THE
CHALLENGE: Two employees, Sarah and Ben, are absent with stress- related
illnesses. Sarah intends to bring a claim for personal injury, saying stress
was caused by her work. Ben wishes to return to work although his GP states he
is not yet fit to carry out full-time duties. Is the company liable for
stress-related illness? Is it at risk by allowing Ben to return to work?
Legal
issues
The
company has a duty to take reasonable care of the health and safety of
employees in its workplace. This duty arises under common law relating to
negligence. In any personal injury claim the employee will have to show that an
employer has breached that duty and that it was reasonably foreseeable that an
injury would result from that breach.
In
the case of Sutherland v Hatton, 2002, IRLR 263, the Court of Appeal held that
the company is entitled to assume that employees are up to the usual pressures
of the job, unless there are clear indications to the contrary. So in most
cases the company will only become liable to a claim for personal injury where
the employee makes it known that the work is having a detrimental effect upon
their health. Whether Sarah will be able to successfully make a claim for
damages will depend upon whether the company did, or should have known, that
there was a risk to her health.
In
the case of Young v Post Office, 30.4.02, CA, unreported, it was held that a
company had been aware that there was a risk to the employee’s health where he
had returned to work following a stress-related absence (see Case Roundup,
opposite).
It
had breached its duty of care when it failed to ensure the employee did not
carry out excessive work again. This is despite instructions that he should
only carry out such work as he felt able to do. In Ben’s case the company would
have to take all reasonable steps to ensure that he was not subject to stress
when he returned.
It
was also held in Young, that no account of contributory negligence could be
taken into account so as to reduce the compensation awarded where the employer
had not taken sufficient steps to avert the injury. A vulnerable person should
not be expected to adequately gauge the limits of their working capacity.
The
Management of Health and Safety at Work Regulations 1999 require the company to
carry out a risk assessment for their employees that will include consideration
of whether there is a risk of employees developing a stress-related illness. Â
HR
issues
Every
company should have a risk assessment policy to identify if there are hazards
related to any particular post. The Health and Safety Executive’s guidance on
risk assessments highlights seven factors that should be addressed – culture,
demands, control, relationships, change, role and support. Â
The
company should make managers aware of the typical warning signs of stress and
stipulate what is expected of management in these circumstances. Clearly, where
an individual has already been absent from work with an illness that is
stress-related the company should consider this as a warning.
A
policy of reviewing posts should be undertaken. This should assess the nature
and extent of work done by an employee and ensure that workload is not greater
than is normal for a particular job. It is important for the company to be able
to show that the demands being made of an employee are not unreasonable when
compared with the demands made of others in the same or comparable jobs.
It
is important that wherever possible the company offers a confidential advice
service with referral to appropriate counselling or treatment services. In this
instance the company would be unlikely to be in breach of its duty of care.
The
policy needs to identify steps that can be taken to reduce the risk of
employees suffering harm. Only ‘reasonable’ steps are required, so when
assessing this the company will be able to take into account resources, costs
and practicalities, the interests of other employees, and the likelihood and
degree of harm.
Examples
of steps that may be referred to in the policy should include sabbaticals,
transfers to other work, redistribution of work, additional help, treatment and
counselling and supervision.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Where
an employee requests to return to work and there is medical evidence to suggest
that they are not fit to do so, care should be taken as the company would be
liable if the employee subsequently became ill because of their return to work.
Consideration should be given to suspending the employee on full pay pending
medical reports as to the extent of the risk and appropriate limitations on
their duties.
By
Sue Nickson, partner and national head of employment law at Hammond Suddards
Edge
