Death by overwork

An
increasing body of opinion suggests that stress can kill, so employers turning
a blind eye to stressed staff are likely to be given short shrift by the
courts, by Paul White and Charlotte Hamer

Stress causes the loss of 6.5 million working days a year according to
research published by the Health and Safety Executive in July 2001. More
recently, The Times (28 August 2001) reported on an increasing body of opinion
suggesting that stress can kill.

For some time it has been recognised that stress may exacerbate conditions
such as heart disease, strokes and cancer, but there has been little evidence
of stress being the cause of death. However, the case of junior doctor Alan
Massie, who died after working an 86-hour week, has highlighted "sudden
adult death syndrome", where apparently fit and healthy young adults
suddenly drop dead. His parents believe stress killed him.

Successful claims for damages

The number of employees successfully claiming damages for stress-related
illnesses is growing steadily. Judith Unwin, a part-time teacher in West
Sussex, was recently awarded £2,500 for the aggravation of her depressive
illness, when her local authority failed to monitor her health even though it
was aware she was suffering from stress.

Jane Witham was awarded £140,000 after her employer, Hastings and Rother NHS
Trust, was held to have subjected her to extreme stress following her return to
work after maternity leave, even though it was aware she had suffered from
post-natal depression.

Worcestershire County Council has had to pay almost £500,000 to four
employees in the past 18 months for stress-related claims – the most recent
involving Theresa Conway, a former social worker, who was awarded £140,000. She
regularly worked between 70 and 80 hours a week as the deputy manager of a
residential home for the elderly when the manager left and the council even
ignored inspectors’ recommendations that the home needed a permanent,
experienced manager.

Despite such cases, there are legal hurdles for staff to clear in order to
prove that an employer has caused stress and/or psychiatric injury. These
hurdles are principally "causation" (ie proving that the stress caused
the condition) and "fore see ability" (ie, that a reasonable employer
should have foreseen the risk).

Lyn Armstrong, for example, a former prison officer who was assigned to
Rosemary West prior to and during her trial, claimed that the experience caused
her to suffer post-traumatic stress disorder and should have been prevented by
her employer. The High Court rejected her claim on the grounds that it was not
reasonably foreseeable that she would suffer psychiatric injury as a result of
her duties.

Employers should not seek to hide behind these hurdles indefinitely,
however. There is a growing body of evidence linking workplace stress to
serious illness, which reduces the causation difficulties. Furthermore, the
courts are increasingly willing to accept that stress-related illness was
"foreseeable" and will give short shrift to companies turning a blind
eye to stressed staff.

Employers should ensure that staff are properly trained, not working
excessive hours and not being bullied.

Signs of stress

Staff showing signs of stress (frequent sickness absences, inability to cope
or make decisions) should not be ignored. Sickness reporting procedures should
identify illness patterns while anti-harassment policies and grievance
procedures should allow staff to raise concerns. Flexible working may also help
to cut stress by allowing staff to balance their home and work lives.

Stress is a serious issue and it is only a matter of time before an employer
is sued for karoshi – the Japanese term for causing death by overwork.

Paul White is a senior associate and Charlotte Hamer is a professional
support lawyer (employment and pensions group) at City law firm Stephenson
Harwood

Understanding the Data Protection Act amendments

By Sarah Lamont

Changes to the Data Protection Act came into force on 23
October.  These changes affect both
employers and employees.

To understand the Act, there are
certain key definitions. These are:

Data subject An individual who is the subject of
personal data

Data This includes information processed by equipment
(e.g. computers) and information recorded as part of a relevant filing system

Personal data Any information relating to an identified
or identifiable person

Processing Any operation performed upon personal data,
whether or not by automatic means

Data controller A person who determines the purposes for
and the manner in which personal data is processed.

The main changes that came into force
on 23 October are:

Manual data Individuals can access non-automated records
not covered by an exemption (see below). This will cover structured sets of
information that are readily accessible – not necessarily synonymous with an
individual’s personnel file

Personal data Previously where
a name was incidental to a document, that name, though clearly personal data,
was not subject to the Act. This qualification has disappeared

Subject access Data subjects
now have to be provided with a copy of the data that concerns them and should
also be told the purposes for which the data is processed; they should be given
any available information as to the source of the information and be given a
description of those to whom the data has or may have been given.

Individual rights Individuals
now have the right to seek to prevent "processing" likely to cause
damage or distress, the right to prevent "processing" for the
purposes of direct marketing and a qualified right to object to automated
decision taking.

Compensation can be claimed for damage caused by the failure to
comply with any obligations of the Act and will cover financial loss and
damages for distress.

Personal data is exempt from disclosure in limited
circumstances, for example:

– To prevent or detect crime

– To assess or collect tax

– When the data relates to the physical health or mental state
or condition of the data subject

– When the data is protected by legal professional privilege

What impact will the Act have on
employers?

The key change is that employees can now access paper records
such as confidential notes or memos concerning them written by their
supervisors. This includes information concerning them sent by e-mail, even
where messages have been deleted.

Confidential references supplied by employers remain private
but as employees can request a copy from the recipient, employers should ensure
the references are fair and accurate.

A new category of sensitive personal data has been established,
which covers physical and mental health, ethnic origin, sexuality, and trade
union membership. To process this data the employer must explicitly obtain the
data subject’s consent or be able to show that it is necessary under the Act.

Employers need to take extra care if the disclosure identifies
a third party. The consent of that third party will need to be obtained
beforehand. If consent cannot be obtained, disclosure may be avoided but
employers will need to have made reasonable efforts to obtain that consent to
rely on this exemption.

Sanctions

The Act has been referred to as a "toothless sop".
However with sanctions of a £5,000 fine in the magistrates court, an unlimited
fine in the High Court, and imprisonment for defaulting directors, employers
would be wise to ensure they comply with its requirements.

Guidance

The Information Commissioner has provided guidance to help
those holding personal information comply with the Act. It is at: www.dataprotection.gov.uk. A code
of practice on using Personal Data in the employment relationship is due to be
introduced in four stages during 2002.

By Sarah Lamont, a partner at
Bevan Ashford Solicitors

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