By Sue Nickson, a partner and national head of employment law at Hammonds
Q What issues are raised by the Health and Safety Executive’s (HSE)
decision to issue an improvement notice to an NHS trust for work-related
stress?
A Under the Health and Safety At Work Act 1974, the employer has a
duty to ensure as far as is reasonably practicable the health, safety and
welfare of its workers. Subordinate regulations require the employer to carry
out a risk assessment in respect of potential harm to staff as a consequence of
carrying out their job.
The HSE recently issued its first-ever enforcement notice requiring an
employer to carry out a risk assessment for the exposure of staff to stress in
the workplace. It was issued to West Dorset General Hospital Trusts following
complaints of bullying and long working hours. Failure to comply with the
notice could lead to large fines, or even prison sentences for senior
executives.
Q What should employers do?
A Employers should monitor staff with a view to determining whether
there are any issues that may give rise to additional pressure or stress at
work, such as workload. This should take the form of an initial risk
assessment. Systems should be in place for identifying and minimising stress
and employees should be given opportunities to discuss any concerns and
encouraged to ask for help.
The HSE is running a pilot on management standards for reducing and dealing
with workplace stress. The draft standards identify six areas – demands,
controls, support, relationships, role and change – and provide targets to be
achieved by employers in each one. The HSE hopes to formalise the Management
Standards in 2004 following the pilot, but it is encouraging employers to apply
the standards now to help reduce workplace stress.
Q When will an employer be liable for personal injury arising from
work-related stress?
A Every employer owes a duty to take reasonable care for the health
and safety of its employees. To establish that the employer is liable for
personal injury caused by stress at work, the employee must show that the
employer has breached that duty.
In the case of Sutherland v Hatton, 2002, IRLR 236, the Court of Appeal held
that unless an employer knows of a particular problem or vulnerability, it is
generally entitled to assume that the employee can withstand the normal
pressure of the job and is entitled to take at face value what the employee
says regarding their ability to cope.
The duty to take steps to alleviate stress arises once the indications of
impending harm are plain enough for a reasonable employer to realise that
something must be done about it. This means the employer will not be required
to take specific steps to deal with workplace stress in relation to an
individual employee unless it is made aware of a problem, or if the
circumstances are such that it ought to have been aware.
As well as showing the employer has breached its duty, the worker must also
show that the injury or illness complained about was a reasonably foreseeable
consequence of that breach. Damages for personal injury can include loss of
earnings.
Q Can an employee claim for constructive dismissal if they resign due to
stress at work?
A To succeed in a claim for constructive dismissal, the worker must
show that the employer breached the implied contractual term that it should
take reasonable care for the safety of its staff.
Constructive dismissal on these grounds was considered by the EAT in the
case of Marshall Specialist Vehicles Ltd v Osborne. The EAT held that the
requirements for establishing liability for constructive dismissal were the
same as those in the Sutherland case. However, unlike civil claims for personal
injury, to succeed in constructive dismissal, the worker must not only show
that there has been a breach of duty, but also that it is a fundamental breach
of contract.
The EAT confirmed the principles in Sutherland relating to the employer’s
duty to take action to avoid impending injury caused by stress at work equally
apply in cases of constructive dismissal (see above).
The employer is generally entitled to assume the worker can cope with the
pressure of work. They will only have a duty to take steps to prevent impending
harm where the indications are such that a reasonable employer would realise
steps were required.
Q Is work-related stress a disability under the Disability Discrimination
Act (DDA)?
A The definition of a disability under the DDA requires the condition
to be a physical or mental impairment, which has a substantial and long-term
adverse effect upon the worker’s ability to perform day-to-day activities.
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A mental impairment is something more than a loose diagnosis of ‘stress’ or
‘anxiety’, and requires the individual to be suffering from ‘a clinically well-
recognised illness’.
