STRESS IN THE WORKPLACELEGAL CONSIDERATIONS
“There
cannot be a stressful crisis
next week! My schedule is already
full”
Henry Kissinger
Common Law Negligence
The liability of employers for employees
stress induced psychiatric illness.
Employers are under a common law duty to
take reasonable care for the Health & Safety
of their employees in the workplace.
Scope of Employers Duty of Care
•  Was the employee’s injury reasonably
foreseeable by the employer?
•  Employers can be liable for employees
bullying and harassment of other
employees.
The scope and extent of an employer’s
duty of care – the cases
Johnstone v Bloomsbury Health Authority
1991
–
reasonably foreseeable that employer
requiring an employee to work
excessive hours would damage the
employee’s health.
Petch v Commissioners of Customs & Excise
1993
–
employers duty of care extended to
ensure duties allocated did not bring
about a repetition of mental breakdown
Walker v Northumberland 1995
–
the standard expected of an employer
must be measured against the yard
stick of reasonable conduct on the part
of the employer.
Lancaster v Birmingham City Council 1999
-
Employer at risk where employee
unable to cope with a job for which
inadequately trained
Sutherland v Hatton 2002
-
Guidelines on the employer’s common
law obligations in relation to work place
stress related illness
Barber v Sommerset County Council 2004
(House of Lords)
-  Considered the status of the Sutherland v Hatton
guidelines
-  Employers must take action to try and avoid any
escalation of an employee’s illness and
consequent liability for breach of their duty of
care
Post Hatton cases
–
the boundaries of foreseeability of
workload stress
Hartman v South Essex 2005
–
another kind of work place stress
Specific trauma stress, including
bullying at work.
Stress related physical injury
Harding v The Pub Estate Company Limited
2005
-
No difference to the issue of liability
that the injury suffered was physical (a
heart attack) rather than psychiatric
illness
Employment Rights and Stress
•  Unfair Dismissal
•  Breach of Contract
•  Constructive Dismissal
•  Protection from Harassment Act 1997
•  Discrimination legislation
•  Working Time Regulations 1998
Charlie Sheen in Rooftop Protest
Unfair Dismissal- Capability
•  Fair procedure
•  Employer’s conduct causes long term absence?
–  McADIE v. ROYAL BANK OF SCOTLAND
[2007] EWCA Civ 806
•  Disability Discrimination
•  Contractual right to Permanent Health Insurance?
Breach of Contract
The importance of implied terms:
•  Employer’s duty to provide a safe place of work
– NOTTINGHAMSHIRE COUNTY COUNCIL v.
PEREZ (EAT951/95)
•  Employer’s duty to provide support
– WIGAN BOROUGH COUNCIL v. DAVIES
(1979 ICR 411)
•  Employer’s duty to maintain a relationship of trust
and confidence
Constructive Dismissal
An employee must establish:•  There has been a fundamental breach of
contract on the employer’s part
•  The employer’s breach of contract has directly
led to the employee resigning
•  The employee has not delayed in resigning their
position
The Implied Term of Trust and
Confidence and Stress
•
•
•
•
•
Increase in workload
Refusal/ failure to provide alternative work
Forced demotion
Bad/ over-zealous management
Disproportionate response to disciplinary
matter
•  Bullying & Harassment
Protection from Harassment Act
1997
•  Must be a “course of conduct”
•  Conduct need not be on grounds of a protected
characteristic
•  No need to establish a recognisable psychiatric
condition
•  No reasonable steps defence available
Bullying
Offensive,
intimidating,
malicious
or
insulting behaviour, or an abuse or misuse
of power through means intended to
undermine, humiliate, denigrate or injure
the recipient.
Harassment
A person subjects another person to harassment, where,
for a reason related to a protected characteristic, they
engage in unwanted conduct which has the purpose or
effect of:
a) violating that other person’s dignity;
or
b)
creating an intimidating, hostile,
degrading, humiliating or offensive
environment for that person.
Protected Characteristics
• Sex
• Race
• Disability
• Sexual Orientation
• Religion or Belief
• Age
• Gender Reassignment
• Marriage and civil
partnership
• Pregnancy and
maternity
Discriminatory Harassment
•  Requires to be on the ground of a protected
characteristic
•  Liability can arise as a result of a one-off incident
•  Employer may
harassment
incur
liability
•  “Reasonable steps” defence
for
“3rd
party”
Working Time Regulations 1996
•  48 hour limit on the working week
– Employees may opt-out of the
restriction
•  Daily rest breaks
•  Weekly rest periods
•  Annual leave entitlement
•  Special protection for night workers
“It is impossible to enjoy idling thoroughly
unless one has plenty of work to do.”
- Jerome K. Jerome
Fellow”
“The Idle Thoughts of an Idle