Last summer I met Barry Johnson, the former vice-president of worldwide telecoms for Unisys. He was in a wretched state. Shaking, weeping and talking in little more than a whisper, he recounted the 10 years of extreme stress, melancholy and mania that led up to him being sacked in February 1994. He was admitted to psychiatric hospital the same day. Suicide attempts and further periods of hospitalisation have since followed, though most days are filled with the more footling battles of coping with manic depression.
“I became a victim of work,” he said. “No-one ever thinks it will happen to them. You try to tell them [an employer] that you can’t cope, but they do not listen. You get worse and worse, but they don’t care. They will use you and dump you.”
Mr Johnson was a very senior manager, who was unlikely to have risen as high as he did if he had exhibited any of the supposed clichés of the stress victim: the ‘flakiness’, the lack of stiff upper lip, drive and chutzpah. Before this encounter I would have judged myself a stress sceptic. Stress was merely one of many fashionable, white-collar pathologies; a trivial complaint that did not deserve to sit in the same bracket as ‘proper’ industrial conditions such as emphysema or asbestosis. Wrong. Barry Johnson was living proof that in extreme cases work can cause serious psychiatric illness.
So why am I recounting all this? Because it is important to remember people like Barry in the current climate. Ever since the judgment in the Court of Appeal on 5 February, a nasty tone has re-entered the debate on stress. Employers have been ‘thrown a lifeline’. ‘HR can breath a sigh of relief’. ‘New realism’ has re-entered the law. Even the sober Financial Times carried a (slightly misleading) headline on 6 February: ‘Employee awards reversed on grounds that harm must be reasonably foreseeable’. It has always been the case that harm must be ‘reasonably foreseeable’; the judgment merely spelled out what this should mean.
Such comments are a sign that the workplace stress phenomenon is still very new. It was only in 1994 that an immensely significant principle entered the law: “There is no logical reason why psychiatric damage should be excluded from the scope of an employer’s duty of care.”1 With these words, spoken by the judge summing up in Walker v Northumberland County Council, stress became an issue for every employer in the land. It remains deeply controversial. It still rankles with many that some payments, wrongly described as ‘stress payments’, have been £200,000-plus. Why is this so controversial? Because psychological injuries are still perceived as trivial.
With controversy has come misinformation. Contrary to reports, the law on personal injury has never taken the slightest interest in workers feeling emotional, pressurised, wound-up or bullied at work. It is only interested if such features can be proved to cause classifiable psychiatric illness. As a consequence, stress cases have always been extremely difficult to win. Thompson’s, the trade union solicitors which has won several payments, suggests that ‘0.001 per cent’ of claims have the faintest chance of success.
The real problem is the number of claims. Since the Walker case, there has been a predictable rise. According to the TUC, stress cases referred to unions increased in 2001 to 6,428, from 516 during 2000. That is a massive rise. Yet a little context is useful. There were 80,000 personal injury claims last year.2 The Department of Trade and Industry receives 1,000 claims a week from former miners injured with lung disease while working at British Coal. Meanwhile, the best research we have finds stress accounts for a fifth of all work absences,3 exacerbated by management factors such as low decision latitude, high job demands, poor support and a perception of high effort and low reward.4 It is possible to argue that while a few will inevitably be trying it on, the rise in claims is a reflection of the seriousness of work-related stress.
“Even if all those cases led to litigation, it would only produce a litigation rate of about one in 100 reported cases,” says Owen Tudor, the TUC’s senior health and safety policy officer. “This is comparable to many other types of occupational ill-health.”5
Employers’ organisations have hailed the Court of Appeal judgment and its ’16 practical propositions’ as a clarification of the law on stress. Others believe it augurs a new era of confusion.
Take the proposition that has been most seized upon by pundits as a means of attacking stress victims – that no job is intrinsically stressful. Is this really true? Andrew Buchan, the barrister who represented John Walker in 1994, says: “This goes against the established occupational health position that certain jobs are intrinsically stressful: bomb disposal, for instance. When people are doing 60, 70, 80 hours a week, there is an increased risk of psychiatric injury.” He predicts other cases will be decided differently. “Some judges are pro-psychiatric injury, others are not.”
Perhaps the supreme irony is that this watershed judgment has come at a time when the Health and Safety Executive has never sounded more bullish about taking action on stress-related injury. The HSE is well aware that the duty to carry out risk assessment for psychiatric injury under the Management of Health and Safety at Work Regulations, 1999, is cheerfully ignored by all but the zealots. It is currently working on a new ‘management standard’ that will specify employers’ obligations on mental health and will, in effect , become ‘the law’ on stress. It has vowed to work towards a 20 per cent reduction in stress-related absence from work within 10 years.
“One-fifth of people taking time off work because of stress is too much,” Abdul Chowdry, a Health and Safety Commissioner, told a conference last month. “Some employers want to take the slow approach to stress, but I have to tell them: time is not on your side. Not doing anything about it is not good enough. There is no no-go area anymore for the HSE.”6
The warning should be heeded. And if anyone really wants to know, Barry Johnson has never had a penny in compensation for personal injury.
1 Taken from Managing Stress at Work, EEF, 2001
2 Figures from The Law Society; www.lawsociety.org
3 The Scale of Occupational Stress, Contract Research Report 211, Health and Safety Executive, 2000
4 Work environment, alcohol consumption and ill-health, Contract Research Report 422,HSE, 2002
5 IRS Employment Review 749; www.xperthr.co.uk
6 Speech to Stress Essentials conference, hosted by the EEF, April, 2002