Fair procedure alone goes nine-tenths of the way towards avoiding liability
for unfair dismissal, and legal rulings have been setting realistic limits to
employers’ obligations
‘He’s been signed off with stress.’ These fateful words seem to trigger fear
in the hearts of even the most battle-hardened HR practitioners. But do you
remember repetitive strain injury (RSI) and employers’ reactions to an
‘epidemic’ that was tinged with hysteria? Once the dust had settled, it became
clear that even though RSI really did exist, employers could readily avoid
legal liability by taking sensible precautions, such as work-station risk
assessments.
Workplace stress has become the RSI of the day. Do businesses need to take
it seriously? Certainly. Does it need careful and well-informed management by
employers? Definitely. But in legal terms, as Dad’s Army’s Corporal Jones would
have told Captain Mainwaring, the clear message is: "Don’t panic!"
In terms of the legal treatment of workplace stress, employers and their HR
management teams should remind themselves that, of late, the tribunals and
courts seem to have been bending over backwards to set realistic limits to
their obligations.
For example, in Morgan v Staffordshire University [2002] IRLR 190, Morgan
put forward medical notes containing the litany (familiar in countless GP
certificates) of references to stress, depression, anxiety and nervousness. In
dismissing her appeal, the Employment Appeal Tribunal had these words of
comfort for employers: "…it is not the case that some loose description
such as ‘anxiety’, ‘stress’ or ‘depression’ of itself will suffice, unless
there is credible and informed evidence that in the particular circumstances,
so loose a description nonetheless identifies a clinically well-recognised
illness". In other words, stress on its own does not constitute a
disability within the meaning of the Disability Discrimination Act 1995.
Similarly, the landmark decision in Sutherland v Hatton [2002] IRLR 263,
showed that the Court of Appeal intended to significantly limit the scope of an
employer’s legal duty.
The court held that there are no special control mechanisms applicable to
claims for psychiatric injury at work. An employer that offers confidential
access to stress counselling or similar services is unlikely to be found in
breach of duty, unless they had been putting totally unreasonable demands on a
worker – and even then only when the risk of psychiatric harm is clear.
Subsequent cases have followed this ruling. In Morland v London Borough of
Tower Hamlets, IDS Brief 735, June 2003, the employer was held not to be liable
for a school inspector suffering from depression.
Among other factors, the court found there had been nothing in the worker’s
conduct that would have led a reasonable employer to believe his health was at
risk due to work-related stress. In particular, although no formal risk
assessment in relation to stress had been carried out, the borough had devised
effective methods of supervising and monitoring the work done by its
inspectors.
In the context of disciplinary action for staff absent from work for reasons
related to stress, the main thrust of the decided cases is that the employer
who operates a fair procedure is nine-tenths of the way to avoiding liability
for unfair dismissal. It is important to identify the potential reason for fair
dismissal at an early stage. It is most likely to be ill health in cases of
long-term absence, or a substantial business-related reason in cases of
intermittent absence, depending on whether or not the investigation indicates
that the worker is malingering.
Because absence due to stress straddles issues of capability, conduct and
business efficiency, employers should consider adopting procedures specifically
directed at the management of stress-related absences.
By Michael Bronstein, Employment partner, Salans
The author can be contacted on 020 7509 6000 or at mbronstein@salans.com
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