Workplace stress and avenues in litigation

Employers have various statutory and common law obligations in respect of their employees' mental health, both to prevent it being damaged and to act in a fair and non-discriminatory manner when illness occurs. "Stress" is not an injury or disability, however. Generally, it is only once a recognised condition develops that causes of action may exist. In this article, we examine the various ways that the law may be used to seek a remedy in respect of stressful working conditions, both before and after the onset of injury.

In 2001, 13.4 million working days were lost to "stress, depression and anxiety"1."Stress" is a vague concept, however. It has become an accepted part of the lexicon of the law relating to the workplace, but it has no legal foundation or definition. Neither is it even a clearly defined medical concept. The World Health Organisation's International Classification of Diseases ("ICD10") refers at block F43 of Chapter V on mental and behavioural disorders, to the "reaction to severe stress, and adjustment disorders" (our emphasis). These include post-traumatic stress disorder, acute stress reaction (such as combat fatigue), and adjustment disorders involving "subjective distress and emotional disturbance … arising in the period of adaptation to a significant life change or a stressful life event" (such as bereavement, separation or refugee status). "Generalised anxiety disorder" is listed at block F41, but clinical depression does not appear. "Stress" is not an illness in itself for the World Health Organisation: it is a convenient word for describing a set of factual circumstances, which may, or may not, cause a measurable reaction in an individual, depending on their particular level of vulnerability. Indeed, "individual predisposition or vulnerability plays an important role in the risk of occurrence" of the listed disorders.

The NHS Direct online health encyclopaedia takes account of less severe circumstances, however. A reaction to prolonged, minor stressors may be measured in terms of "headaches, nausea and indigestion", or "stress" may be diagnosed if an individual is suffering from one or more of "chest pains, constant tiredness, constipation or diarrhoea, cramps or muscle spasms, craving for food, dizziness, fainting spells, lack of appetite, nail biting, feeling sick, frequent crying, nervous twitches … pins and needles, restlessness, sleeping problems and a tendency to sweat2. Since the ICD10 is used as a guide by the courts in determining what constitutes a psychiatric injury, none of these symptoms are likely to amount to a recognised compensatable injury (although some might bring an individual within the current definition of disability for the purposes of the Disability Discrimination Act 1995 ("the DDA")). Indeed, a diagnosis of "stress" may cause employees to develop expectations of redress should any adverse action be taken by their employer.

Similar expectations may be generated by the Health and Safety Executive's (HSE) definition of "stress" in its managements standards, as: "the adverse reaction people have to excessive pressures or other types of demand placed on them"3 (rather than the cause of the reaction, as the World Health Organisation sees it). Arguably, seeking to define "stress" as the condition rather than the cause does little to help lay people understand their legal rights. There is no legal right not to feel anxious or distressed. Lord Bridge commented in McLoughlin v O'Brian that "anxiety and depression are normal human emotions".

Possible actions

Redress generally becomes possible only once an individual has actually been physically or psychologically injured as a result of their working conditions, or at least at the point where an injunction might be obtained (although the availability of this latter remedy is a matter of some speculation), or where the individual is disabled.

It may be that at some point the legislature will develop an objective definition of "stress" (in terms of the workplace circumstances or the potential cause of a reaction), and a discrete cause of action in respect of excessive levels of it, enabling people with a lower level of suffering to obtain some form of remedy.

In the meantime, only those who are psychologically injured or disabled are likely to have a claim. Nonetheless, some pre-emptive statutory requirements are imposed on employers, and we begin with an examination of how these may be enforced. We will then go on to consider the employer's common law obligations, and will look at the potential for unfair dismissal, disability discrimination and harassment claims.

STATUTORY HEALTH AND SAFETY

The Health and Safety at Work Act 1974 ("the HSWA"), at s.2, imposes obligations essentially equivalent to the common law duty of care. The important difference between the two forms of duty is that under statute, criminal liability is possible. Various different sets of regulations have been enacted under the authority of the HSWA, and as a means to the end of implementing in domestic law the requirements of the Framework Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EC) ("the Framework Directive"), among other Directives.

Those regulations of primary relevance to the workplace stress context are the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) ("the MHSW Regulations") will replace the 1992 Regulations. These Regulations require all employers to carry out risk assessments to identify the steps that need to be taken in order for them to comply with the applicable health and safety duties (reg. 3). Many of these are specific duties imposed by other sets of Regulations, but it is important to note from the outset that the more general obligations, as set out in s.2 of the HSWA, are broadly the same as the common law duty of care (to be examined in detail below). Therefore, any risk assessment should identify those steps required to avoid a reaction that is severe enough to form the basis of a psychiatric injury claim.

The risk assessment

Regulation 3 requires the risk assessment to be "suitable and sufficient". No guidance on what "suitable and sufficient" means is provided in the Regulations themselves, but an Approved Code of Practice ("ACoP") which accompanies them, does provide some. The ACoP is admissible as evidence in criminal proceedings under the HSWA, so a failure to follow its recommendations could have a significant impact on the outcome of any prosecution. At para. 13, the ACoP provides that a "suitable and sufficient" risk assessment: "(a) … should identify the risks arising from or in connection with work. The level of detail in a risk assessment should be proportionate to the risk. Once the risks are assessed and taken into account, insignificant risks can usually be ignored, as can risks from routine activities associated with life in general, unless the work activity compounds or significantly alters those risks."

Given that the range of conditions recognised at common law is restricted, and that difficulties of causation and foreseeability of injury are often formidable, it seems likely that the requirement for the level of detail in the assessment to be proportionate to the risk involved will effectively exempt employers from entering into a high level of detail in respect of potential stressors, and it will be relatively easy to show that a risk assessment is "suitable and sufficient" in this regard. Indeed, the ACoP specifies at para. 13(b) that employers are not expected to anticipate risks that are not reasonably foreseeable. Consequently, the measures an employer might need to take in order to ensure compliance with its health and safety duties (in relation to workplace stress) are not likely to be extensive, other than in occupations where extremely distressing circumstances are routinely encountered. Risk of anxiety for example, can probably be ignored. However, it must be identified first and, perhaps, should not be ignored if there is possibility of extended periods of a level of anxiety that is higher than everyday levels for an individual, as this could lead to more severe complications.

When conducting the risk assessment, para. 15 of the ACoP stipulates that employers should take account of the views of employees and their safety representatives, who will have practical knowledge to contribute. This might well involve discussing with employees how they go about performing their duties. It should involve management, and may involve the use of advisers or consultants to assist with the detail. The HSE's guidance, "Five steps to risk assessment", should be used, and at para. 13(b) of the ACoP it is stated that employers should take reasonable steps to help themselves identify risks. This will involve the use of appropriate sources of guidance (especially HSE publications), other trade press, and relevant examples of good practice in their particular industry.

Where, in response to a risk assessment, an employer decides to take pre-emptive action, reg. 4 of the MHSW Regulations requires this to be done in accordance with the "principles of prevention" that are set out in the Framework Directive, and which are annexed to the Regulations in Schedule 1. These are set out in full in the box below, but most notably include adapting work to the requirements of the individual. This implements the Framework Directive's requirement, at art. 6, for work to be adapted to the worker. So, while the risk of anxiety may be trivial enough to be ignored, employers should take care to account for the idiosyncrasies of individual employees, especially where a known vulnerability in a particular employee creates a risk that a more serious, legally recognised reaction might occur.

Enforcement

In addition to the requirements to conduct a risk assessment, and for this to be "suitable and sufficient", employers with five or more employees are under a further obligation to record the risk assessment (reg. 3(6)), and all employers must provide employees with information on the risks highlighted by the risk assessment, and on any preventive measures to be taken (reg. 10).

Failing to comply with any of these obligations could result in a criminal prosecution against the employer. The MHSW Regulations are "relevant statutory provisions" for the purposes of s.53(1) of the HSWA 1974, meaning that the duties imposed by them are capable of enforcement via the mechanisms provided for by that Act. Enforcement of the HSWA and the Regulations produced under it, is the responsibility of local authorities and the HSE. Enforcing authorities have the power to appoint inspectors, who have wide-ranging powers of entry and investigation. Where an inspector is of the opinion that statutory provisions are being contravened, or that they have been and will be again, an "improvement notice" can be issued under s.21 of the HSWA requiring the contravention to be remedied. Alternatively, where the inspector perceives a risk of serious personal injury, a prohibition notice can be issued under s.22, requiring the employer to desist from the activity in question.

Persons against whom such notices are served may appeal against them in an employment tribunal under rule 2(1) in Schedule 5 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/1171). If the tribunal affirms the notice or there is no appeal, it must be complied with. Failure to comply with a notice, and contravention of any health and safety Regulations (including the MHSW Regulations) are offences under s.33 of the HSWA. The latter is punishable by a fine of up to £5,000 on summary conviction (in the magistrates' court) and an unlimited fine on indictment (in the Crown Court), and the former by a fine of up to £20,000 or up to six months' custody on summary conviction, an unlimited fine, or up to two years' custody on indictment.

Unusually, the MHSW Regulations explicitly provided (at reg. 22(1)) that they did not create a right to bring civil proceedings for breach of statutory duty. Therefore, criminal prosecution at the instigation of the HSE was ostensibly the only means of enforcement. Regulation 22 now provides, following the Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003 (SI2003/2457), that civil actions by persons in the employer's employment are possible. This means of using the MHSW Regulations might even prove to be more effective than criminal prosecutions, given that such prosecutions are rare, and are

likely to be rarer still, in cases of potential reactions to stressors in the workplace. In short, even those pre-emptive requirements that are imposed on employers are unlikely to have any significant deterrent effect other than through compensation claims for breach of statutory duty made after the event, which will require injury to have been suffered.

NEGLIGENCE

As already noted, subjective feelings of distress or anxiety are not enough to form the basis of a claim in negligence. A recognised psychiatric injury must have been suffered. This may include a "nervous breakdown" (Walker v Northumberland County Council), which is a term used to describe the onset of one or more of a number of recognised conditions, including clinical depression. While clinical depression is not an illness listed in the ICD10, a nervous breakdown could be regarded as an episode of "major depression" for the purposes of the Diagnostic and Statistical Manual of Mental Disorders, fourth edition ("DSM IV"), published by the American Psychiatric Association. A nervous breakdown may occur over time, as a result of prolonged exposure to higher levels of anxiety and distress than the individual is capable of coping with, but this does not mean that a claim is possible in respect of such feelings alone. Employers may be under a duty to take all reasonable care for the health and safety of their employees, and therefore to prevent injury being caused by such prolonged exposure (taking extra care where a particular vulnerability is known about or ought to have been known about) but the tort is not committed until an injury is actually suffered. This may be trite law, but the practical implications of the distinction are clearly important.

Suffering an injury is only the beginning, however. As with any negligence claim, it must also be shown that the injury suffered was reasonably foreseeable, and that the circumstances at work were a material cause of it. These are extremely difficult hurdles to overcome, and each case will depend heavily on its own facts. Often, sustaining an injury once will not be enough. In the ground-breaking case of Walker v Northumberland County Council, an area social services officer suffered a nervous breakdown. A rise in the population in the area for which he was responsible, coupled with an increase in the number of child abuse cases that the social workers were required to deal with, had created an increased level of pressure and anxiety.

Mr Walker had repeatedly prepared reports (sometimes in conjunction with colleagues) highlighting the need for re-organisation and offering solutions as to how this might be achieved. His requests were not heeded because the social services department was scheduled for restructuring within two years in any event. Mr Walker accepted this, and carried on with his work. Pressures continued to build until his first breakdown occurred. He was absent from work for a period of at least three months. Prior to his return, the situation was discussed with his superior, and he was promised an assistant to relieve the burden of work. Within a month of his return to work, the assistant was removed. Pressures continued to build as before, in addition to a backlog that had accrued during his absence. After being advised to go on sick leave with stress-related anxiety, he suffered a second nervous breakdown. The High Court held that the local authority had been in breach of its duty of care, but only once the second breakdown had occurred. There was no evidence that people in Mr Walker's position were at a higher than normal risk of psychiatric injury, in response to the workload he was exposed to. However, once he had returned to work following his first breakdown it was reasonably foreseeable that if the pressure of work was not alleviated, a second breakdown might occur. A higher standard of care was required in light of the knowledge of his particular vulnerability, and this standard had not been met. Causation was admitted.

The Court of Appeal in Sutherland v Hatton, in setting out guidance for deciding such cases, did little to improve the prospects of employees being able to bring successful claims after only one injurious episode. The judgment concerned four conjoined appeals (Sutherland v Hatton; Barber v Somerset County Council; Sandwell Metropolitan Borough Council v Jones and Bishop v Baker Refractories Ltd). The guidelines set out by the Court in Hatton were as follows:

  • the standard test for liability in cases of physical injury applies to cases of psychiatric injury;

  • unless the employer is aware or ought to have been aware of a particular vulnerability in the individual concerned, he is entitled to assume that the employee can withstand the normal pressures of the job. The employer is usually entitled to take what the employee tells him about his fitness for work at face value;

  • to trigger the duty to take steps to safeguard the employee from impending harm, the indications of impending harm must be plain enough for any reasonable employer to realise that he should do something about it;

  • the duty is owed to each individual, and the threshold question is therefore whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual concerned. This reaction will have to involve: (1) an injury to health; which (2) is attributable to stressful circumstances at work;

  • the question of foreseeability depends on the relationship between the individual employee's characteristics and the particular demands placed on them. Relevant factors in answering this question will be whether the workload is more than is normal for the particular job; whether the work is particularly intellectually or emotionally demanding for the employee; whether the demands made are unreasonable in comparison with those made of others doing similar jobs; and whether there are signs that others doing similar jobs are suffering harmful levels of stress. In relation to the individual, relevant factors will be whether the employee has a particular vulnerability; whether he has already suffered illness that is attributable to working conditions; whether there have been recent uncharacteristically frequent or prolonged absences; and whether there are indications that these might have been attributable to the employee's working conditions;

  • if the employee or his doctor makes it clear that unless things are changed there is a real risk of mental breakdown, the employer will have to consider ways of altering the situation, but an employer will not generally be obliged to make detailed enquiries;

  • the employer's duty is only to do what is reasonable in all the circumstances, taking into account its available resources, the gravity of the harm that might occur and the risk of it occurring;

  • reasonable steps might include reorganising work, offering a sabbatical, and providing extra cover. An employer that offers a confidential counselling service will not usually be found to be in breach of its duty;

  • the employer is only obliged to take steps that would do some good. If the only realistic course of action is to demote or dismiss the employee, it is for the employee to decide whether to take the risk of injury and continue working; and

  • where a breach has been shown, it must then be highlighted that the particular breach made a material contribution to the harm. It is not enough to show that occupational stress caused the harm.

    These guidelines add to the difficulties already faced by employees in bringing such claims. The employer being able to take the employee at face value (in the absence of any special knowledge) could be seen as at odds with the statutory requirement to conduct a suitable and sufficient risk assessment, although it must be remembered that the duty there is to identify the steps needed to avoid breach of a general health and safety duty, which is broadly equivalent to exists at common law. If the common law duty (following Hatton) does not require any special investigations, then a proportionate risk assessment need not either. Further, the idea that providing a counselling service will generally exclude liability provides an easy means for employers to fulfil their obligations, and it is also stipulated that the particular breach must be shown to have made a material contribution to the injury: general occupational stress is insufficient. This would seem to require a particular event that can be shown to have at least made a material contribution, rather than a series of "pin pricks" making the contribution cumulatively. If so, this may be in conflict with the House of Lords' decision in Waters v Metropolitan Police Commissioner (although that case only concerned a strike-out application and did not deal with the issues fully on their merits).

    Of the appeals in Hatton, only in Jones was the employee's psychiatric injury found on the facts to have been reasonably foreseeable by the employer. This was predominantly because members of senior management in her case had themselves identified the risk and the steps that needed to be taken, but failed to take them. The appeal against a finding of liability at first instance in Barber was allowed on the basis that the judge had found that the injury had been caused by working conditions, before considering the nature of the duty owed, whether there had been a breach of it, and whether the injury was reasonably foreseeable.

    A further appeal by Mr Barber to the House of Lords (Barber v Somerset County Council) was successful: their Lordships held that there was enough evidence for the trial judge to have found that Mr Barber's injury was reasonably foreseeable. He had informed his employer of work overload in February 1996, and was diagnosed with depression in May of that year and signed off work for three weeks. On his return, he again could not cope and informed his employer at three separate meetings. No steps were taken before the summer break, and after the holiday he found that nothing had changed, but this time kept quiet. In October, matters reached a head when he lost control, shaking a pupil, and left school having had a nervous breakdown. In upholding the trial judge's finding of liability, the majority approved in principle the guidelines set out in Hatton, but warned that they are not to be regarded as having anything like statutory force. The majority preferred the words of Mr Justice Swanwick in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd as a statement of general principle: "… the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his own workers in the light of what he knows or ought to know."

    Knowledge is key and, in Barber itself, the employer was said to have had sufficient knowledge of an impending breakdown at the point where Mr Barber had a series of three meetings to discuss his situation, having already been off work for three weeks with depression. The duty to take steps therefore arose at that stage. The duty was breached since no steps were taken to investigate his problems and discover what could be done to alleviate them, but Mr Barber had himself informed them of his problems in the past. If the employee says nothing at all, then the employer is not likely to be deemed to have been on notice of an impending breakdown unless there is some other objective factor prompting reasonable investigation. It also helped Mr Barber that he had already been signed off work with depression on a previous occasion.

    Indeed, all cases will depend on their own facts. In Bonser v UK Coal Mining Ltd (named as RJB Mining UK Ltd), which was decided prior to Barber, the Court of Appeal held that a single incident where the employee broke down in tears in response to a request to complete an additional project before going on holiday, was not enough to put the employer on notice of her subsequent mental break down. This, said the Court, was merely an indication that she might be vulnerable to occupational stress from overwork, but was not an indication of impending mental breakdown. In all other respects, the employee was a victim of her own conscience, quietly going about her work. No signs of her vulnerability to a mental breakdown were manifested, and no duty to take steps had therefore been triggered.

    What is sufficient to constitute a manifestation of such a vulnerability can only be tested on a case-by-case basis. It would seem from Barber, however, that a known diagnosis of depression, which could lead a "nervous breakdown" in unchanged circumstances, would suffice. A tearful outburst alone will not. Knowledge will not be imputed from information disclosed in confidence to the employer's own occupational health or counselling service, as emphasised by the more recent Court of Appeal decision in Hartman v South Essex Mental Health and Community Care NHS Trust, which held that nothing said in Barber was intended to alter the practical guidance given in Hatton. It was also found in Hartman that the employer was entitled to assume, from a failure to take up an offer of counselling, that the employee did not feel she needed it. Employees feeling under pressure, therefore, would be well advised to take up any such offer, and not to assume that their employer is aware of their problems afterwards. Problems will need to be disclosed to a superior if the employer is to be fixed with knowledge, and even such disclosures may well be insufficient without any medical diagnosis or absence.

    Even at the point where an injury is actually suffered, therefore, a claim in negligence is likely to be very difficult to advance, especially if a counselling service is offered. A claim in contract for breach of the implied term to take all reasonable care for the health and safety of employees and/or a breach of mutual trust and confidence will not carry any advantages, since the duties are the same and it is largely irrelevant whether the claim is brought in contract or in tort. In fact, a claim in contract is likely to be less advantageous for employees, since the heads of damage that can be recovered are more restrictive: contract claims will not usually enable recovery for loss of future earnings, or so-called Smith v Manchester damages to reflect loss of the prospect of finding an equally well-paid job.

    UNFAIR DISMISSAL

    There is a further restriction on the ability of an employee to recover for their injury at common law. Following the decision of the House of Lords in Johnson v Unisys, the injury must be suffered prior to any act of dismissal. Otherwise, the claim can only be brought as an action for unfair dismissal in an employment tribunal, which is much less attractive due to the statutory cap on levels of compensation and the inability to recover any sum for injury to feelings (after the House of Lords' decision in Dunnachie v Kingston-upon-Hull City Council).

    A claim will still disclose a cause of action if it is in respect of an injury sustained as a result of events prior to and severable from the act of dismissal itself, as the House of Lords confirmed in Eastwood and another v Magnox plc and McCabe v Cornwall County Council and others. However, this creates difficulties on a case-by-case basis of establishing on the facts that the events alleged to have caused the injury did in fact occur prior to any dismissal. This situation creates an incentive for an employer to dismiss an employee who decides to disclose any serious difficulties in coping, so as to avoid a potential personal injury claim by making it more difficult for the employee to show that any existing injury was caused prior to dismissal (any injury being caused by the dismissal itself being irrelevant), and simultaneously creates a disincentive for the employee to disclose any difficulties.

    An early dismissal in such circumstances could potentially be the subject of a successful unfair dismissal claim. Where the workplace does not have any health and safety representative or health and safety committee, the dismissal would be automatically unfair under s.100(c) of the Employment Rights Act 1996, if the disclosure of difficulties is seen as bringing to the employer's attention, by reasonable means, circumstances connected with his work that he reasonably believed to be harmful or potentially harmful to health or safety.

    If the employer has taken the precaution of having a health and safety committee or representatives, the employer might successfully argue that the dismissal was on grounds of capability, or "some other substantial reason" if the difficulties have been caused by a necessary reorganisation of work. provided a fair procedure is followed - including the minimum procedural requirements introduced by the Employment Act 2002 (Dispute Resolution) Regulations - and provided that the employer acts reasonably in all the circumstances, the dismissal could be fair. Indeed, dismissal at an early stage would certainly seem to be an attractive and cost-effective option taking into account the expense of measures that might be introduced to help the employee overcome their difficulties; the fact that in cases where no injury has yet been suffered, the employee will probably not have been permanently incapacitated (making substantial mitigation likely); the fact that if an injury is sustained as a result of dismissal, no extensive common law damages will be available; and the chance that any unfair dismissal claim would fail.

    In turn, this is likely to make employees reluctant to speak up when they are having serious difficulties, meaning that any subsequent injury will not be reasonably foreseeable and a psychiatric injury claim would, consequently, be likely to fail. Therefore, legislative intervention to overturn the effects of Johnson could have a significant impact on making the prospect of personal injury claims more of an incentive for employers to take employees' difficulties seriously, and to take preventive action. Such intervention is certainly not imminent

    Constructive dismissal

    Alternatively, the employee may not wish to wait to be dismissed. Following Eastwood and McCabe, if they are injured and resign as a result, in accordance with the elective theory of contract termination a distinction must be drawn between losses flowing from the original repudiatory breach (which will be outside the Johnson "exclusion zone") and those flowing from the employee's acceptance of that breach as terminating the relationship (which will be within it). According to the House of Lords, therefore, general damages will be recoverable in respect of the injury caused by the repudiatory breach, but financial losses flowing from the decision to resign generally will not be. Whether their Lordships were right to conflate termination by the employee at common law with the statutory concept of constructive dismissal - especially when Johnson itself concerned termination by the employer or a "direct" dismissal - is debatable. Nonetheless, even if loss of earnings is not recoverable at common law in an individual case, a separate statutory claim would be possible for the purposes of these losses up to the statutory cap. Following Dunnachie, no injury to feelings awards are possible in statutory unfair dismissal claims, and there would therefore be no double recovery of the general damages awarded at common law.

    Of course, where no injury has yet been suffered, no common law claim will be possible at all. It may still be possible to resign and bring a constructive dismissal claim, however. In order to bring such a claim, the employee will need to show that the employer has committed a repudiatory breach of contract entitling the employee to resign. In the context of an employee who considers their working conditions to be excessively pressurised, but who has not yet suffered any recognised injury, there will be an issue as to whether the employer can be said to have breached the implied term of mutual trust and confidence.

    It is not likely to be sufficient for the employee to show that their employer has placed them under a lot of pressure, especially if the employee is in a managerial role. What may be required is a disclosure by the employee of their difficulties and/or a request for assistance, which is flatly refused without proper investigation.

    In Austin v British Aircraft Corporation Ltd (decided before the advent of the mutual trust and confidence term), the employee complained that her eye protection was inadequate. Her complaint was not investigated, and this failure was a breach of the employer's obligation to act reasonably in dealing with safety matters drawn to its attention, entitling the employee to resign. Whether the eye protection was inadequate was irrelevant: what mattered was the failure to investigate.

    If an employee discloses difficulties in coping and asks for steps to be taken to alleviate the burden, provided this is accepted as being a "safety matter", in light of the potential for psychiatric injury in future, failure to investigate may well be a repudiatory breach entitling the employee to resign, irrespective of whether working conditions are actually causing a risk of psychiatric breakdown. This will be so unless the complaint is not genuine or is frivolous. The likelihood of a repudiatory breach being found where no investigation is carried out, would be increased in light of the employer's statutory obligation duty to carry out a suitable and sufficient risk assessment. Indeed, it may now be that a failure to carry out a risk assessment could amount to a breach of mutual trust and confidence on its own, without the need for matters to be brought to the employer's attention.

    However, it is important to remember that while the existence of a repudiatory breach that entitles the employee to resign may be enough to show that there has been a deemed "dismissal" for the purposes of bringing a constructive unfair dismissal claim, it is not enough on its own for the claim to be successful: the "dismissal" must also be shown to have been unfair. The employer could establish the potentially fair reasons of capability or "some other substantial reason" in the same way as in a direct dismissal case. It might be thought, in a constructive dismissal case of this type though, that an employer is much more likely to be found not to have acted reasonably in all the circumstances than in a direct dismissal case, if it has already been found for the purposes of establishing a repudiatory breach, that the employer did not act reasonably in failing to investigate.

    A recent decision of the EAT, however, suggests that where there is no evidence of a medical problem, no further investigation will be required. In Hedgecock v Commissioners for HM Revenue & Customs. A reorganisation by the employer resulted in the employee, a typist, being required to carry out some reception work on an occasional basis. Due to a previous event in the employee's life, she felt unable to deal with members of the public. She was signed off work with stress, but when she was eventually certified fit for work, she resigned and claimed constructive dismissal because the employer maintained that she was required to carry out some reception work. There was held not to have been a breach of mutual trust and confidence, because there was no medical evidence to support her claim that she was not capable of reception work, and if there had been, her employer would not have forced her to undertake it, and would have offered training in dealing with the public to help her overcome her anxiety.

    Long-term sickness absence

    Most unfair dismissal cases arising as a result of stressful working conditions are likely to concern dismissal following a long period of absence on medical grounds. In such cases, the employer might first seek to establish that there has in fact been no dismissal at all, but rather that the contract has been frustrated. In this way, any statutory claim for unfair dismissal will be wiped out altogether, since termination by frustration is automatic, and not dependant on an act by either party.

    In Williams v Watsons Luxury Coaches Ltd, the EAT made it clear that cases of frustration of contracts of employment will be "rare occurrences", but in Notcutt v Universal Equipment Co (London) Ltd, the Court of Appeal took the view that in circumstances where an employee had a heart attack and was advised by his doctor that he would probably never work again, the contract was frustrated. A similar medical view, following a nervous breakdown or psychiatric injury ought, therefore, to lead to the same conclusion. In the absence of such a definite prognosis, the Court will take into account how long the employee has been ill for, how long the illness is likely to last, and it's effect on the ability of the employee to fulfil his or her contractual obligations, as well as whether "in all the circumstances a reasonable employer could be expected to wait any longer" (Egg Stores (Stamford Hill) Ltd v Leibovici).

    Where the outcome of the illness is uncertain, therefore (for example, where the employee has not yet suffered a nervous breakdown, but has been diagnosed with a condition - perhaps depression - rendering them temporarily unfit for work), frustration is less likely to be found. The employer will be found to have effected a dismissal instead if viewing the contract as at an end. Where the employee is unable or unwilling to attend work, the employer should not have much difficulty in establishing a potentially fair reason for dismissal in capability, "some other substantial reason" or even misconduct, and the success of any unfair dismissal claim will hinge on whether the employer can be said to have acted reasonably in all the circumstances under s.98(4) of the Employment Rights Act 1996. This exercise resembles the wide-ranging Leibovici inquiry very closely, so any finding that the contract was not frustrated because the reasonable employer could have been expected to wait longer is likely to lead to a finding that the employer did not act reasonably in all the circumstances in dismissing the employee.

    Whether or not the employer acted reasonably in all the circumstances in relation to the employee's absence will therefore be the central question in determining the outcome of any claim, and crucial to answering it will be the medical diagnosis. The employer may request, with the employee's consent (which is required by the Access to Medical Reports Act 1988), a report from the employee's GP. If not satisfied that the report discloses information that justifies absence from work, the employer may decide to seek a report from its own doctor. Given that "stress" is not a condition recognised in the ICD10 or DSM IV, even where "stress" is diagnosed the employer might legitimately look for more specific evidence of a recognised condition, or evidence of symptoms preventing attendance at work. The absence of any such evidence, a refusal by the employee to undergo any examination for this purpose, or a refusal of consent to a report provided by the employee's own GP, would all point towards the reasonableness of dismissal. Crucial to a finding of reasonableness will be proper consultation with the employee to give them an opportunity to state their case. Only in the rarest cases will a failure to consult be justified (East Lindsey District Council v Daubney).

    Once fully apprised of the employee's state of health, the employer should consider the needs of the business, the employee's past sickness record, and the possibility of offering alternative employment that the employee might find more suitable (Spencer v Paragon Wallpapers Ltd). Where the only suitable alternative is on a lower rate of pay, the employer will not be acting unreasonably in making such an offer (McCaull v British Gas Services Ltd).

    It was thought to be the case that in unfair dismissal claims (unlike negligence claims) the cause of the employee's illness is irrelevant (London Fire and Civil Defence Authority v Betty), but this position has now been thrown into doubt by two other EAT decisions: Edwards v Governors of Hanson School and Frewin v Consignia plc. In both, the EAT said, obiter, that Betty was only authority for the proposition that evidence of the incapacity being caused by the employer would not necessarily render the dismissal unfair. That the employer was wholly or partly responsible for the incapacity, or for exacerbating it, would be a relevant factor in determining the fairness of the dismissal.

    Provided the employer also complies with the minimum statutory procedural requirements set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004, and any more favourable contractual provisions that may apply, the dismissal will usually be fair.

    DISABILITY DISCRIMINATION

    Acting reasonably in deciding to dismiss will also have to involve the employer in a consideration of its obligations under the DDA. A dismissal for a reason relating to the employee's disability, which cannot be justified (s.3A(1)), will be an act of unlawful discrimination if a person to whom that reason does not or would not apply would not have been dismissed. Whether a reason for treatment "relates to" disability is relatively easy to establish: for example, failure to attend a disciplinary hearing, caused by disability, is disability-related misconduct, meaning that dismissal is disability-related (Claydon House v Hamilton-Bradbury). The success of the claim will often depend on whether justification can be made out. This involves a largely factual inquiry to determine whether the reason for the treatment is both "material to the particular circumstances of the case and substantial". In Jones v Post Office, the Court of Appeal held that the treatment will not be justified if it is outside the band of reasonable responses that an employer might make, which mirrors the test of reasonableness for the purposes of unfair dismissal. The reason for the treatment might be outside that band if there has not been a proper risk assessment, for example. (Note the different approach with other grounds of discrimination: Hardys & Hansons plc v Lax on p.17 of this issue.)

    Reasonableness in all the circumstances is again key to a claim that an employer has failed to make reasonable adjustments. Under s.4A of the DDA, the employer has a duty to make reasonable adjustments for employees who fall within the definition of "disability", where any provision, criterion or practice made by or on behalf of the employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. The duty is to take such steps as it is reasonable to take in all the circumstances, to prevent the provision, criterion or practice from having that effect. Section 18B(2) sets out a (non-exhaustive) list of steps that might need to be taken, including:

  • allocating some of the disabled person's duties to another person;

  • transferring him to fill an existing vacancy;

  • altering his work hours;

  • allowing him to be absent during working or training hours for rehabilitation, assessment or treatment; and

  • providing supervision or other support.

    In Archibald v Fife Council, the House of Lords confirmed that whether an adjustment is reasonable will depend on all the circumstances in the particular case. According to s.18B(1), this will involve consideration of a variety of factors, including the extent to which it is practicable for the employer to take the step, the costs involved and the extent of the employer's resources.

    The Disability Rights Commission's Code of Practice on Employment and Occupation 2004, which must be taken into account in tribunal proceedings, gives further relevant factors, including the effect the adjustment will have on other employees and the extent to which the disabled employee is willing to cooperate (para. 5.42). It is important, therefore, for an employer contemplating dismissal, to have conducted a proper investigation into the reasonableness of any potential adjustment, to be able to substantiate a decision not to make any.

    The reasonableness of any adjustment will depend on all the circumstances of the case. The duty will extend to treating disabled employees more favourably in some circumstances (s.18D(1)), and in Archibald itself, the duty was found to extend to offering the employee alternative employment at a higher level. Where an employee is "disabled" as a result of a reaction to stressful working conditions, however, it might well be the case that such a step would not be required, since it would generally appear to be reasonable to conclude that an increased level of responsibility would only exacerbate the problem.

    In Collins v Home Office, the Court of Appeal held that a refusal to allow a phased return to work, involving initial part-time working, was not unreasonable in circumstances where the employer had already extended the probationary period twice, and where no return date could be given. A failure to assess what steps would be reasonable will itself be a failure to make a reasonable adjustment, since carrying out the investigation is a precondition of being able to fulfil the duty (Cambridge v Mid Staffordshire General Hospitals NHS Trust).

    Such reasonable adjustments will be required not only in terms of the decision as to whether or not to dismiss, but also in terms of how that decision is reached. For example, an employee who is unable to attend a disciplinary hearing because of their disability can expect adjustments to be made in the disciplinary process to enable them to attend (Claydon House Ltd v Hamilton-Bradbury).

    A finding that the employer acted reasonably in examining the reasonableness of any potential adjustments, will lead to a finding that it also acted reasonably in all the circumstances for the purposes of any unfair dismissal claim (Home Office v Collins). Therefore, where there is a risk that the employee in question might be disabled, the employer ought to use the DDA inquiry as a benchmark. Knowledge as to whether or not the employee is disabled is an essential precondition of the duty (s.4A(3)). The duty will not arise if the employer does not, or could not reasonably be expected to, know that the employee is disabled and potentially suffering from a substantial disadvantage. Constructive knowledge may be fixed objectively therefore

    Definition of disability

    No claim will be possible if the employee is not "disabled". For an employee to be "disabled", he or she will need to show that they have a "physical or mental impairment which has a substantial and adverse effect on his ability to carry out normal day-to-day activities" (s.3). Currently, a mental impairment includes one that results from or is a mental illness, provided it is "clinically well-recognised", but this requirement will be removed in December 2005, following the entry into force of the Disability Discrimination Act 2005. In Morgan v Staffordshire University, the EAT held that for a mental impairment to be established, there would need to be:

  • proof of a mental illness specifically mentioned in the ICD10;

  • proof of a mental illness specifically mentioned in another similar publication;

  • proof of a mental illness recognised by a respected body of medical opinion; or

  • proof of a state neither is, nor results from, a mental illness identifiable in these ways, although the EAT doubted that this latter category would ever be successfully invoked without substantial and specific medical evidence.

    The mental illness will no longer have to be one that is found in the ICD10 or a similar publication, or one that is recognised by a responsible body of medical opinion, so the focus in cases of alleged stress-related disability will shift to the fourth category identified in Morgan. This category already exists, however (since the definition of mental impairment currently includes the clinically well-recognised mental illnesses and their effects). Therefore, it is arguable that the removal of the "clinically well-recognised" requirement will be of minimal impact, or even none at all. The substantial and specific medical evidence currently required in cases that do not involve a clinically well recognised illness will still be required, and it will obviously be helpful for the claimant's case if he or she can show that they have a clinically well-recognised illness. Claimants who can only point to doctors' notes identifying "stress, anxiety and depression", as in Morgan, could well still find themselves outside the definition of disability.

    This will be so where the impairment, provided there is one, cannot be shown to have a substantial and long-term adverse effect on normal day-to-day activities. "Long term" means it must have lasted, or be likely to last, at least 12 months (Schedule 1, para. 2(1)). Under para. 4(1) of Schedule 1 to the DDA, such effects may include effects on continence and memory or the ability to concentrate, but trivial effects will not be sufficient. Obtaining detailed medical evidence is likely to be extremely important for the employer before taking any decisions therefore. This is especially true because, if there is uncontested medical evidence on behalf of the employee to the effect that there is a mental impairment causing the requisite effect on day-to-day activities, the tribunal will usually have little choice but to accept it (Kapadia v London Borough of Lambeth). Nonetheless, it is likely that, in spite of the impending legislative changes, employees will continue to have to show that they are suffering from a clinically well-recognised illness before they will be able to claim. It is possible that a physical impairment may result from prolonged exposure to pressurised circumstances - such as a bowel condition - but the effect of the impairment will still have to be substantial and long term. Essentially therefore, a disability discrimination claim is unlikely to be successful unless a recognised injury has already been suffered. In cases where it has, careful consideration will have to be given to whether a common law claim would be a more attractive option (despite its own difficulties), because a claim for a dismissal for a reason related to disability may often be justified, and a claim for a failure to make reasonable adjustments could well fail on the grounds that the adjustments requested are not reasonable in all the circumstances.

    Harassment

    A common source of workplace pressure is the conduct of fellow employees, in the form of harassment. Under the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, s.4(3) of the DDA and the draft Employment Equality (Sex Discrimination) Regulations 2005 (expected to come into force in October 2005 by inserting s.4A into the Sex Discrimination Act 1975), it is possible to bring claims of harassment where, for a reason relating to the particular characteristic in question, a person subjects the claimant to "unwanted conduct which has the purpose or effect of (a) violating the person's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment …".

    This is subject to the defence that conduct will be regarded as having the required effect only if it is reasonable in all the circumstances to do so, but having particular regard to the perception of the victim. This offers the opportunity for an employee to attempt to tackle the problem at source, and does not require any recognised injury or disability to be shown as a precondition to the claim: there is no requirement to show actual detriment. Indeed, the victim's subjective feelings will have a significant effect on the outcome of the claim.

    Where the factual circumstances support such a claim, this course of action therefore presents employees with considerable advantages over a common law claim in negligence (either in contract or in tort), especially since a potential award of injury to feelings will not depend on the common law tests of foreseeability and causation being satisfied: as long as a direct causal link can be shown (Essa v Laing). The level of any injury to feelings award will obviously reflect the level of distress suffered by the employee, but at least this mechanism provides a means of seeking redress prior to any serious injury being suffered.

    Alternatively, a claim need not be based on any particular ground of discrimination if the Protection from Harassment Act 1997 is used. Section 1 of the Act requires a course of conduct to be shown that the perpetrator knew or ought to have known, amounted to harassment. This is a rather unhelpful circular definition of "harassment", which is again subject to the defence that the conduct complained of was "reasonable in the particular circumstances" (s.1(3)(c)). Nonetheless, this represents an attractive alternative to a negligence claim, for the same reasons as with the harassment claims based on particular protected characteristics, outlined above. Injury or detriment is not required, and foreseeability of harm need not be proved. In fact, a victim of harassment will be able to claim a civil remedy under s.3(2) of the Act, and damages for, "among other things, anxiety and any financial loss arising from the harassment" (our emphasis). This marks something of a radical departure from the traditional common law view that anxiety is a natural fact of life that must simply be endured. The 1997 Act sets a much lower threshold for employees to overcome.

    Further, the Court of Appeal held in Majrowski v Guy's and St. Thomas' NHS Trust that vicarious liability is possible under the Act, meaning that the perpetrator will not have to be sued individually. This is despite the fact, as pointed out by Lord Justice Scott Baker in Majrowski, that employer's liability insurance will not cover employers in respect of claims of "anxiety". Following Lister v Hesley Hall, and Dubai Aluminium v Salaam and others, the employer will be liable for the acts of an employee, where the risk of wrongdoing is "reasonably incidental" to the employee's employment. This will be relatively easy to establish in most cases.

    It would seem that the only substantial restriction on the use of this action is that the employee will have to establish that there has actually been harassment. This requires there to have been a course of conduct that involved at least two incidents (Banks v Ablex Ltd). This will clearly make a claim under the 1997 Act unsuitable for employees who have suffered serious injury after only one incident. Moreover, employees experiencing anxiety connected with pressures coming from another source, such as overwork, will not generally be able to make use of the Act. Given the circular definition of harassment provided in s.1, it may be possible to show that a manager's persistent harrying of an employee in respect of a piece of work, for example, could constitute harassment. The flood of potential claims that would result however, perhaps makes it unlikely that any court would uphold such a proposition, but definitive elucidation is required before it can be ruled out absolutely.

    Conclusion

    Over-pressurised working conditions are not good, for people's health or for productivity. Responsible employers will take the issue seriously and seek to prevent such conditions occurring, thereby minimising the risk of debilitating reactions in their employees. The HSE's "Management Standards for tackling work-related stress" (2004), provides a useful guide to help employers achieve this, primarily by improving the effectiveness of risk assessments.

    However, the law - which has been the focus here - does not provide employees with much cause for optimism about their prospects of being able to enforce pre-emptive action, or to obtain a remedy when their employer has failed them. The prospects of pre-emptive prosecution by the HSE are slim and, although there is at least a theoretical possibility of obtaining injunctions to restrain breaches of statutory duty, now that reg. 22 of the MHSW Regulations has been amended to allow for civil claims, or indeed to restrain harassment, this possibility has yet to be tested definitively. The prospect of compensation claims may also now provide some increased incentive for employers to take pre-emptive action, given the different considerations involved in breach of statutory duty claims in comparison with negligence claims.

    To obtain a remedy, therefore, employees will generally have to wait until they have suffered a recognised injury, or until they have been dismissed. Claims may be brought for psychiatric injury, disability discrimination, constructive/unfair dismissal or harassment, but all have their problems. Foreseeability of injury is diffcult to establish at common law, and employers are in essence unlikely to be liable for unfair dismissal or disability discrimination if they have acted reasonably in conducting an investigation and consultation exercise, and can provide an objective justification for their actions.

    Perhaps claims under the Protection from Harassment Act 1997 now offer the most exciting prospects of success for those who have not yet suffered a serious injury, but this action has the obvious limitation that it does not help those who are suffering from over-pressurised working conditions not related to harassment. It can be seen, therefore, that there is no any particular cause of action available which might be called a "stress claim", and this label may even be misleading in terms of the lay person's perception of the circumstances that might give rise to a successful claim.

    Whether the current situation is satisfactory (and if not, what alternative should be pursued) is a matter for debate elsewhere. It might be argued that a distinct form of stress claim ought to be created, to create more of an incentive for employers to take preventative action, or that more effective means of taking action to prevent injury in the first place should be developed. In the meantime, helping staff to enjoy their work and to feel fulfilled, and helping them to overcome any skills deficit or lack of resources that may be causing difficulties in coping, will clearly be good business practice, and could help to prevent claims being brought, even if those claims would often turn out to be unsuccessful.

    This article is written by Douglas Leach.

    REFERENCES

    1Health and Safety Executive, Tackling stress: the management standards approach (PDF format, 56K).

    2www.nhsdirect.nhs.uk.

    3Health and Safety Executive, Tackling stress: the management standards approach (PDF format, 56K).


    legislation

    Management of Health & Safety at Work Regulations 1999

    …

    Schedule 1

    General principles of prevention

    …

    (a) avoiding risks;

    (b) evaluating the risks which cannot be avoided;

    (c) combating the risks at source;

    (d) adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods with a view, in particular, to alleviating monotonous work and work at a pre-determined work rate and to reducing their effect on health;

    (e) adapting to technical progress;

    (f) replacing the dangerous by the non-dangerous, or the less dangerous;

    (g) developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;

    (h) giving collective protective measures priority over individual protective measures; and

    (i) giving appropriate instructions to employees.

    CASE LIST

    Archibald v Fife Council [2004] IRLR 651
    Banks v Ablex Ltd [2005] EWCA (Civ) 173
    Barber v Somerset County Council [2004] IRLR 475
    Bonser v UK Coal Mining Ltd (named as RJB Mining UK Ltd) [2004] IRLR 164
    British Aircraft Corporation Ltd v Austin [1978] IRLR 332
    British Gas Services Ltd v McCaull [2001] 60
    Claydon House Ltd v Hamilton-Bradbury 22.10.04, EAT/0315/04/MAA, (2005) 761 IRLB 17
    Dubai Aluminium v Salaam & ors [2003] IRLR 608
    Dunnachie v Kingston-upon-Hull City Council [2004] IRLR 727
    East Lindsey District Council v Daubney [1977] IRLR 181
    Eastwood v Magnox plc; McCabe v Cornwall County Council [2004] IRLR 733
    Edwards v Governors of Hanson School [2001] IRLR 733
    Egg Stores (Stamford Hill) Ltd v Leibovici [1976] IRLR 376
    Essa v Laing [2004] IRLR 313
    Frewin v Consignia plc 09.06.03, EAT/98/02, (2003) 726 IRLB 13
    Hardys & Hansons plc v Lax [2005] EWCA (Civ) 846
    Hartman v South Essex Mental Health and Community Care NHS Trust and other appeals [2005] IRLR 293
    Hedgecock v Commissioners for HM Revenue and Customs 18.07.05, EAT/0083/05/TM Home Office v Collins [2005] EWCA (Civ) 598
    Johnson v Unisys [2001] IRLR 279
    Jones v Post Office [2001] IRLR 384
    Kapadia v London Borough of Lambeth [2000] IRLR 699
    Lister v Hesley Hall Ltd [2001] IRLR 472
    London Fire and Civil Defence Authority v Betty [1994] IRLR 384
    Majrowski v Guy's & St Thomas' NHS Trust [2005] IRLR 340
    McLouglin v O'Brian [1983} AC 410
    Morgan v Staffordshire University [2002] IRLR 190
    Notcutt v Universal Equipment Co (London) Ltd [1986] IRLR 218
    Smith v Manchester CC (1974) KIR 1
    Spencer v Paragon Wallpapers Ltd [1976] IRLR 373
    Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776
    Sutherland v Hatton [2002] IRLR 263
    Walker v Northumberland County Council [1995] IRLR 35
    Waters v Metropolitan Police Commissioner [2000] IRLR 720
    Williams v Watsons Luxury Coaches [1990] IRLR 164