Workplace stress round-up

Transcription

1 Workplace stress round-up Workplace stress is an issue employers can ill afford to ignore, with recent research highlighting its impact on workers physical as well as mental health. In this article, we examine the key legal issues which can arise from complaints of work-related stress, looking at the demands placed on employers in terms of monitoring the wellbeing of their workforce and responding to complaints of excessive workloads. As a term, workplace stress is imprecise and capable of a number of different interpretations. The Health and Safety Executive (HSE) s definition is probably the most illustrative, categorising stress as the adverse reaction people have to excessive pressure or other types of demand placed on them. The HSE draws a distinction between pressure, which can be a positive state if managed correctly, and stress, which can be detrimental to health. In employment, stress and stress-related illnesses can be caused by poor communications, strained working relationships, excessive workload, job insecurity, role ambiguity, bad workstation design, boredom, harassment, bullying and violence. Employers are subject to myriad legal obligations in respect of their employees health and well-being, which arise not only from health and safety law breach of which is a criminal offence but from the law of negligence, contract and discrimination. As will become clear below, these obligations do not begin with employees being diagnosed with psychiatric illness, but extend to managing overworked staff to avoid their developing the symptoms in the first place. Health and safety law The Health and Safety at Work etc Act 1974 requires employers, so far as is reasonably practicable, to ensure the health, safety and welfare at work of their employees S.2(1). This broad definition clearly extends to taking steps to prevent stress-related illnesses. In addition, employers must carry out an assessment of the risks to employees health under Reg 3(1) of the Management of Health and Safety at Work Regulations 1999 SI 1999/3242, and the HSE has recommended that this ought to include consideration of the threat to employees psychiatric health from occupational stress. Where the assessment highlights a potential health issue, employers must take reasonable steps to limit the risk and monitor the situation, otherwise they could be committing a criminal offence. Since October 2003, employees may also bring civil claims for breach of statutory duty against employers who are in breach of the 1999 Regulations. The HSE and local authorities have the job of enforcing the health and safety legislation, and can issue an improvement notice requiring an employer to rectify a breach of the HSWA or, if it causes a risk of immediate danger, a prohibition notice to stop the hazardous operation. Non-compliance is a criminal offence and can lead to an unlimited fine or up to two years imprisonment. The first improvement notice to reduce work-related stress served on a large employer was issued in 2003 against the West Dorset General Hospitals NHS Trust. The Trust was warned that it faced fines unless it changed some of its working practices to reduce occupational stress at one of its hospitals. The notice was subsequently lifted after the hospital took steps to remedy the issues identified by the HSE. In general, the HSE has said that it intends to carry out work-related stress audits as part of its routine inspections. However, this comes against a backdrop of budget cuts and a fall in the number of inspections. Working Time Regulations It is widely recognised that long working hours and night working pose an increased risk to health and safety. In fact, the EC Working Time Directive (now No.2003/88), which provides a framework for regulation of these areas, was implemented as a health and safety rather than a social policy measure. Thus, the Working Time Regulations 1998 SI 1998/1833, which implement the Directive, should be interpreted with health and safety in mind. Employers are under a duty to take all reasonable steps to ensure the limits contained in the Regulations such as the 48-hour week (if the employees have not contracted out of it) and the limits on night working are complied with. For a full examination of the Regulations, see IDS Employment Law Handbook, Working Time (2005). Employers liability In addition to health and safety obligations imposed by statute, employers are under common law duties to ensure the health and safety of their employees. There is an implied duty under the employment contract itself for the employer to take reasonable care to ensure employees safety. However, most of the leading cases in the area have been couched in the terms of the tort of negligence, which the contractual duty essentially mirrors. An employee will have a valid negligence claim if his or her employer has breached its duty of care to protect the employee, and the employee suffers a reasonably foreseeable physical or psychiatric injury (as opposed to merely the symptoms of stress) as a result. 14 i Employment Law Brief 848 March 2008

2 The Hatton Guidance the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components, (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors). Factors likely to be relevant in answering this question include the nature and extent of the work done by the employee and any signs from the employee of impending harm to health foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. An employer is usually entitled to assume that an employee can withstand the usual pressures of the job unless he knows of a particular problem or vulnerability no occupation should be regarded as intrinsically dangerous to mental health an employer is generally entitled to take what he is told by his employee at face value, unless he has a good reason to think to the contrary to trigger a duty on the employer to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it the employer will only breach the duty of care if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk the size, resources and scope of the employer s operation, and the need to treat other employees fairly, can all be taken into account in determining what is reasonable an employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty if the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job Injury must be reasonably foreseeable The aspect of the negligence test on which stress claims stand or fall is nearly always whether the employee s psychiatric injury was reasonably foreseeable by the employer. The key guidance in this regard (see the box above) was set out by the Court of Appeal in Sutherland (Chairman of the Governors of St Thomas Becket RC High School) v Hatton and other cases 2002 IRLR 262 (Brief 704). One of the Court s key findings was that an employer will be entitled to assume that an employee can cope with the normal pressures of a job unless the employer knows of something specific about the job or the individual concerned that should make him consider the issue of psychiatric injury. Furthermore, an employer is not obliged to make intrusive enquiries, and is generally entitled to take what he is told by his employee at face value. On appeal from the Court s decision in Hatton, the House of Lords, in Barber v Somerset County Council 2004 ICR 457 (Brief 756), stated that the Court s guidance was useful, but was nevertheless only guidance. Thus, the statement of Mr Justice Swanwick in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd WLR 1776 remained the guiding principle: the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know... where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it. At first sight, this appears not markedly different from the Hatton guidance. However, their Lordships application of Bolts and Nuts to Mr Barber s case highlighted a shift in emphasis in the test of reasonable foreseeability, restoring the employer s responsibility for taking the initiative where employees report occupational stress. The facts of Barber were as follows. B, a maths teacher, took on extra responsibilities to maintain the same salary following a restructuring. In May 1996 his GP signed him off work with stress and depression. On his return three weeks later, no one discussed his illness with him, so B arranged a meeting with the head teacher, H, to make her aware that he was not coping with his workload. H was unsympathetic, telling him that all the staff were under stress. In July, B arranged separate meetings with the two deputy heads, N and G, at which he explained that his inability to cope was harming his health. N s reaction was similar to H s and, although G was more sympathetic, no steps were taken to reduce B s workload. In November B broke down and was diagnosed as suffering from depression. He sued, and the county court judge held the employer liable in negligence for B s illness. When the case reached the House of Lords, their Lordships held that the employer had paid insufficient regard to the fact that B had actually taken time off work with stress. In addition, B had raised his problems with line managers following his return to work. The employer was therefore alerted to the possibility that B could suffer a psychiatric injury. As to the steps that the school should have taken to safeguard B s health, their Lordships stated that budgetary constraints and the fact that other staff were overworked were not reasons for finding that the school was under no duty to help B. They commented that even a small reduction in his duties, coupled with the i Employment Law Brief 848 March

3 feeling that the senior management team was on his side, might by itself have made a real difference. B was awarded compensation of 72, Case law post-hatton and Barber In recent years, the courts have been called upon on a number of occasions to apply the Hatton guidance. We now consider some of the more interesting points arising. Provision of counselling services As noted above, the Court of Appeal in Hatton suggested that an employer who offers a confidential advice service, with referral to appropriate counselling, is unlikely to be found liable in negligence. This aspect of the Hatton guidance was considered in Intel Corporation (UK) Ltd v Daw 2007 EWCA Civ 70 (Brief 824). There, the Court of Appeal held that an employee s to a manager stating, among other things, that she was stressed out and demoralised, and including a reference to two previous episodes of post-natal depression was crucial to the issue of reasonable foreseeability. Her reference to her previous post-natal depression, in particular should have made her manager realise that there was a connection between the way she was feeling now and those episodes. In the circumstances, urgent action should have been taken to reduce D s workload. IC Ltd had the resources to ameliorate D s situation straight away, and its failure to do so amounted to negligence. In reaching this conclusion, the Court rejected IC Ltd s submission that, applying the guidance in Hatton, the fact that it provided a counselling and medical assistance service was sufficient to discharge its duty of care. Although the Hatton guidance suggested that an employer who offers a confidential advice service is unlikely to be found in breach of the duty of care, each case turns on its facts. In this case, D could not be criticised for not using the counselling service, as it could not have alleviated her problems; only management could have resolved D s situation, by reducing her workload. Relevance of working time law A breach of the Working Time Regulations may be taken into account in determining that a psychiatric injury was reasonably foreseeable. For instance, in Hone v Six Continents Retail Ltd 2006 IRLR 49 CA (Brief 794) a claimant successfully used the Regulations to bolster his argument that his injury had been reasonably foreseeable, where, despite having refused to opt out of the statutory maximum 48-hour week, he had consistently worked around 90 hours a week. Nevertheless, the fact that an employee is working in excess of the 48-hour limit will not, in itself, render any resulting injury reasonably foreseeable. This was made clear by the High Court in Sayers v Cambridgeshire County Council 2006 EWHC 2029 (Brief 813). The Court accepted that S was overworked, and indeed worked in excess of 48 hours a week. It held, however, that this was not sufficient to make S s subsequent psychiatric illness reasonably foreseeable. The overwork was not of a similar scale to that in the Hone case; and, in the absence of any knowledge to the contrary, S s employer was entitled to assume that she was robust enough to withstand the ordinary pressures of the job. Note that, in addition, the Court held that S could not, as an alternative to negligence, claim breach of statutory duty under the Working Time Regulations, based on the employer s failure to enforce the 48-hour limit. In its view, there was no evidence that Parliament intended to create such a cause of action. Intrinsically stressful jobs In Hartman v South Essex Mental Health and Community Care NHS Trust and other cases 2005 ICR 782 (Brief 775) the Court of Appeal considered six stress appeals, four of which concerned foreseeability. Perhaps the most interesting was Melville v Home Office, which involved M, a prison officer, whose duties included the recovery of the bodies of prisoners who had committed suicide. In May 1998, M helped to cut down a body and attempt revival. He subsequently developed a stressrelated illness, and retired on ill-health grounds in The county court found in M s favour on foreseeability, and the Home Office appealed. Before the Court of Appeal, the Home Office referred to the Hatton guidance, arguing that, since it knew of no particular vulnerability on M s part, it had been entitled to assume that M was up to the normal pressures of the job. The Court disagreed. Those parts of the Hatton guidance relied upon by the employer were primarily intended to assist judges considering whether an employer ought to have foreseen the risk of psychiatric injury. In this case, the employer had plainly foreseen that such injury might be suffered by employees exposed to traumatic incidents Home Office documents noted that persons called upon to deal with suicides might sustain injuries to their health and that they should receive support from the prison care team. The Court noted, however, that the mere fact that an employer offers a counselling service should not lead to the conclusion that it has foreseen the risk of psychiatric injury to employees. Furthermore, as the Hatton guidance stated (see above), the availability of such a service will mean that the employer is unlikely to be found in breach of its duty of care even if harm is foreseeable. Physical injury The principles established in Hatton apply equally where an employee claims that he or she has suffered physical rather than psychiatric injury as a result of an employer s breach of duty. This point was emphasised by the Court of Appeal in Harding v Pub Estate Co Ltd 2005 EWCA Civ 553 (Brief 783), where the employee concerned had suffered a heart attack. On the facts, however, the Court decided that H s injury had not been reasonably foreseeable where he had failed to notify his employer 16 i Employment Law Brief 848 March 2008

4 that his working conditions were having an adverse effect on his health; he was an experienced publican able to manage his own hours; and there was nothing to suggest that he was particularly vulnerable. Return-to-work programmes In Garrod v North Devon NHS Primary Care Trust 2006 EWHC 850 (Brief 812) the Trust, knowing that G had already suffered one mental breakdown, failed to prevent her suffering a further two breakdowns, triggered by her having to cover for absent colleagues. The Court upheld G s negligence claim, stating that an employer of the Trust s size and resources ought reasonably to have foreseen the risks of psychiatric harm this situation posed to an individual of known vulnerability, and put appropriate support in place. Moreover, having imposed careful return-to-work programmes after G s first two breakdowns, the Trust had failed to comply with them. Although the Trust had been under no obligation to offer G a return-to-work programme, having done so it could not complain if its failure to adhere to its terms resulted in its sustaining liability. Damages in negligence claims One of the key concerns for employers is the potential financial cost of a successful negligence claim. Damages are not limited by statute and can include compensation for pain, suffering and loss of amenity, along with past and future loss of earnings. Given this, awards can be huge, as evidenced by Green v DB Group Services (UK) Ltd 2006 IRLR 764 (Brief 812). There, G, a company secretary assistant, suffered two mental breakdowns and a major depressive illness having been bullied by colleagues. The High Court found that G s employer was liable in negligence and awarded her 800,000 in compensation, the majority of which was in respect of future loss of earnings. Note that damages will only be assessed to the point at which an employee would have developed a stress-related illness in any event regardless of the employer s breach of duty in Daw (see above), the Court reduced the general damages of 24,000 by a third in recognition of the chance that D would have suffered from depression even if IC Ltd had reduced her workload when problems became apparent. Bullying and harassment A common cause of stress-related illness in the workplace is bullying and harassment. An employer may be both directly liable in negligence where he fails to take reasonable steps to protect an employee from bullying, and vicariously liable for acts of bullying carried out by other employees this was the case in Green (above). Aside from negligence, an employer can also be directly or vicariously liable for bullying and harassment under the Protection from Harassment Act 1997, and the various pieces of discrimination legislation. Protection from Harassment Act As the House of Lords stated in Majrowski v Guy s and St Thomas s NHS Trust 2006 ICR 1199 (Brief 810), an employee may bring civil claims against the employer under the Protection from Harassment Act 1997, arguing that the employer is vicariously liable for the statutory tort of harassment committed by one of his employees. The PHA does not define harassment, thereby potentially covering a wide variety of circumstances. However, to fall within the protection afforded by the Act, the victim must have been subjected to a course of conduct, that is, conduct on at least two occasions S.7(3). Furthermore, for the offence to be made out, it must be shown that the perpetrator knew or ought to have known, objectively judged, that the course of conduct amounted to harassment S.1(1) and (2). Unlike common law negligence claims, there is no requirement under the PHA to show that harm was foreseeable. For more details on the PHA, and the difficulty of establishing liability thereunder, see the Forewords and the case of Conn v Council of the City of Sunderland 2007 EWCA Civ 1492, reported on page 8. Discriminatory harassment The various pieces of discrimination legislation outlaw harassment on the grounds of sex, race, disability, sexual orientation, religion or belief, and age. Essentially, such harassment occurs where, on one of the protected grounds, A engages in unwanted conduct which has the purpose or effect of violating B s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. The legislation see, for example, S.32 of the Race Relations Act 1976 provides that an employer will be liable for workplace harassment carried out by his employees, unless he has taken reasonable steps to prevent this from occurring see IDS Employment Law Supplement, Bullying and Harassment (2007) for further details. Importantly, in Essa v Laing Ltd 2004 ICR 746 (Brief 751), the Court of Appeal confirmed that personal injury arising out of acts of discrimination do not (as in negligence claims) need to be reasonably foreseeable in order for employees to recover damages. The question is simply whether the discrimination caused the injury to occur. As with the PHA (see above), the discrimination legislation creates statutory torts, which impose absolute liability. Constructive dismissal The law implies into every contract of employment certain terms that impose duties on employers. In the context of work-related stress, three in particular are relevant: the duty not to do anything calculated or likely to destroy or seriously damage the trust and confidence between employer and employee; the duty to provide reasonable support to employees; and the duty to provide a safe workplace. A breach of any of these duties may entitle an employee to resign and claim to have been i Employment Law Brief 848 March

5 unfairly constructively dismissed S.95(1)(c) ERA. Of course, such a breach might also give rise to a common law claim for personal injury, where an employee suffers a psychiatric injury as a result (see Employers liability above). For a topical discussion on the relationship between unfair constructive dismissal claims and common law stress claims, see GAB Robins (UK) Ltd v Triggs 2008 EWCA Civ 17 on page 9 of this Brief. Disability discrimination An employee suffering from a stress-related illness may be protected by the Disability Discrimination Act 1995 (DDA). A disability for these purposes is a physical or mental impairment which has a substantial and long term adverse effect on [a person s] ability to carry out normal day-to-day activities S.1(1). Long-term impairment, for this purpose, means an impairment that lasts, or is likely to last, at least 12 months. This requirement ensures that temporary or short-term stress-related conditions do not attract the DDA s protection, even if they are severely disabling while they last. Prior to 5 December 2005, employees claiming DDA protection on the basis of a mental impairment had to show that they were suffering from a clinically wellrecognised mental illness, such as depression or posttraumatic stress disorder. This requirement was removed because many people with severe mental illnesses did not have a clear diagnosis or may have had different diagnoses at different times. Accordingly, it is now more likely that an employee suffering a stress-related illness will be able to claim protection. However, employment tribunals will still need to be satisfied by expert evidence as to the existence of the alleged impairment. Duty to make reasonable adjustments If an employee s stress-related illness amounts to a disability, employers are under a duty to make reasonable adjustments to any provision, criterion or practice made by or on behalf of the employer that places the employee at a substantial disadvantage compared with nondisabled people. A failure to do so constitutes disability discrimination Ss.3A(2) and 4A DDA. The duty is to make all reasonable adjustments that will enable the employee to continue in his or her job. Accordingly, redeployment might not amount to a reasonable adjustment unless continuation in the current job is not possible. Examples of reasonable adjustments for an employee suffering from a stress-related illness include: altering work content; providing support; shortening or altering working hours; an increased tolerance of absenteeism; allowing extra holiday or unpaid leave; permitting absence for treatment; and allowing for rehabilitation following absence. Handling stress dismissals Although employers should remain sympathetic to an employee who is suffering from a stress-related illness, there may come a time when they need to consider dismissal. When that point is reached, employers must ensure that they approach dismissal in the right way or they could face claims of both unfair dismissal under the ERA and disability discrimination under the DDA. Unfair dismissal Ill health is a potentially fair reason for dismissal as it relates to the employee s capability to do his or her job. In such a case, the first step in an employer s procedure should be to establish as best he can the employee s true medical situation. Furthermore, case law has established that, before dismissing for long-term absence, an employer must consider whether alternative work is available or whether there are steps that can be taken that would allow the absent employee to return to his or her existing job. An employee who suffers a stress-related illness as a result of bad management or workplace bullying will feel hard done by if that illness leads to dismissal for longterm absence. After all, the illness and therefore the absence was the fault of the employer. The question then arises, can the employer dismiss fairly in these circumstances? The answer, following the Court of Appeal s decision in McAdie v Royal Bank of Scotland plc 2007 IRLR 895 (Brief 838), appears to be yes. The Court there held that while a tribunal had been entitled to take into account the employer s fault in failing to deal adequately with the employee s stress problems, it had failed to ask itself whether dismissal was a reasonable response in the circumstances. If it had done so, it could only have found, on the particular facts of the case, that dismissal was reasonable. The employee had no prospect of recovery, and had expressly stated that she would never return to work. The Court did, however, approve the EAT s suggestion that, in such cases, it may be necessary for the employer to go the extra mile in finding alternative employment for an employee who is incapacitated by the employer s own conduct, or to put up with a longer period of sickness absence than would otherwise be reasonable. Disability dismissals When considering dismissing an employee who is suffering from a stress-related illness, it is essential to consider whether that illness amounts to a disability under the DDA (see above). Employers will be guilty of disability-related discrimination if they dismiss an employee for a reason related to his or her disability where they would not dismiss others to whom that reason does not apply, unless they can show that dismissal was justified S.3A(1) DDA. Factors that might be taken into account in deciding whether dismissal was justified include lengthy absences, health and safety risks associated with the employee s job and, importantly, whether all reasonable adjustments have been carried out to enable the employee to continue. 18 i Employment Law Brief 848 March 2008