1 Tipp FM Legal Slot 25 th September 2012 Workplace Stress & Repetitive Strain Injury Melanie Power, Solicitor What is Workplace Stress? Stress is not an illness in itself but it is characterized by a feeling of not coping. While workplace stress can be a good motivator, too much stress or unrealistic expectations can affect a workers health leading to absenteeism, poor performance resulting in psychiatric injury. According to the Irish Health and Safety Authority workplace stress occurs when the demands of the job and the working environment on a person exceeds their capacity to meet them. The Irish Congress of Trade Unions has identified common causes of occupational stress: lack of training dull repetitive work or highly demanding work poor working relationships poor working environment including lack of space, noise and so on. Job insecurity Inadequate time to complete a job properly No recognition for doing well Uncooperative colleagues Does an Employer have a duty of care towards its Employees? Employers duty extends to not only protection against physical injury but also against psychological injury/ psychiatric injury. Employers have duty to safeguard against stress in the employees working environment which could be considered unreasonable. Employers should ensure that the workplace is free from any risk that could cause the employee to become psychiatrically ill.
2 Firstly, every employee has a contract and there is an implied term in every contract that you are treated with a certain amount of respect and that there is mutual trust between the Employer and Employee. If there is a breach of that duty there is a responsibility on the Employer. Take for example, an employee for an airline who is at a check in desk, delayed flights irate people, would the employee have a case of workplace stress? The Courts have applied a common sense standard which measures whether a certain amount of stress is part of the job. The EE should be given training in diffusing angry client. Where an ER is leaving an EE to deal with such a situation without the proper training on an ongoing basis this prolonged exposure to stress could lead to a psychiatric illness. What are the effects of Workplace Stress for Employers? An employee s inability to relax or take a break can lead to burnout Low morale Increased absenteeism Higher accident rate Risk of legal action taken by employee(s) with occupational stress Is the sum awarded in compensation for occupational stress claims usually relatively small? Employment claims are proportionate the gross earnings and there is a limit on how much compensation can be made. However occupational stress claims are taken as a personal injury, which means the awards are unlimited. They are looked on no different than physical injury accidents at work. EXAMPLE Sweeney -v- Ballinteer Community School  IEHC 131 In March 2011 a teacher was awarded 88,000 by the High Court against the board of management of a school because of the school principal s deliberate and conscious bullying and harassment of her. The principal even hired a private investigator to follow her, which Mr. Justice Daniel Herbert said amounted to most serious harassment. Based on the evidence the High Court established that the teacher suffered psychiatric illness, clinical depression, arising from the continuous bullying by the school principal. The injury was reasonably foreseeable by the principal and there was a breach of the employer s duty of care towards the teacher. While the Board of Management was unaware of the principals actions, as he carried this harassment out in the course of his employment, the School was vicariously liable.
3 Are there conditions to satisfy before a claim in personal injuries for work related stress can be brought? Yes, certain conditions must be met before work related stress can give rise to a claim in personal injury. Recognisable psychiatric illness Employee has to prove that the illness was reasonably foreseeable. i.e such as informing the ER that they are stressed/not coping. Cases have been lost at court where the ER was given no warning sign that the EE could not cope with the usual stress of the job. The injury suffered must have been caused by the workplace. If the condition or injury suffered is unrelated to the workplace the employer will not be held fully liable. The injury suffered must be reasonably foreseeable by the employer. Following the Supreme Court decision in Berber v Dunnes Stores it is a defence if an employer acts reasonable in all the circumstances. Berber -v- Dunnes Stores Ltd  IESC 10 Male employee suffered from Crohn s disease, which is very hypersensitive to stress. Employee was switched from a buyer back into the stores and started to run into difficulty with the Manager of the store. There was consultation and meetings with Mrs. Heffernan. Where do you draw the line between employer s directions and employee s right to respect? Supreme Court ruled that he did not have a case. He had acted unreasonably. There is a mutual responsibility by both the employer and employee. The court looked at the conduct of both the employer and employee and found that the employer s conduct was reasonable and the employee s conduct was not reasonable, in spite of the Crohn s disease and the fact that the Supreme Court accepted that the employee had an overlay of illness as a result of what happened. He was not entitled to succeed in compensation. What can Employers do to minimise the risk of occupational stress for its Employees? Once an employee becomes aware of the work related stress s/he should inform his/her employer immediately so that the employer can take steps to minimise the stress. If the employee approaches the employer saying s/he is under serious stress at work the employer can do something to change this if it is without undue cost. Employers who are aware that the working conditions of its employees are stressful should take steps to reduce workload and/or improve working conditions. Employers should have a safety policy including an occupational stress and stress management policy. Employers should show they support these policies and ensure there is awareness among employees of the existence of the policies and of their commitment to the policies. Also, a company s Safety Statement should outline the duty of care on employees to safeguard their own health and safety at work. Finally, a reasonable and objective test is applied
4 An employer is entitled to accept what is on the face of it e.g. if an Employee is out on a sick cert due to back problems, the Employee cannot, four years later if s/he is out by reason of stress, say then that it was down to stress not back problems. Similarly, if an Employee says s/he is ready to return to work the Employer is entitled to accept that at face value. Repetitive strain injury Repetitive strain injury, or RSI, is an umbrella term used to describe work-related musculoskeletal (muscles, tendons, ligaments, cartilage, bone) disorders affecting the neck, shoulder, arm, wrist and hand. It is often used very loosely to include conditions that are not necessarily related to repetitive strain such as carpal tunnel syndrome or tendonitis (inflamed tendons). What causes RSI? However, the most obvious cause of RSI is repetitive movements, which can cause inflammation of the tendons (the tough tissue that attaches a muscle to bone) of the hand or forearm. This is particularly true if the movements are carried out in an awkward posture and without suitable rest periods. If your work involves prolonged periods of handwriting, typing, microscope or other bench work or other repetitive movements of the fingers, hand or arm you are at risk of developing RSI. If you work with your hands at or above shoulder level, you are prone to developing rotator cuff tendonitis (inflammation of the muscles and tendons around the shoulder joint). Other risk factors include: Poor posture e.g. working with hands above shoulder level. Handling loads. Lack of variation in the task performed. Heavy work load. Poorly organised workstation. Maladjusted chairs. Stress. Boredom. Insufficient rest. The risk of RSI increases with age. Studies have also shown that women are more susceptible than men to repetitive strain injuries, as are those who are unfit. How do I know if I have RSI? RSI typically involves the arm, shoulder, neck and/or chest wall. Typical symptoms include: An underlying ache in the arm, shoulder or neck before onset of pain. Pain or discomfort in the area affected (severity varies with emotion, activity and the weather). Tightness. Stiffness.
5 Numbness. Pins and needles. Difficulty performing the activity that caused the problem. There may also be difficulty with other activities including housework and leisure pursuits. Generalised fatigue is common. Poor sleep patterns. What is the Law on RSI? RSIs are preventable workplace injuries. They occur usually because the employer has done one or a combination of the following: Failed to organize the task to ensure that the employee has a variety of positions and movements to mix it up. Failed to provide adequate rest periods. If the work is repetitive or involves a lack of variety in the workers posture, the statutory 30 minute meal break and 20 minute rest period may not be adequate. Failed to analyse the workspace with an ergonomist. Failed to implement or adhere to an ergonomics plan. Case Studies: 1. Local Brewery A local brewery had a machine for putting lids on cans. It had to be loaded manually with stacks of lids. This procedure was carried out by the employee who had to reach up to near full extension with his arm to load each stack. This procedure was repeated every minute or so, all day long and the employee was not rotated off that machine for several months. He developed a rotator cuff injury to his shoulder. Through our medical and engineering expert witnesses, we were able to establish that the operator could have been spared an injury if he had been provided with a platform from which to load the machine. His case was successful and he received an award of compensation. 2. Local biomedical factory A factory in Tipperary obliged employees to work at a bench where they were employed to examine very small medical devices for quality control. The work was done under pressure of time and the employees were not allowed to take breaks other than the fixed rest periods. Some of the employees developed repetitive strain injuries to their arms, shoulders and necks, others developed lower back pain from being obliged to stand in a relatively fixed position. The system of work was examined by an ergonomist and found to be unsafe and in breach of the employer s health and safety duty to employees. Contact Us
6 If you believe that you, or a loved one, are suffering from occupational stress or if you have been diagnosed with a repetitive strain injury that you believe was caused at your workplace contact Melanie Power at or telephone / Freephone
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