Lords stress the positive

The
House of Lords may have overturned a Court of Appeal on workplace stress in
Barber v Somerset, but where does its decision leave employers? Ros Gumbley, a
consultant at Human & Legal Resources provides some answers

In
the recent case of Barber v Somerset, the House of Lords overturned a Court of
Appeal decision concerning a stress at work claim. However, it is important to
note that the House of Lords broadly supported the guidance given by the Court
of Appeal in dealing with cases concerning stress at work and that the
principles established by the Court of Appeal were still valid.

The
House of Lords decided on the basis of facts in this particular case that Mr
Barber’s employer was in breach of its duty of care by failing to take steps to
lessen job-related stress that could lead to psychiatric illness, and thus made
a compensatory award of £72,500.

The
Court of Appeal’s judgment gave useful guidance to employers, with practical
steps that could be taken in case of complaints relating to psychiatric illness
brought about by stress at work.

For
an employee to succeed with such a claim, the employer must be able to
reasonably foresee whether the employee would suffer from psychiatric harm
which could be attributable to stress at work. This of course depends on what
the employer knows (or ought to reasonably know) about the individual employee
and their illness.

In
general, the employer is entitled to take what they are told by his employee at
face value, unless they have good reason to think to the contrary. They do not
generally have to make searching inquiries of the employee or seek permission
to make further enquiries of the employee’s medical advisers. However, employer
should always seek further medical advice to clarify the nature of the illness
and any recommended actions.

How
does this impact on me as an employer?

Where
an employee has suffered from an illness resulting from workplace stress and
the employer has been told of the circumstances regarding the individual’s
illness, the employer must make a provision for the duty of care for that
individual.

In
the case of Barber, it was clear that the employer had been made aware of the
nature and circumstances surrounding the individual’s illness. The employer
should have provided assistance to Barber and taken appropriate measures. In
this case, these measures could have included making sympathetic enquiries
about Mr Barber’s health upon his return to work and taking reasonable steps to
reduce his workload.

What
measures should an employer take when an employee makes a claim of work-related
stress?

The
message for employers is that having a stress at work policy in place or
providing counselling to individuals is not enough provision to deal with
stress. They need to be aware of making unreasonable demands on individuals.

Where
an individual makes their employer aware that they are suffering from
work-related stress and that this could lead to an identifiable mental illness,
the employer must consider the nature and extent of the work being carried out
by the employee.  In particular, the
employer should consider:


whether the workload is much more than is normal for that particular type of
job


whether the demands being made of that individual are unreasonable when
compared to the demands that are made of others in the same or comparable jobs


whether there are signs that others doing this job are also suffering harmful
levels of stress.

Having
identified any unreasonable demands on the individual, it is then necessary for
the employer to identify steps that can be taken to support the employee and
prevent any further illness. In the guidance given by the Court of Appeal, the
size and scope of the employer’s operation, its resources and the demands it faces
are relevant in deciding what steps are reasonable.

How
can an employer monitor stress and take proactive measures to prevent stress in
the workplace?

Employers
should carry out proactive monitoring of the overall levels of stress on
employees, either through carrying out a risk assessment or an employee survey.

It
is important that employers have a stress policy that clarifies their approach
to dealing with instances of stress. Corporate recognition of the problem and
the assurance that employees will not be penalised as a result will make it
easier for employees to admit to stress.

Guidance
and training for managers will equip them in coping with and managing claims of
stress.

In
addition, employers may consider providing a confidential counselling service
for employees.

What
are the penalties for not taking appropriate measures?

Although
there is no specific legislation covering stress at work, an individual can
bring a claim under the Disability Discrimination Act, provided that their illness
comes within the definition of a disability, or, as in this case, the
individual makes a personal injury claim. In addition, employers have a general
duty of care to their employees under the Health and Safety at Work Act. 

The
judgment in this particular case has clarified the legal position for employers
in that they must take reasonable steps to ensure that they are not in breach
of their duty of care and employees who recognise that they are suffering from
stress have a responsibility to inform their employers of this fact.

The
penalties of not taking reasonable measures to protect employees can be costly.
There is currently no limit to the amount of compensation that can be awarded
in cases of disability discrimination or personal injury.

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