Stress remains very topical, whether it be the number of days lost or the cost in terms of sick pay, even before considering the cost of managing the absences.
Since the 1985 case of Walker v Northumberland County Council, the tide has turned in relation to the number of successful occupational stress claims based on overwork.
In 2002, the case of Hatton v Sutherland came before the Court of Appeal. The case set down important guidelines covering this area of law, stating that ordinary principles of liability and negligence applied. Notably, the Court of Appeal shifted the burden onto an employee to be in charge of their own mental wellbeing and to take action to deal with stress in the workplace by requiring the employee to complain and bring the problem to their employer’s attention.
In the case of Barber v Somerset County Council (2004), the House of Lords approved the guidance given in Hatton. In particular, it confirmed that the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that it should do something about it.
However, recently, in the case of Mark Hone v Six Continents Retail Ltd (2005), the Court of Appeal reduced the burden on the employee.
Hone was a licensed house manager. He claimed his psychiatric injury was caused by stress from working excessive hours without support. He was working between 82 and 92 hours a week.
The employer argued that there was no prior history of mental illness, Hone had no absences from work in relation to stress, and at no time had he informed anyone – including his immediate supervisor – that his health was being affected.
However, the Court of Appeal said that this was not sufficient to ‘save’ the employer as it knew that Hone had been working very long hours – Hone’s records showed that he was working 90 hours per week and the employer should have seen this as a cry for help. Hone had specifically mentioned in a meeting that he was feeling tired and had also been asking for an assistant manager for a considerable time.
While the case did not decide the point, it was argued on behalf of the claimant that working more than 48 hours per week was in breach of the Working Time Regulations. Since no opt-out had been signed, this in itself gave rise to a discreet civil claim against the employer.
Importantly, this case shows that whether or not the employer has any knowledge of the employee’s mental or physical health and medical history is no longer so important.
If employees are working in excess of 48 hours per week, then the opt-out under the Working Time Directive must be signed. In cases where employees are submitting forms indicating an abnormal working pattern in terms of the number of hours and days worked, you should make enquiries to determine whether or not steps need to be taken to provide assistance to those employees.
Ensure employees are aware of what they should do if they are becoming stressed. It helps if you document that they have been provided with a copy of your stress policy.
Also, the Health and Safety Executive Management Standards, which came into force in November 2004, impose a duty to seek out and assess jobs with an exposure to stress.
Learning points for HR
Ensure that staff likely to work more than 48 hours a week have signed the opt-out under the Working Time Directive.
Analyse data in relation to hours worked by staff for unusual patterns, and make enquiries where necessary.
Ensure any meetings are properly documented, remembering that such documents are likely to be disclosed as part of any civil proceedings.
Have a documented policy for dealing with stress and ensure managers and employees are aware of it.
Make staff aware of any occupational health facilities that are available, along with any counselling helplines.
At the first hint that the circumstances might lead to a claim, notify your employer liability insurer. It is much easier to deal with a stress claim early on.
For Q&As on stress, go to www.personneltoday.com/32775.article
Roddy Macleod, Partner, Weightmans