STRESS AT WORK. pressures or types of demands placed on them. 2. It is a reaction, not an illness in itself. Its effects are shown in psychological

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1 STRESS AT WORK DEFINITIONS 1. The HSE has defined stress as the adverse reaction people have to excessive pressures or types of demands placed on them. 2. It is a reaction, not an illness in itself. Its effects are shown in psychological conditions, such as anxiety or depression, and physical health problems, such as heart disease. Recovery for stress is therefore an aspect of personal injury whether psychological or physical. 3. ACAS say Don t confuse positive pressure, which can create a buzz, and the harmful effects of pressure that is beyond a person s ability to cope. 4. Bullying is not defined anywhere in the legislation. However, the Andrea Adams Trust state When we talk about bullying at work we are referring to an abuse of power or position. It is offensive discrimination through persistent, vindictive, cruel or humiliating attempts to undermine, criticise, condemn, and to hurt or humiliate an individual or group of employees. 5. ACAS have a produced a leaflet about bullying and harassment which points out These terms are used interchangeably by most people, and many definitions include bullying as a form of harassment. Harassment, in general terms is unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability,, religion, sexual orientation, nationality or any personal characteristic of the individual, and 1

2 may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient. Bullying may be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. JURISDICTION 6. When faced with a stress at work claim, early decisions have to be made as to whether the appropriate forum is the employment tribunal, the civil courts or both. 7. The possible causes of action raised by a stress at work claim are as follows: a. Breach of the employer s duty of care at common law or as a result of breach of European Law/Statutory duty ; b. A claim under the Protection from Harassment Act 1997; c. Breach of contract the implied duty of trust and confidence; d. Discrimination - where psychological injury is caused by or is the subject of discrimination. e. Unfair dismissal claims causing financial loss arising out of psychological injury. 2

3 8. Claims in the employment tribunal are outside the scope of this talk. I am going to talk primarily about employer s liability either at common law or as a result of breach of their duty imposed by European legislation. STATUTORY DUTIES 9. The Management of Health and Safety at Work Regulations 1992 came into force on 1 st January 1993 and were replaced by the Management of Health and Safety at Work Regulations 1999 ( Management Regulations ) on 29 December The Management Regulations provide: 3. (1) Every employer shall make a suitable and sufficient assessment of- (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work: and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him or his undertaking. For the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. Regulation 6 imposes a health surveillance requirement:.. as is appropriate having regard to the risk to their health and safety which are identified by the assessment. 3

4 Regulation 13 provides (1) Every employer shall, in entrusting tasks to his employees, take into account their capabilities as regards health and safety. (2) Every employer shall ensure that his employees are provided with adequate health and safety training- (a) on their being recruited into the employer s undertaking; and (b) on their being exposed to new or increased risks because- (i) their being transferred or given a change of responsibilities within the employer s undertaking, (ii) the introduction of new work equipment into or a change respecting work equipment already in use within the employer s undertaking, (iii) the introduction of new technology into the employer s undertaking, (iv) the introduction of new system of work into or change respecting a system of work already in use within the employer s undertaking. 3. The training referred to in paragraph (2) shall- (a) (b) be repeated periodically where appropriate; be adapted to take account of any new changed risks to the health and safety of the employees concerned; and 4

5 (c) take place during working hours. Regulation 22 Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings. 10. The Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 provides with effect from 27 th October 2003: For regulation 22 there shall be substituted the following regulation- Restriction of civil liability for breach of statutory duty 22. Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as the duty applies for the protection of persons not in his employment 11. So for employees, a breach of the Management Regulations became actionable in civil proceedings. This was not however retrospective. 1 However, section 69 of the Enterprise and Regulatory Reform Act 2013 removed civil liability for breaches of Regulations, where the breach occurred after October The HSE guidance Tackling Work Related Stress recommends employers evaluate the risk of occupational stress by reference to the following 7 risk factors: a. Culture b. Demands 1 Sayers v- Cambridgeshire County Council [2006] EWHC

6 c. Control d. Relationships e. Change f. Role g. Support, training and factors unique to the individual. 13. The Working Time Regulations 1998 imposes a maximum working week of 48 hours. However, regulation 5 allows the employee to enter into a written agreement to work longer. Accordingly, it must not be assumed that a working week longer than 48 hours will automatically be presumed by the courts to give rise to a foreseeable risk of injury. 14. The employer owes duties at common law in both tort and an implied term of the contract of employment to take reasonable care for the of the employee s health and safety. For all practical purposes the duty is the same. 15. It is an implied term of the contract of employment that each party treats the other with trust and confidence. Lord Slynn in Malik v- BCCI [2001] UKHL 13, stressed that the conduct has to be unjustified and serious, not trivial:. the implied mutual obligation of trust and confidence applies only where there is no reasonable and proper cause for the employer s conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the implied obligations. 6

7 COMMON LAW LIABILITY FOR STRESS AND BULLYING 16. The general law of tort applies for psychiatric injury arising from stress and bullying at work, without special control mechanisms (Hatton proposition 1). 17. The necessary constituents for a claim in tort namely the existence the duty of care; breach of that duty; reasonable foreseeability that breach will cause damage; and causation of that damage by that breach. 18. In contract it is necessary to show a breach of an express or an implied term. In theory, claims in contract may not require the same proof of damage 2 but in practice the difference is insignificant. Direct Liability of Employer 19. It is important to distinguish between systemic failures of the employer and the actions of individual managers or fellow employees. Employers will be directly liable for systemic failures but they may also be vicariously liable for individual actions of their employees. Vicarious liability of Employer 2 See comments in HL in Johnson v NEI International Combustion Ltd [2007] UKHL 39. 7

8 20. Vicarious liability is the liability of a person, even if that person is blameless, for the acts of another. In personal injury clams it usually arises by way of liability of an employer for the acts or omissions of his employee. 21. The principles of vicarious liability can be very useful in bullying claims. There are often difficulties in establishing foreseeability in systemic breach claims for psychiatric injury. However, where a bully can be identified whose acts are in the course of his employment then the bully s knowledge, where he can see the effect on the recipient, and if it is a sustained campaign then it will be difficult for the bully to argue he wasn t aware of the effect and his employers as the person vicariously liable for his acts. FORESEEABILITY 22. Proof of foreseeability of injury as a result of the breach is usually the single most difficult issue in stress and bullying claims. The Hatton practical propositions 2-7 consider aspects of this issue. 23. The literature considered by CA in Hatton dated back to As awareness of occupational stress becomes more highly focussed and acute the Hatton principles have to be interpreted in the light of the evolving knowledge and practice. The Hatton practical propositions have to be considered together with the requirement for risk assessment which has put a different dimension to it in terms of requiring an employer to be more pro-active. 8

9 24. Proposition 2 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). 25. The duty applies to particular employees. At common law, before an employer has to do anything, the employer has to foresee that the Claimant (as opposed to anyone else) was going to suffer a psychiatric injury (as opposed stress). This is very difficult to prove. 26. Post 27 th October 2003 a suitable and sufficient risk assessment would have identified occupational stress at work. The guidance follows 5 steps to risk assessment. In trying to identify the hazard there are quantitative methods as well as qualitative methods. 27. Proposition 3 Foreseeability depends upon what the employer knows (or ought reasonably to know) about individual employee. Because of the nature of mental disorder, it s harder to foresee than physical injury, but it may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressure of the job unless he knows of some particular problems or vulnerability. 28. A proper risk assessment would involve consulting with employees about what he or she considers stressful. 9

10 29. Proposition 4 The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health. 30. Proposition 5 Factors likely to be relevant in answering the threshold question include: (a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing the job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? (b) Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there a reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others? 31. A proper risk assessment would have identified most these features to alert an employer. 10

11 32. Proposition 6 The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers. 33. If the organisation provides a culture where employees feel they can explain that they are suffering from work related stress without fear of victimisation and they are trained to be able to recognise symptoms of stress themselves then this proposition remains valid. 34. Proposition 7 To trigger a duty 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. 35. Employers often rely on the PLAIN enough aspect of this requirement. It is not enough to show that there are non specific complaints or absences. It is not enough to show long working hours. One must stand back and look at the facts as a whole. Should it have been plain and obvious to a reasonable employer that this individual employee was at risk of psychiatric injury? BREACH 36. Once the foreseeability threshold has been passed then the Claimant will have to establish breach. Did the particular breach of duty foreseeably cause the particular injury complained of? 11

12 37. The Claimant has to identify the specific breaches complained of and address each in terms of the contribution of the breach to the Claimant s injury. 38. The starting point is that of Swanwick J in Stokes v- Gust, Keen Nettlefold [1968] 1 WLR 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 a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light common sense or newer knowledge it is clearly bad; but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent. 39. This is the classic exposition of the employer s liability which has been approved by the Lords in Barber. The Hatton propositions should be read with this in mind. 12

13 40. Proposition 8 The employer is only in breach of duty if he has failed to take steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm, the gravity of the harm which may occur, the costs and practicality of preventing it, and the justification for running it. 41. The gravity of the harm is obvious psychological breakdown is a serious and grave injury. 42. Proposition 9 The size and scope of the employer s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution duties. 43. This is not to say that small employers cannot ever be liable. However, the court will be slow to find smaller employer in breach of duty unless the pressure of the job is unreasonable or the vulnerability of the employee is obvious over a reasonably long period. 44. Proposition 10 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. 45. Often employers fail to carry out any or any suitable risk assessment but a breach must be shown to have caused the injury and demonstrate that a risk assessment would have averted it. 13

14 46. Proposition 11 - An employer who offers a confidential advice service, with referral to appropriate counselling or treatment, is unlikely to be found in breach of duty. 47. Employers thought this was the way to defeat any stress claims. However, although the existence or otherwise of a confidential advice service may be relevant in establishing whether there had been a breach of duty, its relevance to the particular issues for the particular employee should be considered. 48. In Daw v- Intel and Dickins confidential advice was available. The court said that confidential service was for the employee to go to so that they did not have make damaging disclosure to their manager. But in Dickins the claimant had told the manager about her problem. In Daw v- Intel the court said it was not a panacea by which employers discharge their duty. 49. Proposition 12 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. 50. Proposition 13 In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care. 14

15 51. In all cases it is important to identify what the employers could have done. CAUSATION 52. Proposition 14 - The Claimant must show that the breach of duty (not simply stress) was either the sole cause of the injury or materially contributed to it. 53. Often Claimants have pre-existing problems and problems unconnected to work in their lives. There may be others stressors operating in their lives. 54. It is not always easy to establish that it was occupational stress materially contributed to the psychiatric harm. 55. Proposition 15 The assessment of damages will take account of any preexisting disorder or vulnerability and of the chance that the Claimant would have succumbed to a stress related disorder in any event. 56. This proposition is now doubtful. Smith LJ in Dickins, albeit obiter, said Was this not a case of an indivisible injury (the respondent s seriously damaged state following the breakdown) with more than one cause? It was not possible to say that, but for the tort, the respondent would probably not have suffered the breakdown but it was possible to say that the tort had made a material contribution to it. If that is a correct analysis, should not the starting point have been that the respondent was entitled to recover in full? LIMITATION 15

16 57. An action for damages for negligence, nuisance or breach of duty where the damages claimed by the claimant. consist of or include damages in respect of personal injuries shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured. 58. The 3 year limitation period does not apply to claims brought under the Protection from Harassment Act The time limit under that section is 6 years. 59. The time limit to bring the claim in the ET is 3 months. 60. In civil courts the court has a discretion to disapply the limitation period under section 33 of the limitation Act This forms a lengthy subject of how the court exercises the discretion. PRACTICAL CONSIDERATIONS 61. Claims for stress are expensive and the investigation is front loaded and risky by definition. It requires an experienced solicitor to deal with it. It also means going through the occupational records, medical records and a detailed witness statement at an early stage. 62. These cases are difficult and contemporaneous records are vital. A careful note should therefore be kept, together with a copy of any communications with the employer, from the outset if possible. 16

17 63. Employees suffering from some form of psychiatric illness (moderate or severe) very often come along with obsessive detail and it is important to screen carefully what is being said and what is supported by independent witness evidence, medical evidence and occupational records. Stand back and consider the overview. i. Identify nature of the complaint and if suitable for ET then bear in mind the limitation period is 3 months and act quickly. ii. Depending upon the stage at which consulted may have to ask employee to keep a record to build up good evidence; iii. Does employer provide counselling? What steps have been taken to inform employer? What is the evidence of knowledge of employer? iv. If it is excessive workload that is the complaint then see how we can prove this hours worked, are comparators required? nature of excessive work, v. Check medical records to see if previous episodes of psychiatric illness, other problems in private life potentially stressful. vi. Check employment records carefully to see for possible employer s knowledge of likelihood of injury. Is it first breakdown or second breakdown? Does it support the employee s version of events and check where the serious factual disputes likely to be. vii. Independent witnesses. 17

18 viii. Expert evidence expensive so look at medical/gp records of evidence of illness in the first place and then Consultant Psychiatrist. ix. Involve solicitors early to assess and guide expensive and time consuming investigations. x. Most personal injury cases are funded under a conditional fee agreement, commonly known as a no win no fee agreement. This is backed by a policy of insurance. Before entering into a CFA the solicitor carries out a risk assessment. They will want to be confident that the claim is likely to succeed before entering into the agreement. The minimum requirement is 51% prospects but some firms set the bar as high as 75%. Underwriters view stress at work cases as high risk. We have delegated authority to issue policies of insurance in other cases but not in stress at work cases. These are assessed on an individual basis & the premium will be high 20-40% of the cover sought, cover of ,000 is normally put in place. The cost would therefore be 10,000-40,000. Since April 2013, the cost is not recoverable from the employer even in the event of a successful claim & will therefore have to come out of any compensation awarded. In addition, solicitors charge a success fee in the event of the claim being successful, this reflects the fact that the solicitor takes the risk of not being paid if the case is unsuccessful, does not get paid during the lifespan of the claim & usually funds 18

19 disbursements. The maximum success fee that can be charged is 25% of the award made for pain & suffering & loss of amenity (general damages) & past financial losses. This is also not recoverable from the employer. This means that a client will have to pay the insurance premium & success fee from their compensation. This means that many claims may simply not be economically viable to bring. xi. Since April 2013, Claimant s have been given some protection in relation to the Defendant s costs. This is known as Qualified One-way Costs Shifting (QOCS). This means that any order for the Defendant s costs which is made against the Claimant is enforceable only up to the amount of any damages and interest recovered by the Claimant. QOCS protection is lost if the claim is struck out because the Claimant had no reasonable grounds for bringing the claim, the proceedings were an abuse of the court s process or the conduct of the Claimant or someone acting on his behalf obstructed the just disposal of the proceedings. The same protection is lost, conditional on the court s say so, if the claim is found on the balance of probabilities to be fundamentally dishonest. 19

20 GAURANG NAIK 9 GOUGH SQUARE LONDON EC4A 3 DG SHORT BIOGRAPHICAL Gaurang Naik is a Barrister who practices at 9 Gough Square his practice consists of personal injury and commercial work. He has experience in occupational illness and catastrophic injury claims. He is also co-author of Guide to Occupational Illness Claims APIL. Helen Clifford ( ) Partner & head of Personal Injury at McMillan Williams Solicitors She has extensive experience of dealing with complex and high value claims involving a range of injuries including brain injury, spinal cord injury, fatal accidents, amputation and orthopaedic injuries. She has a particular expertise and interest in dealing with claims in the construction industry. Is regarded as an expert in the field & is frequently invited to speak on the subject. She has become known as the "go to" solicitor for accidents on Crossrail. In addition to her fee earning work, she is a campaigner for improved health & safety in the workplace. He acts as Independent Counsel to the SFO and HMRC. He is on the panel of advocates of the International Criminal Court. 20