Doing your duty towards the vulnerable employee

Michael Leftley looks at some typical stress-related scenarios to illustrate
the problems that can occur and the steps responsible employers should take to
avoid embarrassing and expensive payouts

Scenario 1

Alan is employed in the post room at a large export business. He is
inexperienced in the job and is given inadequate training. As a result he makes
mistakes and is bullied by his manager and other colleagues. Alan’s complaints
to senior managers fall on deaf ears and he soon begins to suffer from panic
attacks, mood swings and low self-esteem. He has a history of medical illness,
and makes an appointment to see his doctor, who diagnoses stress.

Michael Leftley comments:  Stress can loosely be defined as an adverse reaction to excess
pressure. However, the fact that an employee suffers from stress does not
necessarily mean they can bring a claim against their employer. To bring a
claim the employee must show that the stress is a consequence of the employer’s
unlawful conduct towards them. In this scenario the two obvious potential
claims are personal injury and unfair dismissal.

The personal injury claim can be difficult to prove. It is not enough for
Alan merely to be showing signs of stress. He must have the backing of medical
evidence which establishes that he suffers from a recognised psychiatric
illness. So, for example, if his low self-esteem and mood swings lead to a
recognised psychiatric illness such as clinical depression ,then he will have
overcome that obstacle.

Alan’s employer owes a duty to take reasonable care for his health and
safety, and Alan will need to show that they have breached that duty. The fact
that he has a previous history of mental illness, the fact that he is inexperienced
and that he raised complaints suggest a potential breach, since it appears his
employers failed to take steps to help him. This is a classic case where the
employer should have taken preventative measures at an early stage.

There is also a potential claim for constructive unfair dismissal, should
Alan decide to resign in response to this obvious lack of support. Bullying,
lack of training and lack of management can all give rise to claims for unfair
dismissal, and they are often at the root of many stress-related claims.
According to an academic survey supported by the TUC and the CBI, bullying
contributes to the loss of 18 million working days in the UK each year, and
employers need to have procedures in place which not only protect victims but
which deal properly with those responsible for the bullying.

Scenario 2

June is one of a team of four who work in the accounts department of a large
engineering firm. She has been off work for several months with ME, and doctors
recommend that she eases her way back into work. June asks permission to work
on a temporary part-time basis from home, but her employers are not
particularly sensitive to her needs. She feels she can’t cope and subsequently
resigns, bringing a claim of disability discrimination against her employers,
who have made no special arrangements to accommodate her requirements.

Michael Leftley comments:  Stress at work is a common source of disability discrimination
claims. To qualify, an employee needs to satisfy the definition of disability
as set out in the Disability Discrimination Act. In the context of
stress-related illness, it amounts to showing a mental impairment which has a
"substantial and long-term adverse affect on a person’s ability to carry
out day-to-day activities".

In cases like this, where an employee is returning to work following
long-term sick leave, employers are under a duty to make reasonable adjustments
to help the recovering employee get back to work. In June’s case, her employers
have not made any special provision either by supporting her in the office
environment or by allowing her the opportunity to work from home as a means of
rehabilitation; these are matters which they should have considered carefully.
June would not need to resign to bring a claim (although whether or not she
resigned would affect the amount of compensation she would receive if she were

June might also be able to claim constructive unfair dismissal on the basis
of inadequate support from her employer. Unlike for the discrimination claim,
however, she would need to resign, and in so doing make it clear that it was in
response to the lack of support.

Scenario 3

Bob is employed as a manager of a large DIY store, and often works more than
60 hours a week. He complains of being overworked and particularly stressed
during busy periods, and is aggrieved that his contract requires him to work
only 40 hours a week. He has signed an agreement opting out of the 48-hour
week, but As a health and safety measure, the has almost reached breaking
point, and threatens to resign unless his hours are reduced.

Michael Leftley comments:  Working
Time Regulations 1998 impose limits on the number of hours which employees can
be expected to work, and place a duty on employers to take care of their
employees’ health.

Employers need to be aware that any employees who may have opted out of the
Working Time Regulations are still owed the same duty of care as those who have
not opted out. In this case, unless his employers agreed to reduce his hours,
Bob could resign and bring a claim for constructive unfair dismissal on the
grounds that his employers are not taking reasonable steps to care for his
health and well-being.

This lack of care would also give Bob the right to claim for breach of
contract. There is an implied term in the contract of employment that an
employer will take reasonable care for an employee’s health and provide
adequate support. The steps required by individual employers will depend on
their particular circumstances, but might include:

– providing protective clothing and warning of the dangers of not wearing
– reducing the workload;
– taking steps to discipline a bully at work;
– keeping up to date with developing knowledge and safety risks;
– taking greater care of susceptible employees.

In this case it is obviously the failure to reduce the workload which is the
employer’s mistake. n

Michael Leftley is a partner in the Employment Department at Addleshaw
Booth & Co

Key points

Recent changes in legislation, media interest and the attitude of tribunals
and courts has helped employees become more aware of their rights and more
confident about bringing a claim. Recent payouts reported in the press provide
a useful guide to the level of compensation paid in stress cases. They also
serve as an important reminder to employers that they need to be conscious of
the welfare of any employee who works in a potentially stressful environment,
and have appropriate safeguards in place to protect those most likely to be at

Comments are closed.