Managing stress returnees

When
staff return from sick leave due to stress the onus is on the employer to
ensure their workload is appropriate, the Court of Appeal has ruled, by
Nicholas Moore

The Court of Appeal in Young v Post Office, 2002, ECWA Civ 661, has ruled
that an employer cannot successfully defend a claim for damages caused by
stress at work on the grounds that it allowed the employee to work as little or
as much as he or she wanted.

The law

It is well established that an employer has a duty to take reasonable care of
the health and safety of its employees.

The recent Court of Appeal decision in Sutherland v Hatton, 2002, EWCA Civ
76, looked at an employer’s obligations in the context of stress-related
illnesses. This decision provided employers with some comfort. It indicated
that normally, an employer will only be in breach of this duty where employees
have made it known that their work is having a detrimental effect on their
health.

The Young decision looks at an exception to the norm.

Facts

Mr Young was a conscientious and hardworking individual. It was agreed that
his job of workshop manager was stressful.

From 1994 he showed signs of stress and in 1997 suffered a nervous
breakdown. Young was absent for four months, following which it was agreed that
he would return to the company on a gradual basis, working the hours he wanted.
This was an attempt to safeguard his health and avoid a recurrence.

However, within two weeks of returning to work, Young was back under
pressure and no longer in control of his time. Seven weeks after his return,
Young was absent again due to stress.

The county court concluded that the Post Office had breached its duty of
care to Young and awarded him approximately £94,000 in damages.

The appeal

The Post Office appealed. It argued that the county court had failed to
consider the case as a whole, and in particular had omitted to place emphasis
on the fact that Young returned to work at his own instigation, and had also
been told he could arrive and leave whenever he wished.

It also appealed on the basis that none of his work colleagues had heard him
complaining about the stress he was under. Indeed, Young believed he could
cope. It was not reasonably foreseeable by the company that he would suffer a
relapse of his illness.

The Court of Appeal rejected these submissions, upholding the decision that
the Post Office had breached its duty of care to Young.

It found that his second period of illness was reasonably foreseeable, and
the Post Office had failed to ensure the special arrangements it put in place
for him were applied in practice.

Further, it found that Young was not guilty of contributory negligence in
inflicting stress upon himself. The onus was on the Post Office to ensure his
return to work was properly managed and that the proposed arrangements actually
worked in practice.

It could not accept that the onus was on Young. He was naturally
conscientious and hardworking and given his previous ill health, could not be
expected to judge the amount of work he should undertake.

Key points

– If employees’ stress is work-related, consider what arrangements can be
made to their duties/workplace to minimise the risk of any such illness
recurring

– Employers should adopt a proactive approach to monitoring how the
arrangements work in practice. Are they being implemented on a daily basis? Are
they satisfactory? Do alternative approaches need to be considered? This is
particularly important in the case of an employee who is naturally
conscientious and hardworking

– It will not be a defence for employers to claim it allowed employees to
work as much or as little as they wanted.

Nicholas Moore is head of Employment at Osborne Clarke

Case roundup – drug testing and disability discrimination

Drug testing leads to dismissal
O’Flynn v Airlinks the Airport Coach Co Ltd, EAT, 15 March 2002, All ER
(D) 05 (Jul)

O’Flynn was employed by Airlinks as a customer care assistant.
Airlinks’ business involved the movement of members of the public around
airports.

In November 1999, Airlinks introduced a drugs and alcohol
policy. The policy was made available to all employees and made clear that a
positive drugs test would lead to disciplinary action which might result in
dismissal.

Airlinks indicated that it was also introducing a regime of
random drug and alcohol screening at a rate of 10 per cent of its workforce
each year.

Five months later, O’Flynn was randomly selected for testing.
The test proved positive for cannabis. O’Flynn was asked to attend a
disciplinary hearing at which it was confirmed that the test had showed a
positive result for cannabis and she was summarily dismissed.

O’Flynn brought tribunal claims for unfair and wrongful
dismissal. The tribunal found in Airlinks’ favour, holding that the decision to
dismiss fell within the band of reasonable responses which a reasonable
employer might apply.

O’Flynn’s appeal to the EAT was unsuccessful. The EAT found
that the tribunal had correctly held the dismissal to be fair and within a band
of reasonable responses.

When is a progressive condition a
disability?

A recent EAT case has clarified the meaning of progessive
conditions under the Disability Discrimination Act 1995.

In an employment context, it is unlawful to discriminate against
an employee or potential employee for a reason relating to that person’s
disability. OH practitioners should be familiar with the meaning of disability
as defined by Section 1 of the Disability Discrimination Act 1995 (DDA):
"…a physical or mental impairment which has a substantial and long-term
adverse effect on [an employee’s] ability to carry out normal day-to-day
activities".

But what if an employee has a condition that has not yet had a
substantial adverse effect but that is expected to do so in the future (a
‘progressive condition’)? What protection does such an employee have under the
DDA? Schedule 1, paragraph 8 (1) of the DDA covers people with progressive
conditions that do not substantially and adversely affect their current ability
to carry out normal day-to-day activities but which are likely to do so over
time.

Can an employee claim he or she is disabled as soon as that
employee experiences some effect of a progressive condition, or must that
employee also prove the effect is likely to become substantial in the future?
This issue was considered in the recent case of Mowat-Brown v University of
Surrey EAT, 2002, IRLR 235.

The case involved a university lecturer who was diagnosed as
having multiple sclerosis. At that time he had a contract equivalent to 55 per
cent of a full-time contract. However, following the amalgamation of his
department with another, the university relieved him of administrative and
research duties and offered him a contract equivalent to 20 per cent of a
full-time contract. He rejected the new contract and his employment terminated.
He subsequently brought claims of disability discrimination and unfair
dismissal in the employment tribunal.

According to the EAT, the key question was whether, on the
balance of probabilities, the employee had established his condition was likely
to have a substantial adverse effect. "It is not enough simply to
establish that he has a progressive condition and that it has or has had an
effect on his ability to carry out normal day-to-day activities," the EAT
ruled. "He must go on and show that it is more likely than not that at
some stage in the future he will have an impairment which will have a
substantial adverse effect on his ability to carry out normal day-to-day
activities."

In every DDA case, the employment tribunal will form its own
view as to whether an applicant is disabled or not. The main reason why
Mowat-Brown failed was because the medical evidence did not support him. His
medical prognosis was quite good: the adverse effect of his condition was not
likely to become substantial. The EAT saw no reason to interfere with the
tribunal’s decision that Mowat-Brown was not disabled.

Key points

– The above case highlights the importance of medical evidence
in DDA cases. Statistics may also be useful in persuading a tribunal that a
progressive condition is likely to result in substantial adverse effects

– The tribunal must make its own assessment of the medical
evidence and must not delegate to doctors its responsibility for determining
whether an employee is disabled

– ‘Physical impairments’ have been held to include: back injury
(soft tissue injury); cancer; cerebral palsy; club-foot; cluster headaches;
diabetes; dyslexia; epilepsy; HIV; ME/chronic fatigue syndrome; MS; muscular dystrophy
and visual impairment

– The Government plans to amend the definition of disability to
include cancer and HIV from the point of diagnosis

James Moss is a solicitor at Palser Grossman solicitors

The Employers’ Forum on Disability is a charity that provides a
wealth of useful information and guidance on this subject: www.employers-forum.co.uk

This article first appeared in the September 2002 edition of Occupational
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