Stress at Work
Stress absence, and the right to sick pay or other pay
Stress claims made easier: October 2008 : Dickins v. 02
Simply having a stressful job will not make the employer liable.
Knowledge Vulnerability and Foreseeability
Reasonable support and steps to be taken
Stress and Protective/ Pre-emptive Dismissal
Protection from Harassment Act 1997
Stress absence, and the right to sick pay or other pay
Unsurprisingly the EAT has ruled in Kaur and Other v. British Library and Others (2008) that an employee must either be signed off sick ( and claim either contractual sick pay or SSP) or in essence they will have a duty to attend work; the mere fact that the employee has a dispute with the employer does not entitle the employee to not work and claim unpaid wages.
Facts
Two employees complained of harassment and victimisation, and of a hostile
and intimidating working environment. After they went off work with stress
(work related) in early 2006, an occupational health doctor became involved
and wrote a report stating they were presently unfit for work and that
returning to work without resolution of their work related issues could
trigger a recurrence or step up in their symptoms. They returned to work
in April 2007.
The employers requested sick notes for the absence. The employees argued
the absence from work was “employment related” not medical and demanded
full payment not sick pay pending the outcome of their grievance.
The employees claimed unlawful deduction of wages ( and other matters).
After the Tribunal upheld unlawful deduction of wages claims the employer
appealed to the EAT.
They had received sick pay although they had declined to provide sick
certificates. The employer argued the employees had been offered sideways
move to another part of the business, which they had refused; so they
were not entitled to any further sum.
Finding for the employers the EAT held the employees had to establish
a normal contractual right to full payment of wages before a finding of
unauthorised deductions could be made ( or an equivalent right). The employees
had a duty to be able and willing to work.
The issue was not the entitlement of the employees to sick pay when they
had no sick certificates. The issue was their being willing and able to
work.
The reality was the employees did not want to return to work before the
outcome of their grievance; they chose to rely upon the doctor’s report
which had given a clear opinion that they had been unfit to return to
work until the issues had been resolved.
However they were not able and willing to work, so they had not been entitled
to full pay.
Practical Point
The idea that an employer or employee can suspend the operation of the
contract and the payment obligations in the open ended way suggested by
the employees would have been a complete minefield for anyone. The employee
must either work, or be signed off. In a serious case the employee may
have to consider resigning and either claiming constructive unfair dismissal
and or harassment or personal injury damages.
Stress claims made easier : October 2008 : Dickins v. 02
Facts
Ms D’s found her work as Finance and Regulatory Manager very stressful,
especially the periodic audits.
She suffered a breakdown; leading up to this in March 2002 she had asked
to be moved to a less stressful job but were no vacancies and she was
told that this would be reviewed in three months' time. In April 2002
Shortly after that she asked for a 6 month sabbatical. She complained
she was suffering from stress, and was anxious she would become ill without
time off. O2's recommended she contact their confidential helpline. At
her annual appraisal on 30 May she repeated her worries and as a result
on 5th June she was referred to occupational health. In the 3rd week of
June 2002 before having her OH appointment she suffered a breakdown. She
never returned to work with 02. Her contract was terminated in November
2003. Ms. D. brought damages for personal injury alleging psychiatric
injury.
The law on stress claims has been changed by the decision of the Court
of Appeal in this case:
1. Forseeability
The Court of Appeal decided her injury was reasonably foreseeable to
the employer. The demarcation point was when she requested her sabbatical.
The impact of the Court of Appeal’s decision is that Walker -v- Northumberland
County Council does not mean an employer would not be liable for the first
breakdown a claimant had suffered on the basis that it would not normally
be foreseeable. In this case there was adequate warning of the risk of
harm to Ms. D. whose illness was not "come out of the blue".
2. The confidential helpline
In Sutherland –v- Hatton the Court of Appeal held an employer operating
a helpline would be unlikely to be in breach of duty. Here the helpline
was insufficient. A better response – some proper "managerial intervention"
had been needed and not provided. As a result 02 were in breach of the
duty that they owed their employee.
Each case must turn on its facts but the provision of a helpline is plainly
not a guaranteed insurance policy for an empllyer.
3. Causation
As is not uncommon the medical evidence pointed to a multi-factorial
set of causes of the stress breakdown Ms. D. suffered. Some had nothing
to do with her employer. The court asked if 02’s failures made “a material
contribution” to the breakdown. The court said there was an "obvious
inference" that 02’s failure to recognise her need for a rest and
a change to her work "tipped [her] over the edge".
This finding of "obvious inference" may be easier to show than
the medico-legal test of “material contribution”.
In Sutherland –v- Hatton the Court placed the burden of proof more heavily
on the employee to establish that where there were multiple potential
causes of the claimant's breakdown, the employer's breach of duty was
one of them. That has now been made easier for employees to deal with.
4. Apportionment
In Dickens the Court applied the standard personal injury position that
if a wrongdoer is responsible for a material contribution to the injury
then the wrongdoer is liable for all the loss. This is a departure from
interpretations after Hatton that an employer is only liable for the element
of psychiatric injury caused by the workplace stress. There will still
be the usual arguments about an inevitable injury being accelerated or
made worse, but the “in for a penny in for a pound” approach does empllyers
and their insurers no favours.
Summary
Dickins is a set back for employers and insurers. Issues of foreseeability
and causation are eased for the employee and there is no need to show
a previous breakdown. The court may infer that the employer’s breach was
a cause the injury.
Practical Point
If an employee is complaining of stress a prudent employer will suggest practical steps, perhaps a period of paid leave, workplace mentoring and support, reduced duties etc. Relying on a confidential helpline is not enough. If an OH referral has been made particular care needs to be taken in the management of the employee pending the referral and outcome.
Stress at work : General
Statistics: 1 in 3 workers report they are affected by stress at work.
Overview ~ Employer Liability For Psychiatric Injury Caused By Stress
To trigger the employer’s duty to take steps, it must be reasonably foreseeable to the employer that steps need to be taken. Foreseeability depends on what the employer knows (or ought reasonably to know) about the individual and this depends on the individual as some illnesses may be easier to see on some individuals than others.
Where stress risks are a feature of a particular job, risk assessments should be made and any complaints of working conditions and workloads should be dealt with quickly to reduce the risk of future health problems.
Workplace stress is of growing concern as it can affect the productivity and morale of employees who are suffering from stress and may leave the employer liable for damages under a negligence (tort) or contract claim due to their psychiatric illness.
Simply having a stressful job will not make the employer liable.
Mr. P. had been permanently on-call out of hours to respond to any emergency during much of the period of his service. He alleged this led to him developing a psychiatric condition. The High Court held that it was not reasonably foreseeable that the Claimant would suffer the breakdown as a result of stress at work. Neither Mr. P. nor wife had not expressed any view to the Police Authority about his stress. He had never submitted a self-certification form mentioning stress. Severfal years before the breakdown a booklet was provided to the employer that did contain an indication that Mr. P. had a stress problem but that was far too old at the time of the breakdown and could not be relied on. It was not obvious from Mr. P.’s hours – including his standby duty- that the employer ( a Police Authority) should reasonably have foreseen the risk of him developing psychiatric illness as a result of stress.
Paterson -v- Surrey Police Authority 2009 High Court
Early case
Walker v Northumberland County Council 1995 IRLR 35
Local authority employer held to be liable for psychiatric damage caused to a social worker through stress.
The employer failed to take reasonable steps to alleviate the employee’s excessive workload after he had suffered a nervous breakdown, which resulted in a second breakdown.
The risk was seen to be reasonably foreseeable and the employer was said to be in breach of its duty of care, which included a duty to take reasonable care not to subject the employee to working conditions that are reasonably foreseeably likely to cause the employee illness.
Stress : Sources
• ACAS' stress at work guide, which aims to help organisations and individuals reduce stress at work as well as giving guidance as to how it can be prevented it from occurring in the first place;
• BERR Booklet on work-related stress for employers and employees (previously the DTI) and the Health and Safety Executive (HSE), together with the CBI, TUC, the Forum of Private Business and CEEP UK, which aims to provide guidance on, and increase general awareness of, work-related stress.
• The HSE has also developed stress management standards to help employers
measure their performance in managing the key causes of stress and identify
areas for improvement.
In the HSE standards the key areas are
1. the demands made on employees;
2. the level of control employees have over their work;
3. the support employees receive from managers and colleagues;
4. the clarity of an employee's role within the organisation;
5. the nature of relationships at work; and
6. the way that change is managed.
Stress : Scope for liability
Liability for psychiatric injury caused by stress at work is in general no different in principle from liability for physical injury, in other words, liability arises where there is a foreseeable injury which has occurred as a result of the employer's breach of his duty of care.
(Hartman v South Essex Mental Health and Community Care NHS Trust and
other linked appeals 2005 IRLR 293, CA;
Sutherland (Chairman of the Governors of St Thomas Becket RC High School)
v Hatton 2002 IRLR 263, CA).
The employer will breach his duty of care if he knows or should have known of the employee's problem or vulnerability and has failed to take reasonable steps to try and prevent the injury from occurring or re-occurring.
Example : The lack of foreseeability defeated a claim for stress in Bristol City Council v Deadman 2007 IRLR 888, CA
The main breaches were the employer's failure to provide three members of staff to act as a panel at disciplinary hearing (only two staff members attended, with the result that a further disciplinary hearing had to be called), and the manner of delivery of a letter informing the employee that a complaint against them remained under investigation (the letter was left on the employee's desk, where he found it on arriving at work in the morning).
It was not reasonably foreseeable that such failures would result in psychiatric harm.
Comment : it is surprising that this case went as far as it did.
Contrast case study of Ms CAA who spent all day with her relatively new manager. The manager phoned her at home in the evening to summon her to a disciplinary at very short notice. She had been exonerated in an earlier disciplinary connected with a long “unauthorised” absence when in Nigeria she contracted malaria after attending her father’s funeral. This failure to discuss the disciplinary properly during the day led to a crisis on the part of Ms CAA.
There is no duty to protect employees from feelings such as anger and bitterness or normal conditions such as stress or anxiety which do not cause injury.
The courts recognise that employers often have to take decisions (for example, in relation to disciplinary issues) which they know are likely to cause anger and anxiety and generally it is safe for an employer to assume that his workers can deal with ordinary disciplinary matters without worrying about how such disciplinary matters will affect their mental health.
(Croft v Broadstairs and St Peter's Town Council 2003 EWCA Civ 676).
But if the employer has acted unreasonably in the events leading up to his dismissal, an employee may be able to claim for damages if the result is a psychiatric injury that has been suffered because of the way the disciplinary procedure was conducted up to the actual dismissal.
For such a claim to succeed the events which gave rise to the injury must
be independent of, and prior to, the dismissal and must not immediately
surround the dismissal.
Liability for the actual act of dismissal is “ring-fenced” by the statutory provisions in relation to unfair dismissal. This has been criticised by the House of Lords and needs the “urgent attention of Parliament”. (McCabe v Cornwall County Council and anor heard jointly with Eastwood and Williams v Magnox Electric plc 2004 IRLR 733, HL).
In McCabe and Magnox, the employees had a claim relating to the financial loss they had suffered as a result of psychiatric injury caused by their employers' treatment of them in the events leading up to dismissal, which was independent of the action they brought relating to the unfairness of the dismissal.
In the Employment Tribunal compensation is not recoverable for damages
for financial loss due to injury to feelings, psychiatric injury, loss
of reputation and inability to find new employment arising from an employee's
dismissal or the manner of his dismissal.
Liability for the actual act of dismissal is “ring-fenced” by the statutory provisions in relation to unfair dismissal.
(Johnson v Unisys Ltd 2001 IRLR 279, HL; Dunnachie v Kingston upon Hull City Council 2004 IRLR 727, HL).
Unfairness in the circumstances of dismissal does not give rise to a common law action, whether in contract or tort, but must be subject to employment tribunal proceedings.
The employer will only be liable for the damages that the breach of duty
has caused or materially contributed to the harm suffered.
In a case of multiple cause and effect, an employer will only be liable for the proportion of damages which are attributable to his wrongdoing. Any assessment of damages will take into account any pre-existing condition or vulnerability and the chance that the employee would have succumbed to a stress-related disorder in any event.
Knowledge Vulnerability and Foreseeability
Although psychiatric damage may arise from the job that the employee is
required to do, unless there is a real risk of breakdown with regard to
that employee which the employer reasonably ought to have foreseen and
which he should have properly averted, the employer will be not be liable
for such damage.
It can be difficult to identify the difference between the risk of stress and the actual suffering of stress by an employee which may lead to a risk of psychiatric breakdown.
Practical approach, where there are indications that an employee is showing signs that he is either under great pressure from work or is already suffering stress, the employer should carry out an assessment of the causes of these signs and the exact state of the employee's health. If work-related stress is identified, appropriate action, support and monitoring may be required to ensure that the employer does not find himself in breach of his duty of care.
It is not necessary to establish that the actual injury suffered by the
employee was reasonably foreseeable as long as that kind of harm was reasonably
foreseeable and the injury was not too remote on the grounds of policy
or fact.
In one case, the majority of the Court of Appeal held that the employer
was responsible for the suicide of its employee who had been severely
depressed following a serious injury at work 6 years earlier. Lord Justice
Ward dissented on the issue of remoteness stating that at the time of
the accident it could not have been reasonably foreseeable that the employee
would kill himself years later.
Corr v IBC Vehicles 2008 ICR 372, HL
The employer is not expected to foresee any greater susceptibility to injury from work pressures than that which would be expected from other employees in the same or similar role (Sutherland (Chairman of the Governors of St Thomas Becket RC High School) v Hatton 2002 IRLR 263, CA).
An employer is also entitled to assume that the employee can withstand the normal pressures of the job and while an employer knew or ought to have known that a decision would cause an employee emotional upset in one form or another it does not necessarily follow that he knew or ought to have known that it would cause the employee to suffer a psychiatric illness such as depression.
(Fraser v The State Hospitals Board for Scotland, 11 July 2000, CS; Morland v London Borough of Tower Hamlets, 1 May 2003, High Court).
In theory the courts have held “no job in itself is intrinsically dangerous to mental health”
(Sutherland (Chairman of the Governors of St Thomas Becket RC High School) v Hatton 2002 IRLR 263, CA).
But:
The nature and extent of an employee's job will be a relevant factor when deciding what is reasonably foreseeable and while there are some occupations which appear intrinsically stressful such as the work of traffic police officers who regularly deal with gruesome accidents, the courts have emphasised that it is not the job but the interaction between the individual and the job which causes the harm. Even where one employer has foreseen a particular risk in a particular field of work, it does not necessarily follow that all others in the same field should have done so as well (Melville v The Home Office 2005 IRLR 293, CA).
It is generally reasonable for an employer to take what his employee tells him at face value, unless there are other indications to the contrary (for example, the employee has already had time off for stress). However, where an employer is aware of an employee's problem or vulnerability, there is a more positive requirement to actively monitor the situation and in such circumstances he should not solely rely on the employee informing him of his ongoing condition.
(Barber v Somerset County Council 2004 IRLR 475, HL).
Employers will not be expected to require the employee to undergo intrusive medical assessments (for example a further visit to the employee's psychiatrist) and in such circumstances it is generally reasonable to rely on the employee's reassurances as to his health (Vahidi v Fairstead House School Trust Ltd 2005 EWCA Civ 765).
In some cases an employer knows or is aware of a specific employee's problem or vulnerability as they have been informed of the problem or vulnerability (for example, because the employee returns to work after a period of sick leave due to stress or a stress-related illness).
However, an employer may also be liable if he should have known about a specific employee's problem or vulnerability, for example if the employee's behaviour should have highlighted to the employer that there was a problem.
In assessing whether the employer should have been aware of a particular problem, the courts will take into account what a reasonable employer should have foreseen, such as picking up signs from the employee's absence and sickness records, and being aware that other employees have suffered injury to their health in the same job.
Employers cannot be expected to have knowledge of confidential information to which they do not have access. For example, employers are not expected to know of an employee's vulnerability where the employee has declared it on a health screening questionnaire which was for the sole use by their occupational health service only.
(Hartman v South Essex Mental Health and Community Care NHS Trust and other linked appeals 2005 IRLR 293, CA).
As a matter of note, the Court of Appeal in this case commented that, there may be circumstances in which an occupational health department's duty of care to an employee requires the department to seek the employee's consent for the disclosure of the information to the employer so that proper steps can be taken for the welfare of the employee.
Stress and Working Hours
Failure to comply with the Working Time Regulations (SI 1998/1833) does not in itself establish a breach of the employer's duty of care, although an apparent lack of awareness of the obligations and requirements it contains and a failure to kept records will provide a favourable background against which to assess whether there has been a breach of duty by the employer
(Pakenham-Walsh v Connell Residential (Private Unlimited Company) and anor 2006 EWCA Civ 90).
As with all stress at work claims, all the relevant facts must be considered in assessing whether the psychiatric illness, arising from the stress of doing the work the employee was required to do, was reasonably foreseeable by the employer and that he failed to give reasonable support.
Reasonable support and steps to be taken
The employer is only in breach of duty where
• he knows or should have known of a specific employee's problem or vulnerability and
• he has failed to take whatever measures are possible and appropriate to try to support and help the employee.
• He is expected to take reasonable steps to protect the employee from an occurrence or re-occurrence of the psychiatric illness taking into account the
1 magnitude of the risk,
2 the cost of preventing it, and
3 whether if taken, such steps would do any good
(Barber v Somerset County Council 2004 IRLR 475, HL; Young v The Post Office 2002 IRLR 660, CA).
The employer must identify the steps that he both could and should take although he can only reasonably be expected to take steps which are likely to do some good.
Stress and Protective/ Pre-emptive Dismissal
Although it might be an appropriate course of action in certain circumstances, there are limits on the obligation on an employer to dismiss an employee in order to protect him from harm where the employee wants to go on working.
(Sutherland (Chairman of the Governors of St Thomas Becket RC High School) v Hatton 2002 IRLR 263, CA; Vahidi v Fairstead House School Trust Ltd 2005 EWCA Civ 765).
Confidential advice service
An employer who offers a confidential advice service is less likely to be found in breach of its duty of care. However, the Court of Appeal has emphasised that the weight given to this factor will depend on the facts of the case (Daw v Intel Corporation Ltd 2007 IRLR 355, CA). By itself, a counselling service may not prove to be sufficient as it may not be able to do anything other than advise the worker and consequently its scope is limited. For example, such a service cannot reduce a worker's workload if this is the cause of the problem. Further, a worker cannot be reasonably criticised for not using such a service.
“Hatton” Guidelines
All these principles really can all be found in the “Hatton” guidelines given by Lady Justice Hale The Court of Appeal has confirmed that these guidelines are useful signposts to help ascertain whether a worker has suffered psychiatric injury due to stress at work
(Hartman v South Essex Mental Health and Community Care NHS Trust and other linked appeals; Mark Hone v Six Continents Retail Ltd 2006 IRLR 49, CA; Pakenham-Walsh v Connell Residential (Private Unlimited Company) and anor).
They still have to be applied carefully upon a case by case basis,
No two cases are the same and that each case had to be decided on its
particular facts.
The guidelines are as follows:
1. There are no special control mechanisms applying to claims for psychiatric
(or physical) illness or injury arising from the stress of doing the work
the employee is required to do. The ordinary principles of employer's
liability apply.
2. The threshold question is whether this kind of harm to this particular
employee was reasonably foreseeable: this has two components:
a. an injury to health
(as distinct from occupational stress) which
b. is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends on what the employer knows or ought to know about the individual employee. Because of the nature of mental disorder, it is harder to foresee in a known individual than in the population at large. 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.
4. The test is the same whatever the employment: there are no occupations
which should be regarded as intrinsically dangerous to mental health.
( Take this as very diluted, it can probably be ignored e.g. Melville
v Home Office where the Home Office recognised that prison officers involved
in dealing with suicides might suffer psychiatric injury and had prison
care teams to provide care and support.)
5. Factors likely to be relevant in answering the threshold question include:
a. The nature and extent of the work done by the employee.
Is the workload much more than is normal for the particular job?
Is the work particularly intellectually or emotionally demanding for this employee?
Are demands being made of this employee?
Are the demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs?
Are there signs that others doing this job are suffering harmful levels of stress?
Is there an abnormal level of sickness or absenteeism in the same job or the same department?
b. Signs from the employee of impending harm to health.
Has he a particular problem or vulnerability?
Has he already suffered from mental illness attributable to stress at work?
Have there recently been frequent or prolonged absences which are uncharacteristic of him?
Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
6. 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. He
does not generally have to make searching enquiries of the employee or
seek permission to make further inquiries of his medical advisers.
7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
8. The employer is only in breach of duty if he has failed to take the
steps which are reasonable in the circumstances, bearing in mind the magnitude
of the risk of harm occurring, the gravity of the harm which may occur,
the costs
and the practicability of preventing it, and the justifications for running
the risk
.
9. The size and the scope of the employer's operation, its resources and
the demands it faces are relevant in deciding what is reasonable; these
include the interests of other employees and the need to treat them fairly,
for example, in any redistribution of duties.
10. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
11. An employer who offers a confidential advice service, with referral to appropriate counseling or treatment service, or an occupational health service, is less likely to be found in breach of duty
12. If the only reasonable and effective step would have been 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.
13. In all cases, therefore, 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.
14. The claimant must show that the breach of duty has caused or materially contributed to the harm suffered.
It is not enough to show that occupational stress has caused the harm.
15. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.
16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.
Stress Cases : Examples
Not foreseeable/reasonable support
1. In Fraser v The State Hospitals Board for Scotland, F claimed for a psychiatric illness that arose after he was demoted. Held : it was not foreseeable that the demotion would cause the employee's psychiatric illness.
2. In Morland v London Borough of Tower Hamlets, M, a local authority
education officer, claimed for psychiatric illness due to stress. The
Court held that his workload was not unreasonable and that, as with every
job, there were periods of intense activity, in this situation well balanced
by periods of relative inactivity and long holidays. As a result, it was
not foreseeable that the work pressure would cause the employee's illness.
3. In Bonsar v UK Coal Mining Ltd (named as RJB Mining UK Ltd) 2004 IRLR 164, CA. The Court held the employer must be aware of any particular vulnerability that the employee has for any subsequent illness to be reasonably foreseeable.
4. In Barlow v Borough of Broxbourne 2003 EWHC 50. The Court held that that B held a senior and demanding position - but as he had held this position for many years and often appeared relaxed and laid back it was not foreseeable to his employer that the work pressure would cause B's illness.
5. In Harding v The Pub Estate Company Ltd 2005 EWCA Civ 553, H, was an experienced pub manager. He lived on site, worked long hours, suffered from violence in the pub and damage to the property. After one and a half years H suffered a heart attack. Nothing was said to the employer which flagged up the employee’s health and there was no clear sign to the employee’s doctor that such a warning should be passed on. The employer was therefore never given the kind of warning that required it to act.
6. In Vahidi v Fairstead House School Trust Ltd, V, a school teacher became depressed resulting in 8 months off work. V returned to work when her psychiatrist informed the school that she was well enough to do so. The school, aware of the risk of a relapse, took her back initially on a part-time basis and organised weekly support meetings. Unfortunately V suffered depression again and left the school. The Court held that although the relapse was clearly foreseeable, there was no breach as it considered that the school had taken all the reasonable steps it could in supporting V on her return.
7. In Bristol City Council v Deadman 2007 IRLR 888, CA, a Council failed to follow its harassment policy fully. In particular, it convened a panel of two people to investigate a complaint of sexual harassment, rather than three. It was not foreseeable, the Court of Appeal held, that such a failure would lead an employee to cease work permanently.
Foreseeable/failure to give reasonable support
1. In Young v The Post Office, Y suffered a depressive condition as a result of an increasing workload. This was recognised by the employer and he had a period off work. On return to work, although the employer allowed him a flexible working environment, his workload was not monitored and he was sent on a training course which he found extremely stressful. The Court held it was plainly foreseeable that there might be a recurrence of his condition if appropriate steps were not taken to monitor his workload and the employer owed him a duty to take such steps.
2. In Barber v Somerset County Council, B, a school teacher, took on further responsibilities following a restructure of the staffing at the school he worked in. This caused him to work long hours and he found the workload and the school life stressful. B's condition worsened and he had to take sick leave for stress and depression. On his return to work, he initiated meetings with the senior management team but was dealt with unsympathetically and no steps were made by the school to investigate or remedy the situation. B continued to work under the same conditions or even possibly a slightly heavier workload until he suffered a nervous breakdown which caused him to leave the school. The House of Lords held that the employee was in breach of it’s duty of care.
3. In Melville v The Home Office 2005 IRLR 293, CA (one of the appeals linked to Hartman v South Essex Mental Health and Community Care NHS Trust and other linked appeals), M, a prison healthcare officer, attended eight suicides of prisoners and subsequently suffered a stress-related illness. The Home Office recognised that those involved in dealing with such incidents might suffer psychiatric injury and had prison care teams to provide care and support. However, the support procedure was not implemented with regard to M and as a result the Home Office was held to be in breach of their duty of care.
4. In Mark Hone v Six Continents Retail Ltd, H, a pub manager, left work after having collapsed from chest pains and giddiness. Prior to this, H had told SCR Ltd that he was working excessively long hours and he did emphasise that he was tired and required help after other key workers had left. However, no additional help was forthcoming. The Court of Appeal held that SCR Ltd had breached its duty of care as it was aware of H's increased and excessive working hours and his need for assistance.
5. In Daw v Intel Corporation Ltd 2007 IRLR 355, CA, D, an accountant, became vulnerable to psychological injury in the workplace, partly as a result of two periods of postnatal depression. D made twelve attempts to draw her supervisors' attention to her situation of over-work. Little support was given to the employee beyond the offer of a short-term counselling service. The Court found that the employer was partly responsible for the employee's subsequent breakdown: damages were awarded but with a discount reflecting D's vulnerable personality.
6. In Garrod v North Devon NHS Primary Care Trust 2006 EWHC 850, G was a health visitor. The work was stressful and members of the G's team were repeatedly absent from work with long-term illnesses. G herself had a disclosed history of previous breakdowns and had made at least five attempts to draw their employer's attention to the risk of work-related stress. The High Court held that the employer breached its duty of care as it failed to take precautions against what was a foreseeable risk.
Bullying
Bullying at work is of growing concern as it can affect the productivity
and morale of workers who are suffering from stress and may leave the
employer liable for damages under a variety of potential claims. Readers
are recommended to read ACAS guide Bullying and harassment at work, which
offers practical advice to employers to help them prevent bullying and
harassment and to deal with any cases that occur, and includes guidelines
for the development of policies and procedures.
A worker who experiences workplace bullying may have a harassment or discrimination claim on the grounds of sex, race, disability, age, religion or belief, or sexual orientation .
A worker may also have a claim in tort for psychiatric injury and under the Protection from Harassment Act 1997 ( see below).
In addition, there could be other implications for employers since bullied members of staff may resign and, in certain circumstances, claim to have been constructively dismissed. Employers should therefore try to ensure workplace bullying is prevented by making workers aware of the issue in staff policies or, when it arises, dealing with it satisfactorily.
If a company procedure exists to address bullying in the workplace, it should be used. However, the procedure does not displace an employer's fundamental obligation to take reasonable steps to ensure that an employee is supported in times of difficulty (Blackburn with Darwen Borough Council v Stanley, EAT case 0429/04).
Protection from Harassment Act 1997
This legislation was originally introduced to provide protection from stalkers, but has been applied to harassment and bullying at work (Majrowski v Guy's and St Thomas's NHS Trust 2006 ICR 1199, HL; Banks v Ablex Limited 2005 CA. It has also been used to restrain aggressive former employees (First Global Locums Ltd and ors v Cosias 2005).
An employee will be able to bring a claimif he is the victim of a “course of conduct” - this means conduct or speech on at least two occasions- that is intentional. Tested objectively the harasser must have known or should to have known the conduct was harassment.
Claims under this act have a very broad definition, that is not as specific
as those in discrimination on the grounds of sex, sexual orientation,
race, religion, belief and disa bility. This is not a personal injury
claim and there is no requirement or threshold of suffering a diagnosed
illness ( e.g. depression). So general anxiety or distress will suffice.The
“injury” does not have to be foreseeable. There is no due diligence defence
and claims can be brought 6 years after the event.
The Protection from Harassment Act 1997 makes individuals liable for certain
sorts of misconduct and their employers can be liable for a breach of
that statutory duty, provided the offensive acts or omissions occur during
the course of employment (“Vicarious liability”).
Other seminar papers
- Discipline & Grievance Rules April 2009
- Privacy in work place
- Sickness in the Workplace March 2009
- Stress at work
- Variation of Terms by Employer
.......................................................................................................................................................
By Peter Miller, Head of Employment Law at Bowling
& Co
62 Broadway, Stratford, London E15 1NG
Tel: 020 8221 8000 Fax: 020 8519 5504
Direct Telephone: 020 8221 8065
Email: Peter.Miller@bowlinglaw.co.uk
Website: www.bowlinglaw.co.uk
This Article is written as a general guide and is not a substitute for
professional advice.
You are strongly recommended to obtain specific professional advice before
you take any action.