Stress: relevant legislation and case law

In the first of a series of articles on workplace stress, Emma Wills and Andrea Tithecott of Osborne Clarke look at the relevant legislation and case law.

With an increasing focus on employee performance, a greater emphasis on the management of poorly performing employees and a larger proportion of remuneration being based on performance, employees are under more pressure than ever. Stress is the 'bad back' of the 21st century; more and more doctor's notes cite stress as the cause of absence.

Legislation

The main laws relating to workplace stress that employers need to be familiar with are:

the Health and Safety at Work etc Act 1974;

the Management of Health and Safety at Work Regulations 1999; and

the Working Time Regulations 1998.

Health and safety

The Health and Safety at Work etc Act 1974, section 2(1) imposes a duty on employers to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all their employees. In addition, section 3(1) of the Act imposes a duty on employers to protect people who are not employees but who may be affected by employer activities.

The Management of Health and Safety at Work Regulations 1999 require employers to make arrangements to ensure the health and safety of their employees by, for example, performing risk assessments, providing employees with information and training, assessing employees' capabilities and promoting employee well-being through effective health surveillance programmes. In addition, the Regulations protect vulnerable workers (for example, young persons).

Working time

The Working Time Regulations 1998 impose a duty on employers to limit the number of hours that employees work (including night work and shift work). The Regulations apply to a wide range of workers, including part-time, temporary, agency and freelance workers and those on work experience. Young workers are afforded additional protection as the Regulations place further restrictions on their working hours and, in some cases, they may not be permitted to work without the appropriate local authority licence. All these requirements are intended to promote the health and well-being of employees and to limit the possibility of workplace fatigue or stress occurring.

The Regulations provide for a 48-hour limit on the working week, but many employers ask employees to opt out of this limit. This practice may have to change in the near future as other EU member states (such as France and Sweden) are lobbying for the UK's opt-out to be removed. Alternatives that have been considered by the EU include: maintaining the individual opt-out under new rules, but not allowing an opt-out agreement to be signed by an employee within the first four weeks of employment; keeping the opt-out but with a maximum of 60 hours over a six-month reference period; and abolishing the opt-out but allowing employers to use a reference period of 12 months to calculate averages. At the most recent meeting of the Employment, Social Policy, Health and Consumer Affairs Council on 7 November 2006, agreement could not be reached.

Under the Regulations, employees are entitled to a daily rest period of 11 consecutive hours between the end of one working day or shift and the beginning of the next. Employees are also entitled to a weekly rest period of at least 24 hours and a daily rest break of 20 minutes in each six-hour period (unless a collective or workforce agreement states otherwise).

Original guidance on the Regulations from the Department of Trade and Industry stated that employers were not obliged to ensure that employees took their breaks. However, in Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland [2006] IRLR 888 ECJ the European Court of Justice held that this is in breach of the Working Time Directive.

A failure by an employer to comply with the Working Time Regulations is an offence, punishable by a fine of up to £5,000 per employee. The Regulations are enforced by the Health and Safety Executive, local authority or other agencies if relevant.

Case law

The various legislation imposes broad obligations on employers to ensure the health, safety and welfare of their employees not only at work, but also in situations outside it if they are work related. For example, workplace fatigue and stress can result from long working hours or overloading an employee with onerous responsibilities. In both Hone v Six Continents Retail Ltd [2006] IRLR 49 CA and Pakenham-Walsh v Connell Residential and another [2006] EWCA Civ 90 CA the Court of Appeal awarded damages for psychiatric injury, where the employees had worked in excess of the 48-hour limit (without having signed an opt-out). The excessive hours were used as evidence that the damage ought to have been foreseen by the employer.

Workplace fatigue has been blamed for a series of fatal accidents involving employees who have worked excessive hours. For example, an employee's lack of sleep due to excessive working hours was found to have contributed to a fatality in a road traffic accident. This demonstrates that such a finding can be made regardless of whether the employee died at work or outside working hours.

Workplace stress and fatigue go hand in hand. Both can lead to drug and alcohol dependency and other medical conditions. Workplace stress can be triggered by various causes. Workers who have additional difficulties at work because of their vulnerable status and who require the employer to take additional measures to protect their safety (for example, young or disabled persons) may be at increased risk. In the case of disabled persons, employers have an additional duty to comply with the Disability Discrimination Act 1995; in the case of young workers, employers must comply with the specific provisions of both the Management of Health and Safety at Work Regulations 1999 and the Working Time Regulations 1998.

Employers' legal obligations in relation to workplace stress have been reviewed in great detail by the courts. Employers should take note of the principal points arising from Sutherland v Hatton [2002] IRLR 263 CA, which were later approved by the House of Lords in Barber v Somerset County Council [2004] IRLR 475 HL, namely that stress at work claims are not subject to any special control mechanisms; rather, the ordinary principles of employer's liability apply. The threshold question is whether or not psychiatric harm to the employee concerned was reasonably foreseeable; the employer will be in breach of duty only if it failed to take steps that were reasonable in the circumstances.

Employers should keep in mind the overlap between employment law and health and safety law, as considered in Marshall Specialist Vehicles Ltd v Osborne [2003] IRLR 672 EAT. Mrs Osborne resigned because she was being overworked. Her excessive workload led to a nervous breakdown. She went on to claim constructive dismissal. The tribunal implied a term into her employment contract that the employer would take reasonable action to avoid imposing, or acquiescing in her assumption of, a heavy workload that would foreseeably cause mental or physical injury. It found the term had been breached and awarded the maximum compensation for unfair dismissal.

Next week's article will look at managing workplace stress, developing a stress management policy and the Health and Safety Executive's stress management standards.

Emma Wills is a solicitor in the employment department at Osborne Clarke (emma.wills@osborneclarke.com) and Andrea Tithecott is an associate in the health and safety department (andrea.tithecott@osborneclarke.com).

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.