Introduction

It is a great pleasure to be able to attend this GQ Employment Law Seminar on Stress at Work! My aim will be to try and complement the paper written by GQ with a contribution on the legal position concerning stress at work and some comments on the proper approach to take to minimise the effects of any legal claims at a later stage.

But first a short note of congratulations to GQ - this Seminar could not be more timely! Understanding the legal side of stress at work is crucial for any modern business for three key reasons which are as evident now as they have ever been.

Firstly, as businesses reduce overheads there is a real risk that they can become under resourced in one area of work or another. Where retrenchment is happening, it is common to find that some employees are asked to do more work than they had ever expected to do or are capable of doing. Most employees are very willing to support a firm in times like these and so can be much less ready to say when they feel under stress in such circumstances.

Secondly, particularly as a result of globalisation, we live very much in a world in which there is a culture of long hours. Long hours are not always stressful but they very easily can be. Workplaces in which long hours are common create their own pressures on employees to conform without complaint. This too can lead to stress at work.

Thirdly, managers are being called on to perform more than ever before and this can mean that in their ambition to succeed they drive those who work for them too far, too fast. It takes insight and wisdom to raise the performance of a team to a new and sustainable level and not merely determination.

Insight and wisdom are the key to dealing with stress at work to make sure that it does not become a distracting and expensive problem. Many managers too often see issues of stress as an issue for someone else to deal with. Comments such as the employee “shouldn’t take on so much”, “is whingeing”, “not pulling their weight”, “should sort themselves out and see the OHP Department/their doctor or talk to their spouse/partner”, or “should work harder when in normal hours”, can too easily be the natural response of the busy manager, who having pronounced moves on to other matters!

What I hope will come out of this seminar is an increased awareness of the dangers about stress at work and the ways to deal with it without it becoming a legal issue, and if it does, how to deal with it sensibly and swiftly.

An overview of the law

There are broadly four strands of law which govern the workplace that are relevant whenever stress at work is or could be an issue.

Duty of care

Firstly all employers and employees within a firm owe each other a duty of care. This duty is both an implied term of the contract of employment and also a duty in tort law. There is no significant difference between these two sources of law in determining the scope of the duty and therefore what it requires in any particular situation.

The duty requires that steps are taken to avoid acts or omissions which it is reasonably foreseeable will cause mental or physical injury. Stress by itself is not an injury but stress can lead to mental injury. Stress is, however, often a sign that someone is about to suffer mental injury in the sense of a mental breakdown. While it is well known that some people can tolerate stress and thrive on it, it is also equally well known that others will crumble under its effects. No one can assume that a person will survive prolonged stress. So showing signs of stress will usually mean that it is foreseeable that unless the stress is addressed, injury may follow.

Hatton v Sutherland

The key case addressing this duty of care is Hatton v. Sutherland[1]. The Court of Appeal had to consider claims by employees for damages in respect of psychiatric injury caused by stress arising from their employment  They held that they should be considered in accordance with the ordinary principles of employers' liability applying the same test in all cases, whatever the employment, of whether the kind of harm to the particular employee was reasonably foreseeable and, once the risk of harm to health from stress in the workplace was foreseeable, whether and in what respect the employer was in breach of his duty to take reasonable care, and whether that breach of duty had caused the harm suffered.

Lady Justice Hale[2] set out the following propositions which are always referred to in stress cases:

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).

Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but 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 pressures of the job unless he knows of some particular problem or vulnerability.

No special cases - The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.

Face value - 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.

Indications must be plain enough - 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.

Reasonable steps - The employer is only in breach of duty 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.

OHP is important - 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.

Duty of mutual trust and confidence

There will not be a breach of the duty of care if there is no mental or physical injury, but that does not mean an employee has no recourse to redress if the stress has not yet caused such injury.

Every contract of employment has an implied term of mutual trust and confidence, and stress which is caused by acts or omissions that are a breach of trust and confidence will be a breach of contract. This could mean that the employee is entitled to resign and claim constructive dismissal. If the employee has sufficient years of service[3] then they would be able to claim unfair dismissal. However even if they cannot claim unfair dismissal then they could still claim for damages for breach of contract in the County or High Court.

Sometimes stress is caused by bullying at work and this will almost always be a breach of contract. So if there are indications that an employee is stressed it is not enough to say that an employee can withstand the pressure of the workplace. It is well to remember what Lady Hale said about normal pressures being expected. Bullying is not normal obviously!

Health and Safety

The Health and Safety at Work Etc Act 1974 and subordinate legislation imposes statutory duties to carry out a risk assessment of the workplace. These duties anticipate that without undertaking a risk assessment of the workplace dangers may arise that affect the health and safety of employees.

The aim of the assessment is to address health and safety issues in anticipation and not in retrospect. The focus will not be particularly on stress, but it has to be recognised that overstressed employees are not safe employees and can therefore easily be a danger to themselves or to their colleagues.

What amounts to overstress? This is a difficult question to provide a simple answer to. Everyone gets stressed at work from time to time. Priorities conflict; work becomes difficult for external reasons; people go sick and have to be covered. There can be a myriad of reasons for stress occurring and indeed some people do indeed find they perform better under some stress and arrange their working life accordingly. Yet we all know that too much stress is a danger. The key is to retain that insight and therefore to be aware of stress at work and to ensure that workers are always operating on the right side of the line. So stress at work is a managerial issue always. A risk assessment ought to ensure that management can make sure that they are alive to stress at work as a potential danger.

Harassment

Sometimes stress at work can be caused by harassment from a manager or merely a fellow employee. The Protection from Harassment Act 1997[4] applies to the workplace and employees can rely on it both to bring civil claims in the County Court and also to bring prosecutions. Employers will be vicariously liable if one of their employees harasses another while at work: Majrowski v Guy's and St Thomas's NHS Trust.[5]

This Act will not be relevant unless there has been a course of harassment. One off acts will not be enough but then one off acts will rarely lead to stress. More over the harassment will have to reach a certain degree of seriousness. The Act is intended to protect against harassment that reaches a level of criminal seriousness.

So it is always essential to have a clear approach to dignity at work and an anti-bullying policy.

Disability rights

Disability is a protected characteristic under the Equality Act. That means that it is unlawful to discriminate at work against a person who is disabled. Unlike other protected characteristics there are four ways in which discrimination on grounds of disability can occur. And harassment on grounds of disability and victimisation of a person who complains of disability discrimination is also unlawful.

The four ways in which disability discrimination can occur are:

  • Direct discrimination - A person (A) discriminates against another (B) if, because of a disability, A treats B less favourably than A treats or would treat others: section 13.
  • Discrimination arising from disability -  A person (A) discriminates against a disabled person (B) if—(a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim; section 15.[6]
  • Indirect discrimination – Where A applies or would apply a provision criterion or practice and it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, and does in fact put, or would put, B at that disadvantage, unless A can show it to be a proportionate means of achieving a legitimate aim: section 19.
  • Reasonable adjustment – Where an employer is under a duty to make a reasonable adjustment for a disabled person but does not do so: section 20 and 21.

Stress and disability

A person is not disabled merely because they are stressed. However a person who is stressed may qualify as a disabled person where that stress has particular effects.

It is key to understanding the scope of this provision to understand that such effects may not have been foreseeable. They may have been entirely unforeseeable but nevertheless have happened. What are those effects that make a stressed person a disabled person?

Essentially a person has a disability if: (a) he or she has a physical or mental impairment; and (b) the impairment has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities.  So if the stress leads to a recognised mental impairment which has this effect then they have the right to be protected from disability discrimination and the right to expect reasonable adjustments to be made in the workplace.

Accordingly, whenever a stress issue arises the question as to whether that person is disabled also arises. If they are not then these duties do not arise – if they are, they do.

How do you go about being sure whether someone is disabled? In the end only an Employment Tribunal can decide this definitively. It is not a decision for a medically qualified practitioner – they sometime get it wrong! OHP practitioners can be very good at advising whether a person is disabled but they can be too close to a company and think that they are doing the company a favour by asserting that someone is not disabled.

There is however plenty of guidance about this.  The EHRC website (www.equalityhumanrights.com/) is a good place to start looking for help. Clinical depression will however nearly always be a disability unless it is reactive and there is no reason to suppose that it will last for more than a year or recur.

Chronic severe depression is always a disability. Distinguishing between chronic and reactive depression is not easy and not a task that should be undertaken by a manager.

There is a pitfall here though. The assessment of whether a person is disabled requires the effects of medical treatment to be disregarded. That makes it much more difficult for an employer to determine whether a person is disabled because they will not necessarily know what medical treatment a person is receiving.

The employee can sometimes be reluctant to inform the employer about their medication. The use of an OHP or a medical assessment can help with this often.

However it is critical to engage with the OHP as soon as possible since it is all too easy for the employee to become suspicious and frightened and therefore not to help with the process. The key is always to try and be ahead of the issue and to take the lead on it.

Sometimes employers argue about depression as a disability. They are fully entitled to do so especially where there is a concern about the scope of a claim by an employee and there is some reason to suppose that there may have been a failure to make a reasonable adjustment. In that case though they must be very careful about the way in which the point is taken since it can too easily lead to a hardening of attitudes. It can sometimes convey the impression that the employer does not wish to engage with a substantive part of the claim and it can cause the employer to lose sympathy with the Tribunal. This is an area of great delicacy in a stress case which needs to be handled in a non-aggressive way. That is not to say that the employer cannot be firm in requiring disability to be proved, but the case should never be put forward in a disparaging way.

Some more about reasonable adjustments

The duty to make reasonable adjustments is quite extensive. The duty has the following requirements:

The first requirement is a requirement, where a provision, criterion or practice of the employer’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. This includes removing the physical feature in question, altering it, or providing a reasonable means of avoiding it.

The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

The employee cannot be required to bear the cost of the reasonable adjustments.

Where an employee is stressed it is likely that it is the first requirement that is engaged. If the stress has caused the person to be disabled then the duty to make a reasonable adjustment obviously arises.  However it is obvious also that if a person could become disabled it would be much better to address the issue before that happens. If the employer can see that this is about to happen then it is likely that there is a breach of the duty of care in the offing. The employer should always wish to avoid a person becoming disabled at work.  So in practice it may well be wise to make some adjustments at the earliest opportunity to avoid this.  In that way a continuous duty to a disabled person may be avoided as well as a breach of the duty of care.

So it can be seen that the statutory duty to make reasonable adjustments ought to inform how it is wise to behave even before a person showing signs of stress has become disabled.

Pre – employment health questionnaires

It used to be common to short-list candidates for employment by reference to pre- employment health questionnaires and some may still be doing this. It is important to remember that the Equality Act 2010 has imposed a constraint on this. By section 60 it is stated that a person (A) to whom an application for work is made must not ask about the health of the applicant (B)— (a) before offering work to B; or (b) where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work.

Only the Equality and Human Rights Commission can bring proceedings to enforce this rule but an employee or would be employee can rely on a breach of this provision to establish a disability discrimination case.

The aim of this provision is to encourage the employment of disabled persons and to make employers think about reasonable adjustments after decisions about recruitment.

The public policy is obvious but it can be seen as a burden on business not to be able to secure a fully fit work force at the point of recruitment. However some employers have successfully turned this point around and seen these questionnaires as a good way to get to know their staff at a very early stage. This could be a way to ensure that a firm can identify who might be prone to disabling stress at an early stage.

Working time and working time regulations

Obviously unless there has been an opt out an employer must comply with the Working Time Regulations. But opt outs are very common, does this mean an employer can require an employee to work all hours?

That would be very unwise indeed. Long hours can frequently be a cause of stress. Long hours stress employees because they are usually associated with heavy and continuous responsibility but also because they can make it difficult for a person to relax and sleep when not at work. They can also cause stress because an employee cannot live a life outside work and so social contacts become diminished and ordinary activities like shopping and so on become more difficult.

The problem of employers insisting on employees working overlong hours has been recognised long ago with the impositions put on junior hospital doctors: Johnstone v Bloomsbury Health Authority.[7]

The Court of Appeal were quite clear that just because an employer was contractually entitled to require an employee to work long hours did not mean that he or she should not take account of a person’s stamina and the foreseeable result of asking an employee to work overlong hours. So it would be completely wrong to assume that by opting out of the controls in the Working Time Regulations an employer can ask an employee to work any hours.

Most reasonable human resource professionals understand this but it is not the case that all managers do. This is a particular problem in some city jobs where there is a need to maintain a market presence 24/7. A failure to address the risks inherent in overwork is almost always going to lead to a breach of contract, a breach of duty and in the final result a disabled person. Stress at work will very often be a first indicator of this.

Some conclusions

It is obvious that sometimes workers can be stressed. The key is to be aware that if employees are stressed the firm is in dangerous territory which can mean that a number of legal obligations will arise.

So, in the first place, stress in workers must be picked up by managers. The costs to the firm in terms of addressing the consequences of unaddressed stress can be very great indeed whether or not the firm can pass the matter on to the insurers. Even in that case there will be staff time that will have to be put into assisting the case. As importantly, disabled employees imposed constraints on a firm’s management of its staff and resources.

So if things do go wrong it is really important to address them as soon as possible.  The right way to do that we will discuss in the seminar. But as GQ say, keeping open the lines of communication and not drawing up the drawbridge will almost always be the best course.

Even where the case seems almost too intractable it can be sensible to seek alternative dispute resolution. Sometimes this can help a great deal. The key is – so far as possible - not to aggravate the effects of stress whether or not there is a defence to any claim.

Of course there are employees that “swing the lead”. A firm approach is completely appropriate where this is the case. But no employer should go into a case concerned with stress at work without a full dose of introspection! It is always sensible to ask: has the firm missed something? Has there been inappropriate behaviour? What could have been done better?

Whatever else happens in the litigation it is almost always a wake–up call for the firm to address the reasons for the stress. It does not necessarily mean that it will happen again. But a well-run firm should not have issues of stress at work and so the recognition that a stress case could be an indicator that there is a problem is vital.

Lastly a word about alcoholism and drug abuse. These are very often associated with stress. They could also be acts of gross misconduct and a firm will frequently have a drugs policy which addresses drug abuse in that way.

An alcoholic or a drug abuser is not for that reason disabled so will not for that reason alone be entitled to the protections of the Equality Act.

On the other hand they may be disabled for other reasons so that the alcoholism or drug abuse is a symptom of a disability. These are difficult cases therefore and it is almost always wise to ensure that clear advice is sought early to try and understand what lies behind such behaviour.

 


[1] [2002] I.C.R. 613.  This case is also called Barber v Somerset County Council, Jones v Sandwell Metropolitan Borough Council and Bishop v Baker Refractories Ltd.

[2] Now Baroness Hale.

[3] Currently one year of service but for employees whose employment commences after the 6th April 2012 it will be two years of service: The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012.

[4] See ss. 1, 3, 10(1) in particular.

[5] [2007] 1 A.C. 224  [2006] 3 W.L.R. 125  [2006] I.C.R. 1199

[6] There is a defence if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[7] [1992] Q.B. 333; [1991] 2 W.L.R. 1362; [1991] 2 All E.R. 293; [1991] I.C.R. 269; [1991] I.R.L.R. 118; [1991] 2 Med. L.R. 139; (1991) 141 N.L.J. 271