Stress in the workplace: the legal claims that can result
Kate Brittin of Lewis Silkin provides employers with guidance on how stress in the workplace can result in legal claims.
Introduction
According to Health and Safety Executive estimates, five million UK workers feel 'very' or 'extremely' stressed and half a million think that job stress is making them ill. While job stress can be a good motivator, too much can affect workers' health and lead to problems with performance and attendance. In this week's article we look at how this can turn into legal claims.
What is stress?
'Stress' is in itself not an illness, despite the fact that many doctors will put it on a medical certificate. The Health and Safety Executive defines it as 'the adverse reaction people have to excessive pressure or other types of demand placed on them'. Long-term or (severe) one-off stress can, however, result in real physical and/or mental illness.
What claims can it give rise to?
Personal injury
Constructive dismissal
Unfair dismissal
Discrimination
Disability discrimination
Criminal offences
A personal injury claim in this context is an allegation that the employer has failed in its duty to take reasonable steps to ensure an employee's safety and to protect him or her from reasonably foreseeable risks.
Where an employee:
suffers a recognised illness (eg clinical depression);
as a result of the employer's negligence; and
the employer could reasonably have been expected to foresee that it might happen
the employee can recover unlimited damages for the illness, including damages for loss of income, pain and suffering, and loss of amenity (which could include loss of enjoyment of hobbies, the loss of the ability to form relationships, etc). This type of claim is brought in the High Court or county court.
The Court of Appeal's judgment two years ago in Sutherland v Hatton [2002] IRLR 263 CA emphasised the difficulties that employees face in trying to get damages from their employer for the effects of work-related stress. The guidance set out by the Court of Appeal in Sutherland was widely hailed as a watershed that significantly reduced the prospects of success for employees pursuing personal injury claims for stress-induced psychiatric damage. The court said that employees have to show that a stress-related injury was both foreseeable and caused by work-related pressures (rather than, for example, domestic or financial problems). Moreover, employers can generally take employees at face value and assume that they are up to the demands of their job, with the onus being on an employee to alert management if stress-related problems occurred.
Sutherland was one of four cases heard together and in one of those cases (Barber v Somerset County Council [2004] All ER (D) 07 (Apr) HL) the employee appealed to the House of Lords. Mr Barber was head of maths at a secondary school. He was demoted in a restructuring exercise, and ended up doing much the same work for less money and with less support. In order to maintain his former salary level, he took on extra work, which increased his hours to between 61 and 70 hours a week.
During 1995, Mr Barber started developing symptoms of depression. In May 1996, his doctor signed him off work for depression brought about by his workload, although he returned to work three weeks later. On his return, he had a meeting with the headmistress and told her that he was finding things difficult. A few weeks later, he told one of the deputy heads that he could not cope and that the situation was becoming detrimental to his health, without being more specific. Over the summer holidays, Mr Barber continued to suffer symptoms of stress but he did not see his doctor until October. In November, he lost control in the classroom and was advised to stop work immediately. He accepted ill-health retirement in March 1997.
The trial judge held that his injuries were the result of negligence on the part of the school. The headmistress had had a 'clear warning' that he needed help to carry out his duties: he had told her that he was having difficulty coping and that his health was declining. As Mr Barber had already had time off work due to 'stress', the school should have known that he was more vulnerable than other teachers with a similar workload. In the judge's view, the school should have investigated his situation to see what could be done to help him, and it was its failure to do anything that had led to his failure to cope and his suffering depression caused by stress at work. Mr Barber was awarded just over £100,000 damages.
The Court of Appeal overturned this decision, holding that, because Mr Barber had not told the school that the stress-related problems that he had previously brought to its attention were continuing, it could not have been expected to realise that he was still in trouble. For this reason, his illness was not 'reasonably foreseeable' and his employer was not in breach of its duty of care towards him when it failed to take steps to prevent it.
The House of Lords disagreed and by a four to one majority allowed Mr Barber's appeal. According to the majority, the mental breakdown that Mr Barber had suffered had been brought about by the pressures and stresses of his workload and his employer was in breach of its duty to protect his health and safety (though the law lords said the case was 'fairly close to the borderline'). The school ought to have taken proactive steps to reduce Mr Barber's work-related anxieties by, for example, making sympathetic enquiries and reducing his workload.
On its facts, the decision in Barber is not particularly surprising, but it does seem to represent a step back from the restrictive guidelines propounded by the Court of Appeal in Sutherland, which were given only lukewarm approval by the Lords. However, the core principles governing stress claims as set out above - in particular that the damage must have been caused by work-related pressure and that the employer should have foreseen it - remain the same.
Employers are also under two implied contractual duties that are relevant in cases of stress at work, these being:
the duty to take reasonable care to protect workers' health; and
the duty not to act in a way that destroys mutual trust and confidence.
Breaching either of these implied terms can amount to a fundamental breach of contract entitling the employee to resign and claim wrongful and/or unfair constructive dismissal. However, for the employee to win, the employer's breach must be very serious.
This issue arose in Marshall Specialist Vehicles Ltd v Osborne [2003] IRLR 672 EAT . Ms Osborne was a financial director of a company that was in difficulties and she voluntarily took on extra work and worked very long hours. She did not complain about the extra work until after her doctor had told her that her health was suffering, although she had been tearful on a number of occasions at work and told a colleague that she did not seem to be able to cope. When she did complain about her workload, she failed to mention that it was affecting her health. Ms Osborne eventually resigned, claiming constructive dismissal. She worked her notice but suffered a nervous breakdown during it.
The employment tribunal tried to create a new implied contractual duty for employers: basically the duty to prevent employees taking on workloads so stressful that they could foreseeably damage their health. The Employment Appeal Tribunal rejected this new term, however, and the law remains that the employer's conduct has to be so bad that it is a fundamental breach of either the health and safety or the mutual trust and confidence obligation. The court was heavily influenced by the Court of Appeal's ruling in Sutherland v Hatton (see above) and essentially applied the same approach to stress-based constructive dismissal claims.
Until recently, stress-type issues were thought to be irrelevant to an ordinary unfair dismissal claim in that employment tribunals did not award damages for non-financial loss. However, the position may have been changed as a result of the decision in Dunnachie v Kingston upon Hull City Council [2004] IRLR 287 CA, in which the Court of Appeal held that damages are possible for 'real injury to self respect'. This could include injury to feelings and/or psychiatric damage caused by the manner of a dismissal.
For example, an employer that puts an employee through an unfairly stressful disciplinary process that causes him or her some psychiatric injury (or even just a lot of distress) could face a claim for damages in respect of those elements. Awards in total in unfair dismissal claims cannot exceed the statutory ceiling (currently £55,000). However, adding a stress claim in might significantly increase the potential damages and make it more difficult and expensive for the employer to fight the case, particularly if medical evidence is needed. This may have the effect of pushing up the costs of reaching financial settlements with employees on termination of their employment. It should be noted, however, that the employer's appeal to the House of Lords in Dunnachie was recently heard, with judgment expected soon, so the legal position remains unresolved for the time being.
Where race, sex, disability, religious or sexual orientation discrimination causes stress, this can lead to an increase in the compensation awarded by the tribunal. This may be in the 'injury to feelings' element of the award, but if the effect of stress causes a psychiatric injury this too can be compensated.
Damages for psychiatric injury in discrimination claims differ from those in personal injury claims in that the worker does not have to show that his or her employer should have been able to foresee the suffering.
In a recent case involving a construction worker, the issue was whether an employer could be liable for injury that it had caused, but which was not a 'reasonably foreseeable' consequence of its actions. Essa v Laing Ltd [2004] IRLR 313 CA involved a 'grotesquely offensive' and racially abusive comment made to a black construction worker, Mr Essa, who was also a successful amateur boxer. This caused him to suffer serious psychiatric illness, which in turn affected his boxing career and shattered his confidence in looking for work. According to the Court of Appeal, the test is not whether the employer could or should have foreseen that the discrimination would have such a bad effect on the employee, but whether it actually did so. If it did, the employer is liable unless the worker did not take reasonable steps to mitigate the damage.
There is no cap on the compensation that can be awarded in a discrimination claim but the Court of Appeal held in Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA that there should be three bands of compensation for injury to feelings, these being:
£15,000 to £25,000 for the most serious category;
£5,000 to £15,000 for less serious cases; and
£500 to £5,000 for the least serious cases.
Although there can be separate awards for injury to feelings and psychiatric injury in an appropriate case, in HM Prison Service v Salmon [2001] IRLR 425 EAT the Employment Appeal Tribunal stressed that, where separate awards are made, tribunals must be alert to the risk of compensating essentially the same suffering twice under different heads.
If the condition suffered by a stressed employee is sufficiently serious, it could amount to a disability under the Disability Discrimination Act 1995, and dismissal of the employee or a failure to make 'reasonable adjustments' could amount to unlawful discrimination.
Stress in itself is not a disability for the purposes of the Disability Discrimination Act 1995 (Morgan v Staffordshire University [2002] IRLR 190 EAT), but a stress-related condition might be if it amounts to 'a physical or mental impairment' that has 'a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities'.
'Physical impairments' caused or made worse by stress might include a heart condition, migraines, epileptic fits and digestive problems. All these are capable of amounting to a disability. In MT Tiquin v Abbey National plc [1999] ET/2400947/98 the employee was transferred to a new position that she found to be highly stressful. This caused a recurrence of her irritable bowel syndrome, and she went on long-term sick leave, which led to her dismissal. She claimed that her employer had breached its obligations to her under the Disability Discrimination Act 1995 in that it should have made reasonable adjustments to her workplace (by transferring her to a less stressful job). The tribunal decided that her condition amounted to a disability.
For a 'mental impairment' to amount to a disability it must be one that is clinically well recognised, such as depression, and should be backed up by expert medical opinion, not just a GP's sick note. A simple statement that someone is suffering from depression will not be enough. In Morgan v Staffordshire University [2002] IRLR 190 EAT, Ms Morgan had been assaulted by a female supervisor whilst at work and resigned claiming constructive dismissal and mentioning the stress and anxiety that the assault had caused her. She later added a claim of disability discrimination. No medical evidence was given at the tribunal, although copies of her medical notes were produced. These referred to 'anxiety', 'stress' and 'depression'. According to the Employment Appeal Tribunal this was not enough to establish a mental impairment for the purposes of the Disability Discrimination Act 1995.
It is unlawful discrimination under the Disability Discrimination Act 1995 for an employer to treat disabled persons less favourably than other persons for a reason relating to their disability unless it can show that the treatment is justified. For example, the dismissal of an individual because he or she is off sick with clinical depression caused by stress could amount to unlawful discrimination unless it can be shown that the reason for that treatment was justified.
It would also be unlawful discrimination to fail to make reasonable adjustments. Under the Disability Discrimination Act 1995 this duty applies where any physical feature of premises occupied by the employer or any arrangement made by or on behalf of the employer causes substantial disadvantage to a disabled person compared with non-disabled people. The employer has to take reasonable steps to prevent that disadvantage. For example, if an employee suffering from a mental impairment as a result of a stressful workload told his or her employer that, unless the workload was reduced, he or she could not continue to work and the employer failed to reduce the workload without good reason, this could amount to unlawful discrimination under the Act.
Employers' duties under the Health and Safety at Work etc Act 1974 include:
ensuring, as far as is reasonably practicable, the mental as well as the physical health, safety and welfare at work of their employees;
providing and maintaining a working environment that is safe and without health risks, which includes ensuring that employees have adequate training to cope with their job and that they are appropriately supervised;
giving employees whatever information, instruction, training and supervision is necessary to protect them.
Employers must also carry out written risk assessments (under the Management of Health and Safety at Work Regulations 1999) to identify any hazards in the workplace, which includes any work-related factors that could cause serious or long-lasting stress. A risk assessment should also identify who is at risk, and how the risk can be reduced to an acceptable level.
Breaches of the Health and Safety at Work etc Act 1974 and the Management of Health and Safety at Work Regulations 1999 are criminal offences.
Excessive working hours are clearly a potential source of stress and may contravene the Working Time Regulations 1998. For example, an employer's failure to comply with the requirements of the Regulations in relation to the 48-hour maximum average working week is a criminal offence.
Next week's article outlines a stress in the workplace case scenario.
Kate Brittin is a member of the employment team at Lewis Silkin (Kate.Brittin@lewissilkin.com)
Further information on Lewis Silkin can be accessed at www.lewissilkin.com
