils who were the cause of the disruptive influence from the class or from the school for effective periods for discipline;

(iv) provided counselling and support within a reasonable period of stress arising.

Had there been constructive investigation and discussion with the pursuer by the defenders as directed by the defenders' own policy and also as directed by publications in the public domain and known to the defenders as employers of teachers, these would have restored the pursuer's self confidence in her professional judgement and skill and minimised the risk of the pursuer suffering from mental illness."

Again the words highlighted by italics were deleted by amendment during the debate. Also towards the end of that article of condescendence reference is made to a report prepared by Dr Alan Coupar and there is an averment that "its terms are referred to and adopted herein for the sake of brevity". In response to one of the points taken on behalf of the defenders' counsel for the pursuer moved to delete the reference made to that report. I allowed the amendment to the pleadings to be made to allow that deletion. It is to be noted that in this article of condescendence the pursuer avers that occupational health input was provided to the pursuer in March 2002 whereas in article 6 the averment is that no counselling was provided to the defender for some two and a half years (see paragraph [8])

"This is, I think useful guidance, but it must be read as that, and not having anything like statutory force. Every case will depend on its own facts and the well known statement of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776, 1783 remains the best statement of general principles:

'The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard properly expected of a reasonable and prudent employer in these respects, he is negligent'."

Those observations underline that the ultimate test remains that of the reasonable and prudent employer and that whether or not the threshold question of foreseeability can be answered depends very much on the facts and circumstances of the particular case. Of course satisfying the threshold question of foreseeability is not in itself enough. The claimant must also establish that there has been a breach of duty, namely whether the employer could reasonably have been expected to take precautionary measures to prevent the harm occurring. In Barber v Somerset County Council Lord Rodger of Earlsferry dealt with that matter in the following way at page 1096:

"The employers' duty is to take reasonable care to avoid injuring his employee's health. Therefore, as the Court of Appeal [2001] ICR 613, 627-628, paras. 33, 34 stressed, even where a Court finds that such injury was foreseable, it must go on to consider what steps the employer could be reasonably be expected to take once he was aware of that risk and whether they would have been effective."

"The first sign of psychiatric injury appeared at the end of the summer term of 1998 when she "broke down" at school because of the stress of dealing with the pupils. Very little specification is given of that incident. It is not made clear whether the headmaster or other managers was made aware of the incident. Immediately after the pursuer's concern was again related to resources rather than to her own condition. While her reaction was laudable, it meant that the defenders' attention was directed away from her psychological state. Accordingly in my view the averment "break down, if proved would not be enough to establish that the defenders were alerted to the risk of psychiatric injury to the pursuer."

It is clear from the passage just quoted that that case very much turned on its own averments. In contrast the pursuer in this case does make averments detailing her emotional state over a period of time and that she made it plain that the disruptive class was the cause of her emotional instability. In my view Taplin v Fife Council is of no assistance to the defenders.

[31] In Taplin v Fife Council, Lord Philip, having referred to Hatton v Sutherland said at page 657 D-E

"In that situation, before a duty of care to prevent psychiatric injury can arise, the employee must establish that a harmful reaction to the pressures of the workplace, in the form of actual psychiatric injury, was reasonably foreseeable in him as an individual."

Mr Buchanan criticised that formulation of the test as too strict and under reference to Cross v Highland and Islands Enterprise, he submitted that the correct test was whether harm to health generally was reasonably foreseeable. He seemed to encompass within this formulation the suggestion that the averment that the pursuer had been certificated absent from work due to a virus could be prayed in aid when addressing the issue of reasonable foreseeability.

[32] In Cross v Highland and Islands Enterprise Lord Macfadyen said at page 1076 C-E under reference to Page v Smith [1996] AC155:

"Page affirmed that a wrongdoer would be liable for psychiatric harm suffered by a victim to whom duty of care was owed because it was reasonably foreseeable that he would suffer harm, irrespective of whether psychiatric harm in particular was reasonably foreseeable."

"34. The contract of employment will usually regulate what is to happen if an employee becomes unable, due to illness or injury, to carry out his duties. There may be provision for a defined period on reduced pay, followed by termination of the contract. At the end of the process the employee is free to make new arrangements. While the timetable is likely to be definite, the exact legal analysis of the employee's position when off work under such provisions is by no means free from difficulty. Whatever the position, however, the introduction of a tortious duty of reasonable care on the employer to provide assistance so that the employee can return to work and draw his normal pay, but do less than his full duties for an indefinite period, does not sit easily with such contractual arrangements. Nor does it seem likely to promote efficiency within the enterprise or department".

Lord Rodger went on to say that, since the interrelationship of any tortious duty and contractual duties had not been analysed in the course of the appeal or previously considered, he was not prepared to express a view on what the content of the employer's duty of care might be.

"However, we do know of schemes now being developed and encouraged which recognise and respond to the peculiar problems presented both to employees and employers. The key is to offer help on a completely confidential basis. The employee can then be encouraged to recognise the signs and seek that help without fearing its effects upon his job or prospects; the employer need not make intrusive enquiries or overreact to such problems as he does detect; responsibility for accessing the service can be left with the people who are best equipped to know what the problems are, the employee, his family and friends; and if reasonable help is offered either directly or through referral to other services, then all that reasonably could be done has been done. Obviously not all employers have the resources to put such systems in place, but an employer who does have a system along those lines is unlikely to be found in breach of his duty of care towards his employees."

The pursuer's position on Record is that after she ceased work in June 2001, approaches were made to the defenders by her mother and union representative. As I have set out in paragraph [8], the pursuer avers that on 10 September 2001 her mother raised the issue of her ill health with the defenders' director of education and told him that the cause of the pursuer's ill health was the disruptive class and the defenders' failure to resolve the problem. The pursuer also avers that her union representative made a similar point to the defenders and that no assistance was made available until at least March 2002. I consider that those averments reinforce the pursuer's position on foreseeability at a time when she still remained an employee of the defenders. As amended during the debate, the pursuer's case now is that the defenders' failure to respond to that information by making available occupational health resources contributed to a worsening in her condition. Although in the passage just quoted from Hale LJ the suggestion is that the responsibility for accessing such services rests with the employee's family and friends, whether that must inevitably be so must depend upon the facts and circumstances of the case. At this stage I am not prepared to decide that the pursuer will necessarily fail to establish that the defenders were under a delictual duty of care to take steps to arrange to make such provision available.