This article was written by Liam Ryan.
Occupational stress claims are always textured, complex and emotive. They do however, often present with common issues and themes, and one that persistently arises is how a court should approach situations where a Defendant has made confidential counselling services available to an injured Claimant prior to their injury.
This issue was revisited recently in Foxton-Duffy v Jockey Club Racecourses Limited [2026] EWHC 571 (KB), and the current approach defined and set out in a detailed judgment from Deputy High Court Judge Elizabeth O’Neill, and the friction between guideline 11 of Sutherland v Hatton [2002] EWCA Civ 76 and the principles of Daw v Intel Corporation [2007] ICR 1318 were addressed.
The judgment warrants careful consideration, but at its core is a human story of an employee broken by an unreasonable workload, and a workplace culture that refused to hear him. The Judgment has not been published on Westlaw (yet) and I am grateful to have been provided with a copy.
The facts
The Claimant was employed by the Defendant from the 7th January 2013 until the 15th April 2022 when his employment was terminated by consent. Prior to November 2020, he was Head of Marketing for the South West Region, responsible for marketing at Cheltenham, Wincanton, Warwick and Exeter racecourses.
The Defendant restructured its marketing department in November 2020, merging four regional Head of Marketing roles into two. The Claimant became Head of Marketing for the enlarged West Region, which additionally covered Aintree, Haydock Park and Carlisle. The court found that as a result of the restructure, his workload increased dramatically.
The court found that, contrary to what had been planned, the majority of the marketing work that was meant to move to the central team remained with the regional teams, which were no longer resourced to undertake it. Marketing staff for the seven racecourses in the West Region dropped from 21 to 7.
Following the Claimant’s departure, the Defendant effectively reversed the changes and returned to a four-region structure, re-appointing marketing managers for each region. The court treated this as further confirmation that the restructure had created a fundamental imbalance in workloads.
In addition to his core marketing portfolio, the Claimant undertook significant operational responsibilities that fell entirely outside his formal role profile. The Defendant’s own post-departure assessment, conducted in the context of an equal pay grievance by his counterpart, Ms Michelle Anderson (herein abbreviated to “MA”), estimated these additional responsibilities alone amounted to at least 105 extra working days per year. The court found that the Claimant’s role profile “did not accurately reflect the role that [the Claimant] was doing” (paragraph 64 of the judgment).
In 2021, the Claimant was also tasked with preparing the original proposal for, and taking a leading role in delivering, the four-day Blenheim Palace International Horse Trials, a substantial and particularly labour-intensive undertaking requiring months of intense preparation, with frequent 5 am starts and very long working days.
Additionally, he received competing demands from both his line manager, a Mr Olaf Gueldner (herein abbreviated to “OG”), Chief Marketing Officer, and his previous line manager, a Mr Ian Renton (herein abbreviated to “IR”), Managing Director of the West Region, with little co-ordination between them.
Problems arise
From around April 2021 onwards, the Claimant’s mental health began to deteriorate visibly. By this time, he was regularly working 7 am to 7 pm in the office, continuing to work in the evenings and at weekends, and by the time he left in January 2022 had accumulated 20 days of untaken annual leave. From June 2021 onwards, multiple colleagues independently noticed a marked change in his demeanour and behaviour: he became withdrawn, increasingly emotional, and would at times have to leave the room when overcome.
On the 29th April 2021, the Claimant and his counterpart Ms Anderson (herein abbreviated to “MA”), Head of Marketing for the East Region, met with OG and formally raised the risk of injury through stress to all members of the marketing team. MA had consulted the HSE website specifically to identify the appropriate language for this purpose. MA’s contemporaneous note of the meeting recorded her warning that it was “possible to foresee someone in our marketing team becoming absent from work through stress related illness, and I’m particularly worried for the implications for those who’d be left to carry the workload in their absence” (paragraph 101 of the judgment). The following day, MA telephoned OG and expressed specific concern about the Claimant’s wellbeing (paragraph 107 of the judgment).
On the 18th June 2021, MA emailed OG expressly raising “unhealthy levels of stress in the marketing department and the risk of potential impact on the health of both myself and others in the team”, and reporting that she was personally waking in the night worrying about work and had been tearful on video calls with colleagues. She attached her contemporaneous note of the April meeting. The court found that OG, remarkably, had not considered the email or its attachment despite having responded to another point in the same message.
In July 2021, MA met with Ms Amy Starkey, Managing Director of the East Region, and expressed concern that, as the work pressure passed from the East to the West Region, it would be at the expense of the Claimant’s mental health. Over the summer, the Claimant himself had tearful conversations with Amy Starkey in which he described the pressures of work and how unsupported he felt.
The critical moments
On the 9th September 2021 at a Marketing Leadership Team workshop, several members of the team, including the Claimant, became tearful. Both the Claimant and MA raised their excessive workloads before and at the meeting. On the 29th September 2021, at an internal marketing meeting, the Claimant became overwhelmed and tearful just before giving a presentation and had to leave the room to compose himself. The court found he was “exhausted and overwhelmed by the successive demands that were made of him” and was “displaying behavioural symptoms of harmful levels of stress” (paragraph 152 of the judgment).
On the 27th October 2021, the Claimant uncharacteristically lost his temper and shouted at a colleague (referred to as MX) during a telephone call. He immediately recognised his behaviour was wrong, apologised, and was tearful afterwards. The court rejected the Defendant’s suggestion that this was consistent with a pre-existing pattern of aggression, finding instead that the Claimant’s angry outburst “was an unusual event” and that it, together with his tears thereafter, “were symptoms of stress having a negative impact on his behaviours” (paragraph 160 of the judgment).
On the 3rd November 2021, the Claimant met with OG at a service station near Newbury to discuss the 27th October incident. The court found that the Claimant explained that the pressures of the restructure and the welfare issues it had caused were the root cause of his uncharacteristic outburst, and told OG: “it is only a matter of time before I fall out with everyone.” He was upset throughout the meeting. OG’s response was an email of 5 November directing the Claimant to “get on board” with the restructure and characterising the Claimant’s statement about falling out with everyone as an inappropriate approach to relationship management.
The court found that OG had displayed a “determined unwillingness to listen to or acknowledge the concerns that the Claimant raised”, and that his response “effectively cut off any potential avenue for [the Claimant] to express further concerns” (paragraph 239 of the judgment).
On the 8th November 2021, the Claimant met with IR and broke down in tears. He shared a detailed draft email response to OG which he had prepared, setting out multiple personal examples of the harmful impact work pressures had on his performance and wellbeing, criticising OG’s failure to acknowledge welfare concerns, and raising the prospect of resignation — describing OG’s lack of care for welfare as “dangerous”. The court found that IR read this draft and advised the Claimant not to send it, indicating he would help sort things out. Sadly, nothing was done.
The court found that by the 3rd November 2021 the risk of psychiatric injury to the Claimant was obvious to the Defendant such that a reasonable employer would have recognised the need to take steps to avert that risk, and that this was “doubly” confirmed by the meeting of the 8th November (paragraph 224 of the judgment).
At some point towards the middle or end of November 2021, the Claimant’s crisis reached its nadir. On his daily drive to work, he had begun counting the trees at the roadside and selecting one to drive into. On one morning, he accelerated towards a tree with the intention of killing himself, only regaining control of the car at the last moment. This was the watershed event which the court found marked the onset of both his Complex PTSD and his Moderate Depressive Episode.
Legal Analysis
The Hatton Framework
The court applied the established framework from Sutherland v Hatton [2002] EWCA Civ 76, distilling the relevant principles as follows: the threshold question is whether harm to this particular employee was reasonably foreseeable, assessed by reference to what the employer knew or ought to have known about the individual. Further, an employer is generally entitled to assume an employee can withstand normal pressures unless it knows of a particular problem or vulnerability.
The touchstone remained that the indication of impending harm must be “plain enough for any reasonable employer to realise that he should do something about it” (paragraph 201 of the judgment, citing Hatton paragraph 31).
The court framed its legal analysis around three questions of fact:
a. Whether and when injury to the Claimant was reasonably foreseeable;
b. Whether the Defendant failed to take any reasonable steps to prevent foreseeable harm; and
c. Whether that failure caused or materially contributed to the injury (paragraph 25 of the judgment).
Foreseeability is not always a single event, but a cumulative picture
One of the most instructive aspects of the judgment is the court’s careful, staged approach to foreseeability. The court declined to find that any single warning, on its own, was sufficient to trigger the duty to act. Instead, it built up a cumulative picture across multiple months.
The meeting of the 29th April 2021 placed the Defendant on notice that the team was overworked and that its leaders feared a member might be injured through stress, and that concern had been specifically expressed about the Claimant. However, the court found this was insufficient, of itself, to make the risk of injury to the Claimant specifically “plain enough” and that “a single warning from a colleague in these general terms [does not make] the risk of potential harm to [the Claimant’s] health plain enough for a reasonable employer to realise he should take steps to avert the risk” (paragraph 203 of the judgment).
Foreseeability of injury to the Claimant was established from the 3rd November 2021, having regard to all the cumulative factors which the Defendant knew or ought to have known by that date, including:
a. The unreasonable volume and nature of his work;
b. MA’s own reported harmful symptoms of stress; the repeated warnings about the team’s welfare from April onwards;
c. the Claimant’s markedly changed demeanour and repeated tearfulness from June 2021;
d. the public loss of composure at the meetings of the 9th and 29th September 2021;
e. the uncharacteristic outburst of the 27th October; and,
f. the Claimant’s own words at the 3rd November meeting making clear that he could no longer sustain normal working relationships.
The court also drew attention to OG’s approach of treating every welfare complaint as unfounded criticism of the restructure, noting that “placing unreasonable demands upon an employee and then responding in an unreasonable way to the employee’s complaints about these demands are among the factors to be taken into account in deciding whether the employer knew or ought to have known that the pressures of the job were causing occupational stress” (paragraph 219 of the judgment).
Breach of duty, Hatton guideline 11 and Daw
The Defendant pointed to the availability of a confidential counselling service provided by Racing Welfare, access to Maitland Medical Services, and Bupa Healthcare (provided as part of the Claimant’s remuneration package), as steps it had taken to prevent psychiatric harm.
The court acknowledged, applying principle 11 of Hatton, that the general availability of such services can in principle provide evidence that an employer has taken steps to prevent such harm. However, it immediately qualified this by reference to Daw v Intel Corporation [2007] ICR 1318, noting that “such an offer is not a panacea” (paragraph 229 of the judgment).
At paragraph 231, the court applied the Daw principle to the facts, holding that the general availability of the services was insufficient: “Given the nature of the risk to MFD’s health, I do not consider the general availability of a confidential counselling service or private healthcare sufficient to discharge the employer’s duty of care to MFD in the circumstances of this case. On 3 November, and on 8 November, it was made obvious to the Defendant that MFD was at risk of psychiatric injury related to overwork, such that his employer should have realised that positive steps were needed to avert this risk. MFD’s problems were substantial and could only be dealt with by more definitive management intervention”.
The court identified the steps the Defendant could and should have taken as:
a. A referral to occupational health to obtain professional advice on the risk of injury and how to avert it; and/or
b. A personalised stress risk assessment — a step the Defendant had itself used successfully in other cases and which was well within its operational capacity (paragraphs 233–238 of the judgment).
These measures would have recognised and gauged the individual risk to the Claimant, leading to the identification of personalised protective measures. The court emphasised that neither step would have been unduly onerous, given the size and scale of the Defendant’s operations.
Wider applicability
This judgment should be of interest to lawyers and HR professionals alike for a number of reasons.
First, it provides a detailed and carefully worked example of how courts will apply the Hatton framework to a complex factual picture built up over many months. The staged, cumulative approach to foreseeability (where no single event was decisive but the mounting weight of evidence ultimately became overwhelming) serves as a reminder that employers cannot assume that any one warning, addressed in isolation, discharges their obligations. Each episode is assessed in context, and against the full background of what the employer knew or ought to have known.
Secondly, and importantly, the judgment illustrates the limitations of guideline 11 of Hatton. An employer who makes a confidential counselling service available will not automatically escape liability for psychiatric injury where a specific, serious and imminent risk to an identified employee has become apparent. In those circumstances, the passive availability of a helpline will not suffice: the duty requires active intervention.
Thirdly, the judgment is a reminder of the legal significance of management responses to welfare complaints. OG’s approach of consistently recasting the Claimant’s welfare concerns as unfounded attacks on the restructure, and responding to a clear cry for help with a letter requiring the Claimant to “get on board”, was itself treated as part of the evidential picture on foreseeability. Employers and managers who dismiss or deflect stress-related complaints do not thereby reduce their liability. They may, on the contrary, be adding to it.
