The age of leisure that had been fancifully anticipated in the 1960s and 1970s has not materialised. On the contrary, it is generally accepted that people are under more pressure both at work and at home than ever before with people travelling long distances to and from work, working long hours and arranging many leisure activities to meet family needs.
An employer faced with an employee claiming stress is in a difficult position, because there is no unified legislation which deals with stress and so employers are faced with dealing with overlapping case law, legislation and regulations.
The first questions employers should ask themselves, when dealing with a claim for stress are, Are the duties and responsibilities of that employee so onerous so as to oblige the employer to make changes? Or are other employees coping and this particular employee suffering stress because of other factors such as his/her particular personality, a difficult family life, financial worries.
There have been a number of cases over the last several years on whether, and if so to what extent, an employer may be liable for psychiatric injury caused by stresses and pressures of work. In one case the Court of Appeal decided that an employer is entitled to assume that an employee can withstand the normal pressures of a job and put the onus upon the employee, up to a point, to raise concerns and make the employer aware that there was a risk to his/her health. Otherwise, stress would not generally be foreseeable and without foreseeability, the employer was not liable. This balance was subsequently redressed somewhat by a House of Lords (now Supreme Court) decision that the overall test remained the conduct of the reasonable employer taking positive account for employee’s safety in the light of what he ought to know.
There have been a number of Court of Appeal Judgments in stress at work claims where the High Court found in the employees’ favour but in the Court of Appeal only a small number of these decisions were upheld. In one of these, the employer was found liable for psychiatric injury due to stress caused by work related factors where the employer’s Occupational Health Department had brought to the attention of the employer the fact that the employee’s depressive condition was caused by work factors and advised that these difficulties should be discussed with the employee. The fact that this information was not acted upon rendered the employer liable for the psychiatric injury suffered.
The other case was where the employer, a prison service, had in place policies and guidance documents for dealing with traumatic incidents which may cause psychiatric injury and provided a counselling system. It had failed to properly implement these systems and procedures with the result that it was held liable for the psychiatric injury of a prison officer for the trauma suffered as a result of having to recover suicide victims. The Court of Appeal did however comment that the provision of an Occupational Health Service did not necessarily mean that psychiatric injury was foreseen and that this facility made it less likely that an employer would be in breach of duty if employees suffered this form of injury.
The cases where the employees’ claims for establishing liability against their employers were overturned all concerned situations where the employer did not know and could not be expected to know of the employee’s health situation.
Another case involved a Post Office worker who went sick with stress caused by the difficulty of coping with new systems of work. He was put under no pressure to come back to work and when he volunteered so to do, the Post Office told him that he was initially free to do whatever he felt that he could do, in order that he could make a gradual return to full duties without endangering his health. Unfortunately, when he returned to work, he did not take it easy and took on so much work that within 2 months, he had again become ill with stress. The Court held that since the Post Office was aware that he was at risk because he had previously been absent due to stress, a recurrence of stress if he was overstretched was foreseeable. The Court also felt that the Post Office worker was not partly to blame for his relapse because leaving him to make his own decisions about how much he could do was not sufficient to discharge the Post Office’s duty of care. It was up to the Post Office to ensure that the arrangements for his return to work actively prevented him from taking on too much.
Conclusions to be Drawn
Generally therefore to succeed in a stress related case, an employee must show the following:
- He/she has suffered a diagnosed mental illness – mere emotional stress is not enough. The law recognises that a certain level of stress at work is normal and distinguishable from diagnosed mental illness caused by stress, which may be actionable
- The stress is wholly or partly caused by work-related factors and not due to external factors such as divorce or family bereavement
- Such stress was foreseeable and could have been avoided if reasonable steps had been taken by the employer
- That the employer failed to take such reasonable steps to avoid or alleviate the stress
Employers are advised to put procedures in place which firstly identify any problem and thereafter be able to take remedial action. Such measures would include:
- Regular employee performance reviews which allow an employee to raise any particular difficulty
- Monitoring employee absence so that if stress or mental illness is given as a reason for absences, appropriate investigations can be initiated
- Establishing grievance procedures to allow an employee to bring a formal complaint
- Ensuring that appropriate procedures are in place to deal with matters such as Health and Safety regulations, discrimination and Working Time Regulations
- Offering a confidential counselling service to employees with access to treatment
Employers have a very wide ranging obligation to ensure that employees are prevented from injury and this duty extends to mental illness caused by work related stress. Establishing procedures which can identify any particular problem and then enable sensible action to be taken will not only provide support for employees, but will also enable an employer to defend successfully any stress related claims if they arise.