Legal Q&A: stress-related absences

In light of a recent ruling, employers are more likely to find they are liable for injury caused by work-related stress, even if it is caused partly by work and partly by other factors. Employers, therefore, need to be careful about how they deal with stress-related absences – even more so in the current economic downturn, when employee stress levels are likely to be higher than normal.

Q What duty of care does an employer owe to an employee who is on long-term absence with stress?

A Employers are under a duty to provide a safe system of work, and this includes taking steps to ensure that staff do not suffer stress-related illnesses as a result of their work. Employers that breach this duty may face negligence claims, although such claims are far from straightforward and employees have to overcome some fairly major hurdles before they can succeed. An employee has to show that: their employer owed them a duty of care their employer breached that duty they have suffered an injury the injury was caused by their employer’s breach of duty and that the injury was reasonably foreseeable. Most stress cases turn on whether or not the employee’s injury was reasonably foreseeable.

Q What evidence is needed to prove stress?

A Stress is quite a difficult concept to define. The Health and Safety Executive defines it as “the adverse reaction people have to excessive pressures or types of demand placed on them”. This definition recognises the fact that stress is a reaction, and not a disease in itself. It can manifest itself in a number of ways and an employee would have to produce medical evidence to prove any injury they claim was caused by stress. Nothing short of active psychiatric harm is sufficient to count as an injury. Distress is not enough.

Q What should an employer do if an employee complains about being stressed?

A First and foremost, the employer needs to treat the matter seriously. It should speak to the employee to try and identify the causes of the stress – these may or may not be work-related. If the employee says that the stress is work-related, then the employer should discuss the exact causes with the employee. The steps it can take to deal with the issue will depend to a large extent on the contributing factors. It is important that employers do not simply ignore the employee’s concerns. If an employer has been put on notice that the employee is suffering from stress, whether work-related or not, it will clearly be easier for him to show that the risk of harm was foreseeable, a key factor in any successful claim.

Q How liable is an employer for compensation when work may have only played a minor part in an employee’s stress-related illness?

A As a general rule, employers are only liable for that proportion of an employee’s injury caused by their negligence. However, the Court of Appeal has recently thrown doubt on this approach and suggested that if an employer is responsible in any way for the illness, then it is liable to compensate the employee in full. What the courts are essentially saying is that it is impossible to say the employer is responsible for X% of the illness, and so has to pay X% of the loss. Instead, if you are at all responsible for the illness, then you are liable for 100% of the loss.

Q Should an employer provide counselling for staff suffering from stress?

A Employers are under no legal obligation to do so, although the provision of such services is likely to be helpful from an employee relations point of view, and should assist in reducing absences from work as a result of stress, as well as help those employees who have been off work due to stress-related illnesses to return. It had been suggested in Sutherland v Hatton that the mere provision of such services may be sufficient to absolve employers of liability in stress at work cases altogether, but more recent case law has made it clear that this is not so, especially if overt signs of stress are ignored.

Q What actions should HR take to minimise the risk of stress claims?

A Employers should:

  • ensure that risk assessments are carried out and documented to include risk of injury through stress

  • conduct regular appraisals with staff and include a section on stress and workloads in appraisal forms

  • conduct and document return-to-work interviews after periods of absence due to illness and follow up where necessary

  • offer a confidential stress counselling service to employees with a referral to appropriate counselling or treatment services.

Sue Nickson, partner and chief operating officer, Hammonds

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