Brian Palmer, deputy head of Charles Russell’s employment unit, considers
the approach which employers should adopt to stress in the workplace
It was Winston Churchill, when speaking of Joseph Chamberlain, who said
"Mr Chamberlain loves the working man – he loves to see him work".
Until recent times, that could also have been said to be most employers’ idea
of their ideal manager. However, with the Health & Safety Executive
("HSE") report from May last year estimating that stress-related work
accidents and ill-health cost the country £7bn per year and individual claims
by employees now leading to awards in excess of £100,000 per employee, the
well-advised employer will now have the issue of workplace stress at the top of
his concerns.
In this article, I will consider what stress is; its causes and effects.
Then I will review potential claims which an employee can bring together with
how employers may seek to prevent claims.
What is stress?
The HSE defines stress as, "The reaction people have to excessive
pressures or the types of demands placed on them when they worry they cannot
cope."
It would appear that the necessary ingredients for work-related stress are:
1) An experience personal to the employee
2) Caused by workplace pressures
3) Which impacts upon the employee’s capacity to cope with those demands or
his perception of that capacity.
How frequently does workplace stress occur?
Recent surveys have been carried out by the TUC, the Industrial Society and
the HSE.
The TUC report "Focus on Health & Safety" was published in
November 2000 after 9,000 safety representatives had been surveyed. Sixty six
per cent of those polled said that stress was their main health concern. John
Monks, the TUC general secretary, stated, "Stress at work is a serious
problem. But a modern, 24-hour economy does not have to mean long hours – we should
be working better, not longer. Partnership between employers and unions, and
respect for people at work, are the keys to creating a healthy workplace".
An Industry Society report published in September 2000 found that stress was
the second highest reported cause of absence from work. Five million employees,
one-fifth of the working population, suffered from high levels of stress with
serious effects on their physical and mental health.
The HSE’s study published in December 2000 found that:
– Those groups reporting highest stress were, in order, teaching, nursing,
management, professionals, other education and welfare, road transport and
security
– In those highest stress groups, at least 20 per cent reported themselves
as being "very or extremely stressed" – for teachers the figure rose
to 40 per cent
– Extreme stress was most frequently reported by those in managerial and
technical occupations
– Full-time workers were more stressed than part-time workers; and
– There was little difference in stress levels between men and women.
What causes stress?
There are, obviously, many causes of stress. The TUC survey indicated that
the safety representatives considered the main causes of stress to be as
follows:-
– Workload – 74%
– Cuts in staff – 53%
– Change at work – 44%
– Long hours – 39%
– Shift work – 30%
– Bullying – 30%.
Others areas which might cause stress will include lack of supervision,
inadequate training, generally poor and/or dangerous working conditions and
poor relations with colleagues.
What are the effects of stress?
It is the reaction of the individual employee to pressures placed on him
which may give rise to legal problems for the employer. The difficulty for the
employer is that different employees can react very differently to the same
pressure. Some employees regard pressure as the necessary "adrenaline
fix" to produce their best work while other employees can collapse under
the strain. It is this latter case, where the costs and effects to an employer
can be considerable. The most obvious manifestation of stress in an employee
will be decreased job performance and then, usually, absence. Long term absence
will have an effect on other employees, the general efficiency of the
organisation and, depending on the employer’s sick pay scheme, potential loss
of earnings for the employee.
What potential claims can an employee bring?
There is obviously an overlap between personal injury claims, in the purest
sense, and employment related claims under normal principles. Traditionally,
employees could not recover compensation for ill-health caused by stress
arising from the workplace. However, the landmark decision in Walker v
Northumberland County Council [1995] IRLR 35 found that the general duty of
care owed by an employer to his employee could extend to the risk of
psychiatric damage caused by the work which the employee was called on to
perform.
In this case, Mr Walker, who worked for Northumberland County Council from
1970 to 1988, had a dramatic increase in his workload in the 1980s. He told his
superiors on several occasions that his department was understaffed. Then in
November 1986, he suffered a nervous breakdown and went on sick leave. He was
ready to return to work by February 1987, but his doctors told him this was
only on the condition that he had increased support. His employers agreed to
provide him with an assistant at this time.
In actual fact, little, if any, additional assistance was given to him and
the work again became too much and he went on sick leave in September 1987, he
was subsequently dismissed by the Council on grounds of permanent ill-health in
1988. The Court found that, although his first breakdown was caused by overload
of work, it was not reasonably foreseeable that the overload would result in
his illness. It was accepted, however, that his employer should have foreseen
the second breakdown and his claim, therefore, succeeded and subsequently
settled for £175,000.
The key points which an employee must prove for a successful claim are:
1) That the stress caused a recognised mental illness
2) That that illness was caused by workplace stresses and not other factors
3) That the risk of illness was reasonably foreseeable by the employer; and
4) That the employer did not meet the standard of the hypothetical reasonable
employer in exposing the employee to workplace stress.
The key point in the Walker case is that his employer should have
appreciated after his first breakdown, that he was more vulnerable to
psychiatric damage than other employees so that he would be more likely to
suffer health problems if put in the same position again.
Subsequent cases have lowered the hurdle which an employee would need to
cross. With the increased awareness of stress-related issues in the workplace
and the dangers of such stress, employers may be argued to more conscious of
the possibility of stress-related illnesses and the foreseeability that
pressurised working regimes may lead to stress induced illnesses. Randy Ingram
a site warden for travellers, was verbally and physically abused and was even
shot at by site residents during the course of his employment. Perhaps not
surprisingly, the stresses of his position led to him having to retire at the
age of 39 due to ill-health caused by stress at work. He received a record settlement
of £203,000.
Potential claims
Potential claims may be under common law and/or statute.
Common law
Traditionally the general duty of employers to their employees is to keep
them safe from harm, providing a safe place/systems of work and safe and
competent fellow employees. More recently, the courts have found implied
contractual terms, that the employer should take care of its employees’ health
as well as safety. Where an employer breaches this duty, it may be argued to be
a significant breach going to the root of the contract of employment entitling
the employee to resign and claim constructive dismissal.
Typically such a claim may arise where the employee is not coping and the
employer, well aware of the problem, does nothing to alleviate it. Provided the
employee does not delay his resignation for too long after the incident, he may
be able to establish constructive dismissal.
An employee may be able to bring a personal injury claim where he can show
negligence on the part of the employer, in breaching the common law duties
referred to above or breaching one of the statutory duties referred to below.
The employee must show a breach meeting the key points from the Walker case
outlined above. It must be established that the stresses will lead to an actual
mental or physical illness. Simple upset or injured feelings or normal anxiety
or stress will not be sufficient.
Breach of Statutory Duties
While, as yet, there is no specific stress-related legislation, various
other provisions may be called upon by employees in stress-related litigation.
Working Time Regulations 1998
Limits are imposed on the number of weekly working hours and entitlements to
breaks, rest periods and annual holiday are granted. Although many employees
may have opted out of the maximum forty-eight hour week, such an opt-out does
not entail abandoning the general right to health and safety protections.
Health & Safety at Work Act 1974
Employers are under a duty to take reasonably practical measures in order to
ensure the health, safety and welfare of their employees and others in the
workplace. The duty extends to systems of work, working practices and
procedures; machinery, plant and equipment; and the working environment.
Management of Health & Safety at Work Regulations 1992
The relevance of these regulations to stress is that an employer is under an
obligation to carry out a hazard study or risk assessment for the workplace,
following which, the employer must put in place the appropriate preventative or
protective measures to safeguard his employees from harm.
Maternity and Parental Leave Regulations 1999
The stress of seeking to juggle parental and work obligations is sought to
be alleviated by these regulations.
Unfair Dismissal
It should not be forgotten that an employee dismissed for absence or
under-performance may be able to allege unfair dismissal under the Employment
Rights Act 1996 ("ERA"), assuming that the employee had been
continuously employed for one year at the date of termination.
Automatically Unfair Dismissal
Any employee dismissed for complaining about a stressful work situation, may
be able to argue that the dismissal is connected with raising health and safety
issues. If successful, under Section 100 of ERA, the dismissal will be
automatically unfair. Similarly, any employee suffering detriment by virtue of
raising such a concern will, under Section 44 ERA, have a right to
compensation. The compensation which can be claimed in both cases is unlimited
and there is no qualifying period of employment in order to bring these claims.
Furthermore, protection against victimisation may be obtained under the Public
Interest Disclosure Act 1998 in "whistleblowing" cases.
Disability Discrimination Act 1995
A stress-related illness could possibly amount to a disability so that,
under the Act, the employer would be obliged to make reasonable adjustments to
the workplace to accommodate the disability and the dismissal of such an
employee could amount to disability discrimination. However, for an employee to
have a disability within the meaning of the Act, he must have a physical or
mental impairment which has a substantial and long-term adverse effect on his
ability to carry out normal day to day activities. As stress itself is not yet
a clinically recognised condition, the initial hurdle of proving disability
will be difficult. Indications are that, unless the employee can demonstrate
that the stress induced a clearly recognised medical condition, it is unlikely
that the Act will be of much assistance.
Criminal offences
Employers should not lose sight of the fact that breach of the Health &
Safety at Work Act 1974 and Management of Health & Safety at Work
Regulations 1992 could result in criminal convictions in addition to any
compensation claims which an employee may have. Furthermore, it could also be
possible for an employee to argue that the Protection from Harassment Act 1997
(primarily introduced to combat "stalking" offences) could provide
that harassment in the workplace would amount to a criminal offence.
Criminal Justice and Public Order Act 1994
Finally, the Criminal Justice and Public Order Act 1994 makes intentional
harassment, causing alarm or distress or racial, sexual and other forms of
harassment at work (as well as elsewhere) a criminal offence.
How can employers prevent claims?
Given the significant areas of potential claims outlined above, the well
advised employer will aim to take preventative action by engaging in stress
management. The Health & Safety Commission and the HSE continue to provide
guidelines for employers. Employers are encouraged to undertake a three stage
approach to stress management.
Assess the risk
Risk assessments should be performed in order to ascertain potential causes
of stress and the level of such risks to individual employees and to the
organisation as a whole. Additionally, the HSE generally recommend for large
employers that the risk assessment be carried out by way of a full audit
conducted by an external organisation. Employers must recognise that, once a
problem is highlighted, the employer will be fixed with knowledge of it and
have to do something about it. However, the "ostrich" approach of
burying one’s head in the sand, is not to be recommended.
Tackle the causes of stress
The risk assessment referred to above should highlight situations with
recommendations for improvement. These can include establishing a clear policy
on stress; putting in place stress management training; establishing
anti-bullying or harassment policies and ensuring that regular appraisals of
employees’ work take place with an allowance for grievances to be raised.
Good managers will already appreciate the benefits of ensuring best possible
use is made of available resources. Work should be fairly distributed among
employees and priorities clearly set.
Handling of employees who have suffered stress-related illnesses
The usual consultation and monitoring which an employer should undertake
with regard to any absent employees should take place. In addition, the
employer should consider offering stress counselling to the employee, perhaps
involving external third party assistance. The employer should consider whether
any reasonable adjustments should be made to accommodate the employee’s return
to work, such as part-time working. Finally, when the employee has returned,
the situation should be regularly monitored to ensure that it does not recur.
Conclusion
While employees have many potential avenues of attack open to them, the
major obstacle which they face is proving, supported by medical evidence, that
a recognised illness exists and that such illness was caused by work pressures.
Having said that, increasing awareness of the issues, means that employers will
be expected to tackle workplace stress. By adopting the stress management
strategy set out above and putting in place appropriate measures, employers
will give themselves the best chance of minimising potential claims. One never
knows, they may even benefit by decreasing absenteeism and achieving an
increase in motivation, productivity and efficiency!
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Unless employers tackle the issue voluntarily, employers may find stricter
legislation in place. On 7 June 2000, the Government and HSE’s Revitalising
Health & Safety Strategy Statement set out the Government’s target to
reduce the rate of work-related ill-health by 20 per cent by 2010. If employers
do not aim to achieve that target voluntarily, they may find (assuming Labour
win a second term) legislation in place forcing them to do so.
This article is of general application and of general guidance. It should
not be relied upon without seeking separate legal advice. Neither the author
nor his firm can accept any responsibility for actions taken or omitted to be
taken as a result of relying on this article alone
