Stress, stress, go away

Coping with stress is a part of the daily strategy of life management. In 2002, the Court of Appeal gave important guidance about proper practice that employers should follow in stress claims. In summary, risk assessment is required as a pro-active step under health and safety regulations, and in civil cases as employers owe a duty of care to their employees to take reasonably practicable steps to maintain a safe workplace. Stress assessments should cover workload and factors such as bullying, harassment and other discrimination issues. Acas recently updated its guidance on dealing with bullying.(1)

Court of Appeal guidance

There are no special control mechanisms applying to illness or injury arising from the stress arising from the work an employee is ordinarily required to do.

OH practitioners will be delighted to learn that the legal view is that no occupation should be regarded as intrinsically dangerous to mental health. The correct approach is to identify the individual’s propensity to an adverse stress reaction, balanced against their willingness to do the job.

Employers are generally entitled to take at face value what employees say unless there are good reasons to think to the contrary. An employee who professes to be fine will not trigger the need for “searching enquiries of the employee or… permission to make further enquiries of his medical advisers.”

It is useful for an employer to offer confidential advice, counselling or treatment services. Even if the employee is at risk, there will be no breach of duty to allow a willing employee to continue in the job.

Occupational stress must be considered in relation to external factors with liability accruing only for “that proportion of the harm suffered which is attributable to [the employer’s] wrongdoing, unless the harm is truly indivisible.”

Casebook

Recent cases reflect the position taken in Stokes v GKN (Bolts and Nuts) Ltd [1968]1WLR 1776. GKN’s medical adviser failed to alert them to the risk that employees’ overalls, being steeped in carcinogenic mineral oils, were likely to cause scrotal cancer. It appears that the doctor did not want to cause undue alarm. GKN was imputed with knowledge that had not been provided.

“The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know… where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it… if he has fallen below the standard… he is negligent.”

Bearing the Stokes case in mind and the principle of ‘knew or ought to have known’, let us fast forward to the law as it stands today.

Barber v Somerset County Council [2004] IRLR 475 HL
(Appeal from the 2002 Court of Appeal decision headed by Sutherland v Hatton)

The outcome of the County Court cases was Employers 0: Employees 4. After the Court of Appeal set out its guidance the result was Employers 3: Employees 1. Barber appealed to the House of Lords, who restored the County Court’s decision in his favour on the specific facts. The final score is therefore 2:2.

In the Sutherland v Hatton case, Hatton was a teacher who became depressed and took several lengthy absences over the next couple of years for personal and family reasons. Within a year of seeing a stress counsellor, to whom she did not report symptoms, she went sick with depression and did not return to work. The Court of Appeal upheld the County Court’s view that Hatton’s condition was not reasonably foreseeable given the nature of her workload and the reasons for and pattern of absence.

Barber, a teacher, was one of several who were overworked. He did not report initial symptoms of depression. He eventually took three weeks off work but found things difficult on his return. He was depressed during the summer vacation. When term began, the head teacher asked a colleague to keep an eye on Barber. Within two months, Barber had a breakdown and was advised to stop work immediately.

He won in the County Court but the Court of Appeal disagreed on the basis that the employer could not have been expected to realise that Barber’s problems were continuing as he had not informed the school how he was feeling. There was therefore no duty to take steps to prevent the occurrence of his psychiatric injury.

In April 2004, the House of Lords said Sandwell MBC v Jones was a borderline case but agreed with the County Court, who had made findings of fact.

Jones worked excessive hours, effectively doing the work of two or three people. She asked for help but when it was given, it was immediately diverted by her manager who dismissed her complaints about this behaviour. Jones became depressed. During sick leave, she was made redundant.

The Court of Appeal upheld the finding of liability on the basis that the employer could have done something to reduce the workload, which would have prevented the psychiatric injury. The employer did not appeal this decision. Damages awarded by the County Court were in excess of 150,000.

The Baker Refractories v Bishop case went the same way as that of Hatton – the parties accepting the Court of Appeal’s decision: if the employer did not know there was a problem, it could not avoid the damage that happened.

The Court of Appeal’s process was followed in Bonser v RJB Mining (UK) Ltd, CA, [2004] IRLR 164, a case concerning a woman who had an episode of depression. She also had a history of severe pre-menstrual stress and a background of domestic problems.

About eight years after the first illness, she had a nervous breakdown and went on sick leave, with dismissal a year later. The Court of Appeal overturned the lower court’s decision, which was in her favour. Her reaction to stress was not reasonably foreseeable as the additional workload which she said was stressful to her applied to the whole team. This was not sufficient to make the assumption that she would have a breakdown.

Essa v Laing Ltd [2004] IRLR 313, CA

Essa is Welsh, black and of Somali origin. Laing did not take his grievance seriously about deeply offensive racial comments made to him by his foreman. The tribunal awarded 5,000 compensation for injury to feelings but only three weeks’ loss of income in respect of profound depression and inability to find work on the grounds that the reaction was extreme and irrational and the employer could not be liable for something that was not “reasonably foreseeable.”

The Employment Appeal Tribunal held that there was no requirement in a race discrimination case for the applicant to show that the type of injury suffered was reasonably foreseeable. The employer’s appeal to the Court of Appeal was refused. The majority held that compensation should cover all harm which arises naturally and directly from the act of discrimination.

British Telecommunications v Reid [2004] IRLR 327, CA

Reid, of Afro-Caribbean descent, was a BT employee stationed at St Albans. There were acrimonious disputes between Reid and two colleagues, including serious racial insults against Reid, who was distressed and left work before the end of his shift on the last occasion. He was disciplined for leaving early. His grievance about racism was not upheld. He was moved to avoid problems.

Pending the resolution of the appeal (which lasted 14 months) against the grievance finding, one of the tormentors was promoted above Reid.
The tribunal upheld Reid’s claim of race discrimination and awarded 6,000 for injury to feelings plus 2,000 aggravated damages because the main tormentor had remained in post unpunished and moreover had been promoted. EAT upheld both awards.

The Court of Appeal upheld the EAT. The time taken to resolve the grievance was relevant to an award of injury to feelings because it can prolong the injury. The promotion of the tormentor during the prolonged grievance procedure added insult to injury.

Paul v National Probation Service [2004] IRLR 190, EAT

The employer dealt with a job applicant on the base of avoiding stress but was then held liable for disability discrimination. Paul had a history of chronic depression exacerbated by stress. The employer’s OH practitioner advised that he was not fit to work with people on probation because it was stressful. His application was unsuccessful.

The EAT said that an OH assessment should not lead to a refusal of employment unless the particular disability affects the individual’s ability to do the job and reasonable adjustments will not alter the position or could not be made. The shortfalls in the OH report included no current psychiatric evaluation; ignoring Paul’s report that his psychiatrist encouraged him to work; and no suggestion of the adjustments that were in fact made for the fit person who was appointed.

Dunnachie v Kingston upon Hull City Council, July 2004, HL

Stressful as it is to be dismissed, awards are confined to financial losses. There will be no compensation for non-economic losses such as injury to feelings.

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head of training and education for ACT Associates Ltd and Virtual Personnel, of which Joan Lewis is the senior consultant and director. These employment law and advisory service consultancies are licensed by the General Council of the Bar in employment matters under BarDirect. Telephone 020 8943 0393.

Reference
1. www.acas.org.uk/publications/AL04.html


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