Thursday 17 March 2011
Oliver McCann
Employment Partner
Taylors Solicitors
Stress at Work –
the Legal Slant!
1. Statistics
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13.5 million
31 days
£3.7 billion (society)
38% - work cause of stress (51% money)
35% employers say stress cause for absence
(2010)
 Bullying and harassment
2. What is Stress?
 ACAS/HSE: “An adverse reaction to excessive
pressure or demands”
 Oxford dictionary: “a state of mental or emotional
strain or tension resulting from adverse or
demanding circumstances”
 Stress is not in fact an illness, but can trigger
other illnesses, eg. heart disease, anxiety,
depression, etc
3. Effects on the Business
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Poor productivity/performance
Increased absence levels
Increased turnover
Temporary cover/overtime for others – increased
costs
 Demotivation for others
 Litigation
4. Stress is a Legal Health &
Safety Issue
 HSWA 1974
 Management of Health and Safety at Work
Regulations 1999
 Risk assessments for health hazards including
stress
 Take action to control identified risks
 Management standards – key factors considered
essential to reduce the causes of stress [cont…]
5. Stress is a Legal Health &
Safety Issue [cont …]
 HSE prosecutions
 Implied contractual terms to provide safe system of
work/workplace (Johnstone v. Bloomsbury Health
Authority 1991)
 Implied duty to provide reasonable support (Wigan
BC v. Davies 1979)
 Common law duty of care not to cause psychiatric
harm (Walker v. Northumberland County Council)
6. Stressors – Management
Standards
 Demands – workload, work pattern and work environment
 Control – how much influence a person has on the way they work
 Support – encouragement, research and guidance/development
provided by organisation and line management
 Roles – clearly defined for both individual and organisation
 Relationships – managing within the workplace, reducing conflict,
promoting positive working
 Changes – management and communication
“A benchmark for claims?”
7. What are the Potential
Legal Claims?
 Stress at work – PI claim – negligence and breach of
statutory duty
 Breach of contract
 Constructive dismissal
 Unfair dismissal, if dismissed on grounds of capability
 Discrimination claims (harassment) – Equality Act 2010
 Protection from Harassment Act 1997
 Disability discrimination (keeping at work)
8. Discrimination
 Harassment – “unwanted conduct related to a protected
characteristic” (s26 EA 2010)
 Violates dignity, creates an intimidating, hostile, degrading,
humiliating or offensive environment
 Is it reasonable to conclude that conduct has had the effect
of creating an environment as above? Perception of victim
is relevant! (s26(4))
 Vicariously liable but statutory defence (s109 EA 2010)
 Unlimited compensation – injury to feelings and PI where
psychiatric injury
9. Constructive Unfair
Dismissal
 Burden on employee to prove a fundamental
breach
 Must resign in response
 Implied terms – safe system of work and
reasonable support, trust and confidence
 Compensation limit £68,400 – basic award £12,000
 12 months continuous service unless exceptions to
rule
10. PI Claims – Employers
Liability
 Duty arises to take steps to prevent stress where
signs (foreseeable) that an employee may suffer
psychiatric illness from stressors at work are plain
enough that any reasonable employer would
realise it should act (Barber v. Somerset CC 2004
HL)
 16 guidelines (Sutherland v. Hatton 2002 CA)
[cont …]
11. PI Claims – Employers
Liability [cont …]
 Foreseeable – absence levels, sick notes,
workload, nature of job, extent of work, level of
support (under-staffing)
 Recognised medical condition
 No onus on employee to complain – duty on
employer!
12. Steps to Take to
Discharge Liability
 Counselling service (Guideline 11 Hatton) but
Daw v. Intel Corporation UK 2007 CA
 Redistribution of work
 Sabbatical
 Transfer to other department
 Reduced working hours
 Extra support
13. Breach of Contract
 Manner of dismissal does not sound in damages –
Johnson v. Unisys Ltd 2003
 However, where guilty of an antecedent breach of
contract (including breach of trust and confidence
and other implied terms) before dismissal, then
claim can be made for psychiatric damage suffered
(Gogay v. Hertfordshire CC 2000)
14. Protection from
Harassment
 1997 Act – s1: “A person must not pursue a course of
conduct which amounts to (and they ought to know
amounts to) harassment of another”
 Cause of conduct – at least two occasions
 Majrowski v. Guys & St Thomas NHS Trust 2006 HL –
vicarious liability for actions of its employees where close
connection between harasser’s conduct and nature of his
duties
 Green v. DB Group Services - £852,000 liability under Act
[cont …]
15. Protection from
Harassment [cont …]
 No definition but included under Act – wide
interpretation (unjustified bills and threatening
letters – Ferguson v. British Gas 2009)
 Veakins v. Kier Islington Ltd 2009 CA – singling out
employee without reason and making her life
difficult until she had a breakdown
 Only bring a civil claim if conduct would result in
criminal liability under the Act (Conn v. Sunderland
CC 2007)
16. Benefits of Tackling
Stress
 Reduced exposure to claims
 Quality of working life
 Improved image/reputation – future recruits,
customers, tenders
 Easier management of future change
 Better employee relations and commitment
 Reduced staff turnover
 Reduced absence
17. How can Stress be
Managed in the Workplace?
 Effective inductions, job descriptions (purpose, key tasks,
scope)
 Effective communication channels and employee engagement
– appraisals/return to work interviews/work plans/team
meetings/committees/works councils/consultation
 Job design – keep under review/manage changes
 Support – identify training needs, supervision – ongoing
dialogue
 Recruit properly – avoid mismatches, competency!
 Stress surveys – annual? [cont …]
18. How can Stress be
Managed in the Workplace
[cont ...]
 Flexible working – see benefits
 Training line managers to identify stressors and signs of stress
 Counselling services (Employee Assist Programmes) and health
checks
 Clear policies and procedures and implementation –
grievances, discipline, unacceptable behaviour, stress policy
(consultation with staff/TUs)
 Creating a healthy and friendly working environment
 Monitor rest breaks/holidays
19. Flexible Working –
Work/Life Balance!
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Maximises available labour
Increases productivity
Reduces absenteeism/stress
Increases loyalty and commitment
Increases flexibility to meet change
Improves access to those from under-represented
groups with skills
20. Managing Absence
Caused by Stress
 Absence due to stress/anxiety/depression –
needs sensitive care and handling
 Maintain regular contact throughout
 Where caused by work – go the extra mile (Royal
Bank v. McAdie 2008)
 Sick pay? (O’Hanlon v. HMRC 2007)
 Timing of long term absence procedure [cont …]
21. Managing Absence
Caused by Stress [cont …]
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Timing of health assessments
Quality of health advice – OH or GP?
Consultation with ill employee
Return to work interviews – critical
Alternative employment/phased returns –
adjustments!
 Be mindful of disability issues!
22. Disability
 Equality Act 2010
 Definition – few changes to old definition
 Physical or mental impairment, substantial and
long term effect on ability to carry out day to day
activities
 Dropped requirement that must affect one or more
specified capacities
 Long term – 12 months or likely to be 12 months
 Recurring/fluctuating – continuing – less obvious
23. Disability Discrimination
 Direct
 Indirect
 Discrimination arising from a disability
 Reasonable adjustments
 Objective justification
Taylors Solicitors
Employment Team
Oliver McCann – Elaine Hurn
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: 0844 8000 263
www.taylors.com