Stressing the positive

Risk
assessment should not only aim to reduce the occurrence of accidents in the
workplace but also psychological illness in accordance with current law.  By Linda Goldman and Joan Lewis

Certifiably
stressed

OH
professionals are familiar with medical certificates for "stress" or
"stress-related illness". Where the illness is long-term, the
affected individual may claim to be disabled within the meaning of the
Disability Discrimination Act 1995 and therefore to require adjustments to the
workplace or system of work to enable them to cope with their disability on
returning to work.

The
test for disability where there is a psychological disorder is first that the
illness be a recognised medical condition and second that the condition has a
substantial effect on the ability of the individual to carry out everyday
activities. The fact that a person is unable to carry out work of a particular
kind or for a particular employer is not sufficient to render a person disabled
within the meaning of the Act.

The
diagnosis

The
World Health Organisation international classification of diseases – ICD-10:
Classification of Mental and Behavioural Disorders, Clinical Descriptions and
Diagnostic Guidelines – has no category listed as "stress" or
"stress-related illness". Section F43, however, is headed
"Reaction to severe stress and adjustment disorders", indicating that
stress is an aetiological factor, separate from any diagnosis or prognosis.

An
acute stress reaction is, by definition, of short duration and in relation to a
specific event, although not all victims suffer such a reaction. Some stressors
lead to chronic conditions of varying degrees and duration.

Removal
of the stressor generally leads to recovery although a chronically stressful
environment may require greater change. OH professionals should remember that,
unless a diagnosis is for a recognised illness, calling a condition
"stress" is the equivalent of calling a sprained ankle  "slippery floor" or
"trip".

Risk
assessment

Consider
whether it is foreseeable that stress factors could cause significant long-term
illness. In legal terms, intolerable stress levels could give rise to claims
for discrimination, breach of contract and personal injury. Also, an employee
who is unable to cope with stress may leave and claim constructive dismissal.

Litigation
risk exposure may be reduced by a competent risk assessment which takes account
of stressors and advises individuals on coping with unavoidable stress.
Remedial steps such as counselling may be useful but it may also be helpful to
recommend pro-active arrangements such as assertiveness training or further
education.

It
is crucial that allegations of stress or bullying are investigated fairly and
objectively. It is often helpful to use a third party consultant to conduct
such an investigation.

Risk
assessments should cover factors which could cause psychological illness but
physical implications should not be ignored since the physiological reactions
to stress appear to increase levels of susceptibility to minor infections and
musculoskeletal disorders. In the medical model of the workplace, it is
essential to attain a moderate level of stress, which provokes alertness, as
against an unacceptable level which could cause increased levels of
work-related illness. 

Causation

In
any legal action arising out of stress overload, it is important for the
claimant to show that the illness was a direct result of factors which the
employer knew or ought to have known about. The common psychological stressors,
reflected in recent cases, relate to employees being required to work to an
unusually high level of demand, whether in hours, skill requirements or changes
in working patterns, management or colleague support.

Some
stressors, such as bullying, are difficult to identify: physical bullying will
be covered by a wall of silence put up by its protagonists. Some forms of
non-physical bullying are identified by management as being robust applications
of maintaining job output or standards. That form of work pressure is subtle
but dangerous and should be investigated.

Prevention
is better than cure

The
employer is under statutory and common-law duty to maintain a safe environment
and system of work. The Health and Safety at Work Act 1974 requires a health
and safety policy which is updated regularly to take account of the current
emphasis in psychological criteria.

From
there, the next step is risk assessment under the Management of Health and
Safety at Work Regulations 1992. Given the interest in psychological safety at
work, bullying and other demands on the mental health of employees should be
rated of equal importance to physical risk factors. These assessments will
reduce the risk of litigation only if action is taken to correct defects. 

If
steps were not taken to prevent a reasonably foreseeable injury, the injured
person is likely to be awarded damages for physical as well as psychological
injury, provided that the injury is significant. Long-term illness cases pose
the greatest financial risk to the employer who needs to balance judgement when
looking at someone with repeated bouts of sick-leave certified as
"stress". Either the individual is an oversensitive malingerer or
someone who is at the early-warning stage of illness, sending out a very strong
warning signal that all is not well at the workplace and that direct
intervention – always cheaper than litigation – is needed.

Linda
Goldman is a practising barrister at Lincoln’s Inn. Joan Lewis is director of
Advisory Consulting and Training Associates, Nr Wing, Bucks.

Case
Roundup

Walker
v Northumberland County Council [1995] IRLR 35

This
well known case is worth repeating as it is often thought that the social
worker had a straightforward win. In fact, he sued his employer for damages in
respect of two nervous breakdowns as a result of working excessive hours
without adequate support.

The
Court held that although the conditions of his job were stressful, the first
nervous breakdown was not reasonably foreseeable although the employer was held
liable for the effects of the second break down as by that time the employer
should have known he required support.

The
matter was settled out of court for about £175,000 before appeals were heard.
The employer appealed against the decision that it was liable for the second
breakdown and the employee disputed the fact that the first breakdown was not
the fault of the employer.

Bradley
v London Fire and Civil Defence Authority [1995] IRLR 47

The
High Court confirmed that a pension was payable for psychological injury
resulting from working conditions. It was held that the ordinary meaning of
"injury" is an impairment of a person’s physical or mental condition.
Bradley was claiming a pension payable through his employer’s scheme where a
firefighter is permanently disabled as result of an infirmity of mind or body
occasioned by a "qualifying injury" – an injury or disease received
in the execution of his duties.

The
injury was whiplash sustained in an accident on the way to work. Continuing
symptoms caused him to become anxious and depressed about his ability to carry
out his work. He was also subject to considerable stress in his work duties.
The medical referee appointed by the Secretary of State, in accordance with the
employer’s appeals procedure, had correctly identified the cause of the illness
as being due to the stresses of work, so that the employee was eligible for the
pension.

Greenwood
v Hertfordshire Social Services, [1999] Case No 1501872/98

The
employee reported sick from work in November 1997 and did not return
thereafter. He presented a series of certificates for "stress-related
illness" for a year, save for two certificates for depression covering a
six-week period.

His
condition deteriorated from November 1998 when he put in a compensation claim
for disability discrimination. The condition subsequently became permanent and
chronic. The tribunal upheld on appeal to the Employment Appeal Tribunal, that
the employee was disabled within the meaning of the Disability Discrimination
Act 1995 at the time he brought the proceedings notwithstanding his ability to
drive 75 miles at a time and to undertake mechanical repairs to a motor
vehicle. The deteriorating nature of his condition, probably depression, in
November 1998 and his difficulties in concentration brought him within the
definition of disabled.

Benson
v Wirral Borough Council [1999] National Press Reports

A
head-of-year teacher accepted an out-of-court settlement of £47,000 when she
took early retirement due to stress-related anxiety and depression caused by an
increasing workload. Benson complained that her employer failed to give her any
support.

The
teacher ran a course which was heavily subscribed. She sought support from the
school administration but was told she was a victim of her own success and
would have to manage on her own.

Where
a case is settled out of court, it does not form a precedent on which future
cases can rely. However, each illness has a "value" for which broad
parameters are set in the Judicial Studies Board Guidelines, published
annually. The guidelines suggest the following factors are considered:


ability to cope with life and work


effect on relationships


whether medical help has been sought and effect of treatment


future vulnerability


prognosis

The
decision to settle the case may have been taken to avoid the further stress of
a court hearing.

In
any case, she had to take early retirement and probably suffered moderately
severe damage for which the guidelines suggest awards between £15,000 and
£17,500. The remainder of the settlement would have been loss of salary up to
the expected date of retirement.

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