As
claims grow by staff for damages for stress-related illnesses, employers should
act now to avoid landing themselves in court
In
July 2001, the Health and Safety Executive published research indicating that
stress causes the loss of 6.5 million working days a year (Personnel Today, 3
July 2001). More recently, The Times (28 August 2001) reported on an increasing
body of opinion to suggest that stress can kill.
For
some time it has been recognised that stress may exacerbate conditions such as
heart disease, strokes and cancer, but there has been little evidence of stress
being the cause of death. However, the
case of junior doctor Alan Massie, who died after working an 86-hour week, has
highlighted Sudden Adult Death Syndrome, where apparently fit and healthy young
adults suddenly drop dead. His parents believe stress killed him.
The
number of employees successfully claiming damages for stress-related illnesses
is growing steadily. Judith Unwin, a part-time teacher in West Sussex, was
recently awarded £2,500 for the aggravation of her depressive illness, when her
local authority failed to monitor her health even though it was aware she was
suffering from stress.
Jane
Witham was awarded £140,000 after her employer, Hastings and Rother NHS Trust,
was held to have subjected her to extreme stress following her return to work
after maternity leave, even though it was aware she had suffered from
post-natal depression.
Worcestershire
County Council has had to pay almost £500,000 to four employees in the past 18
months for stress-related claims, the most recent involving Theresa Conway, a
former social worker, who was awarded £140,000. She regularly worked between 70
and 80 hours a week as the deputy manager of a residential home for the elderly
when the manager left and the council even ignored inspectors’ recommendations
that the home needed a permanent, experienced manager.
Despite
such cases, there are legal hurdles for staff to clear in order to prove that
an employer has caused stress and/or psychiatric injury. These hurdles are
principally "causation" (ie, proving that the stress caused the
condition) and "foreseeability" (ie, that a reasonable employer
should have foreseen the risk).
Lyn
Armstrong, for example, a former prison officer who was assigned to Rosemary
West prior to and during her trial, claimed that the experience caused her to
suffer post-traumatic stress disorder and should have been prevented by her
employer. The High Court rejected her claim on the grounds that it was not
reasonably foreseeable that she would suffer psychiatric injury as a result of
her duties.
Employers
should not, however, seek to hide behind these hurdles indefinitely. There is a
growing body of evidence linking workplace stress to serious illness, which
reduces the causation difficulties. Further, the courts are increasingly
willing to find that stress-related illness was "foreseeable" and
will give short shrift to companies turning a blind eye to stressed staff.
Employers
should ensure that staff are properly trained, not working excessive hours and
not being bullied.
Staff
showing signs of stress (frequent sickness absences, inability to cope or make
decisions) should not be ignored. Sickness reporting procedures should identify
illness patterns while anti-harassment policies and grievance procedures should
allow staff to raise concerns. Flexible working may also help to cut stress by
allowing staff to balance their home and work lives.
Stress
is a serious issue and it is only a matter of time before an employer is sued
for karoshi – the Japanese for causing death by overwork.
By
Paul White a senior associate and Charlotte Hamer a professional support lawyer
in the employment and pensions group of City law firm Stephenson Harwood
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