The statutory disciplinary and grievance procedures introduced by the Employment Act 2002 – now being repealed by the Employment Bill currently before parliament – have tended to encourage litigation over work-related stress rather than prevention. Occupational health professionals, rather than the legal profession, should play the key role in resolving such disputes, using available work-related stress assessment and management tools. These were two of the conclusions of a Royal Society of Medicine occupational medicine seminar held in London in April.1
Anne Pritam, a partner at Stephenson Harwood, told the meeting that managers who do not engage effectively with their workforce or who fail to commit time to stress complaints, believing the issue to be of secondary importance, are often ignorant or fearful of dealing with the problem and confused over the processes that can be followed. Combined with the cumbersome statutory dispute resolution procedures, this explains the increase in litigation in this area over the past three years, she said.
Since 2004, an unwieldy dispute resolution process has locked disputants into formal grievance procedures from an early stage. Whereas many workers may simply wish to air a grievance and seek improvement or help, they are instead pushed into what is effectively a legal process from the outset. The presence of no-win, no-fee lawyers has increased the level of litigation and often been a block to out-of-court settlements, Pritam said. On the employers’ side, the practice of handing cases over to insurance lawyers makes future litigation more likely, since bad management is shielded from its own mistakes and is not required to improve its processes.
The body of relevant case law that now exists was reviewed by Pritam. Until the 1990s, the law on employer duty of care focused on physical damage, effectively excluding stress. The turning point was Walker v Northumberland CC  IRLR 35, which concerned a manager handling child abuse cases who suffered a nervous breakdown due to his workload. After his breakdown, the plaintiff had been promised help but this failed to materialise and he suffered a second breakdown. The judge rejected Northumberland County Council’s claim that it could not have foreseen its employee’s psychiatric injury, pointing to its undertakings following his first breakdown. He also rejected their claim that the plaintiff had been peculiarly vulnerable to stress, arguing that an employer’s duty of care is raised if an employee is known to be more vulnerable.
Following Walker, employers’ duties were more clearly defined in Sutherland v Hatton  IRLR 263. The court decided that the key question was whether harm was foreseeable to a particular employee. It decided that no occupations are intrinsically stressful and that employers are entitled to take employees “at face value”. It also suggested that employers who offer a confidential advice service with referral to counselling might be protected from liability.
Majrowski v Guy’s and St Thomas’s  IRLR 695 HL extended potential employer liabilities. Mr Majrowski was bullied by his departmental manager, in part because he was gay. The House of Lords ruled that employers have vicarious liability for harassment by their employees – removing the defence of taking “reasonable steps” and obliging an employer to act immediately.
The precedent of Majrowski was used in Green v Deutsche Bank  UKHL 34, which resulted in damages of £828,000 being awarded. Ms Green suffered two breakdowns following a campaign of victimisation by co-workers. Her employer offered stress counselling after the first breakdown but the court found the bank liable, despite its having provided an employee assistance programme (EAP). It also found the company at fault for failing to have proper systems in place to detect and prevent workplace harassment.
The ruling that provision of a counselling service does not absolve an employer of responsibility was underlined in Intel Corporation v Daw  EWHC 1097 (QB), where the plaintiff had suffered a breakdown due to excessive workload. She had repeatedly complained to her employers about stress and they had offered counselling, but the Court of Appeal ruled that providing an EAP is not “a panacea by which employers can discharge their duty of care in all cases”. The ruling also implies that personal knowledge of an employee’s vulnerable condition is also relevant to the duty of care.
Dispelling myths about malingering
The second speaker at the RSM meeting, consultant occupational physician at Gloucestershire County OH service, Dr Charlie Vivan, challenged the claim that much modern sickness absence is due to malingering. This was a misapplication of the traditional, mechanistic biomedical model that considers only pathology, diagnosis according to symptoms and treatment leading to patient recovery, he said.
It is now accepted that this paradigm cannot be applied to the majority of unexplained complaints presenting to GPs today – such as chest pain, fatigue, dizziness and insomnia. Vivan reiterated the principles of the more appropriate biopsychosocial model of illness that considers both biological and psychological symptoms and social factors, and considers patients’ beliefs and attitudes as well as their symptoms. The work of Waddell and Aylward (well reported in past issues of this journal2), provides the explanation for much contemporary illness, Vivan said for example, for the paradoxical experience of back pain-related sickness absence in recent years. While the level of manual handling has halved since the 1950s, the number of back pain problems reported has remained constant, while the level of back pain-related incapacity has grown exponentially.
A combination of counselling, coaching, assessments and cognitive therapy and similar techniques are the tools that occupational physicians should be using as part of a more proactive involvement in sickness absence management and rehabilitation, Vivan said.