Workplace stress: protect staff and avoid litigation

Employers looking to prevent and defend claims of stress, and employees who are suffering from stress at work, should make time to read the complex litigation involved, urges Tamara Ludlow

Stress is one of the most serious problems facing teachers today, according to the NUT. Teaching is an increasingly demanding job, with escalating pressure levels. Research shows that teachers now face greater occupational stress than most other employees. One union leader has even referred to 'Ofsted-related stress', which he said was the cause of two teacher suicides.

The Health and Safety Executive defines work-related stress as 'the adverse reaction people have to excessive pressure or other types of demand placed on them'.

Employers are responsible for the effects of workplace stress on their employees. This article will examine the legal redress available to employees suffering from stress, and how employers can prevent claims and defend those that do come to court.

What is stress?

It is not always easy to identify those  situations that will cause stress to a particular employee. People have different capabilities and different lives, all of which affect their ability to tolerate stressful situations.

Some common causes of workplace stress include:

• work overload
• bullying and harassment
• traumatic incidents

Employees will often resist telling their employer that they feel unable to cope or that they are being bullied at work. But employers should be on the lookout for stress symptoms in staff. In some circumstances, employers are under a duty to notice stress, without being told of it by the employee affected.

What does the law say?

There is no specific law on workplace stress. This makes it hard for employers to manage stress amongst their staff: it can be difficult to identify a stressed individual — and to identify the employer’s legal obligations in response.

The law on workplace stress comes from case law and statute. We will now look the different types of claim an employee can bring, and at how an employer can defend against them.

Negligence

Employers have a legal duty to take reasonable care of the health and safety of their staff. An employee suffering from stress can bring a personal injury claim in the county court or High Court against an employer for negligence over the employee’s health and safety.

To succeed in such a claim, the employee must show the following:

• that the employer broke the duty of care owed to the employee
• that the employer could reasonably have foreseen injury resulting from the breach of duty
• that the employee suffered personal injury as a result of the breach

The cases tend to focus on the issue of reasonable forseeability. The courts have taken an increasingly robust approach to this in terms of how accountable employers can be (see box, below).

Negligence: what the cases say Johnstone v Bloomsbury Health Authority (1991): the employer could reasonably have foreseen that requiring an employee to work excessive hours might damage the employee's health. Petch v Commissioners of Custom and Excise (1993): the Court of Appeal said that after an employee's mental breakdown (which the employee attributed to overwork but the court held was not the result of negligence), the employer had to make sure that work given to the employee did not cause a recurrence of mental illness. Lancaster v Birmingham City Council (1999): the council accepted liability for the employee's stress-related illness, which began after she had repeatedly said she needed training to do her duties. In 2002, the Court of Appeal give a landmark judgment in four (joined) stress cases, setting out guidance on an employer's obligations: there is no particular control mechanism for psychiatric illness arising from workplace stress the test will be the same regardless of employment sector (no occupation is inherently more dangerous to mental health than any other) factors that are likely to be relevant to forseeability will include: - is there an abnormal level of sickness associated with the department or type of job? - have several employees doing the same job experienced unacceptable levels of stress? - warning signs from employees (such as mental breakdown or repeated complaints) will put the employer on notice and help employees establish liability. Employers must be vigilant and aware of any signs — but unless they know of a particular vulnerability, they can assume that an employee is able cope with normal pressures of work once on notice, employers must take remedial steps: the court suggested sabbaticals, counselling and work reallocation it is a balancing act: employers need not redistribute work at the expense of other employees. Where there is no other option, and if the only way to protect the employee’s health is to dismiss or demote, then an employer is not in breach of duty for taking such steps. provision of confidential help to employees suffering from stress will go some way to exonerating employers from liability In 2004, the House of Lords reconsidered one of the four 2002 cases, Barber v Somerset County Council. In this case, a teacher took early retirement after a mental breakdown. He said that stress was reasonably foreseeable owing to his heavy workload. The House of Lords accepted that his employers were not in breach of their duty, but said that because Mr Barber, an otherwise conscientious employee, had taken three weeks off citing stress and depression, the employer should have reduced his workload.

Contractual liability

An implied term of all employment contracts is that the employer will take reasonable steps to ensure the safety of employees in the workplace, which includes a duty to take reasonable care not to cause psychiatric harm to an employee.

This obligates employers to consider the type and volume of work they give to employees, and to provide a suitable working environment, which allows employees to perform their duties properly.

Failure to comply with this implied term can entitle an employee to resign and claim constructive dismissal in the employment tribunal.

Employers must be able to show that, as far as is reasonably practicable, they have provided a suitable environment for their employees.

Trust and confidence
Another term implied into employment contracts is the mutual duty of trust and confidence, a breach of which can entitle employees to resign and claim constructive unfair dismissal. This type of claim is increasingly used in stress cases where psychiatric injury can be attributed to the unreasonable behaviour of the employer.

Guidance
In 2007 the Court of Appeal provided guidance on workplace stress. The claimant said that his employer’s conduct of a disciplinary procedure had made him ill.

The court said that there was no contractual term to act sensitively. It was not reasonably foreseeable that the employee would suffer psychiatric illness. Another example of the courts’ robust approach to stress claims.

Working time regulations 1998

Long hours often cause stress. The Working Time Regulations limit the working week to 48 hours in most cases. In practice many employees will frequently work far longer than this.

Employers should ensure that they keep records of employees’ working hours, rest breaks and leave. They should take action where necessary to ensure that employees are not overworked.

Discrimination law

The law prohibits harassment on grounds of sex, race, disability, sexual orientation, religion and belief, and age. To be harassed in this way will be stressful for the victim, and employees can bring claims in the employment tribunals against the employer (e.g. the school or local authority) and the perpetrator, an individual.

If the claim is successful, compensation is likely to include an element for injury to feelings. There is no cap on compensation payable in discrimination claims.

Employers can rely on the statutory defence that they took all reasonable steps to prohibit this form of discrimination — i.e. that they had trained the workforce thoroughly in anti-harassment issues and issued  appropriate sanctions.

Disability and stress

The Disability Discrimination Act 1995 must be considered separately from other discrimination legislation. As stress per se is not an illness listed under the World Health Organisation's international classification of diseases, it does not fall within the legal definition of disability.

But stress-related illnesses such as clinical depression do fall within the definition. Employers must not discriminate, and should make reasonable adjustments in the workplace to help their staff avoid stress-inducing situations.

Protection from harassment

Employees who are harassed and bullied for reasons other than those listed in ‘Discrimination law’, above, can make claims in the county court or High Court under the Protection from Harassment Act 1997.

Claimants will need to prove only that they have suffered anxiety or distress as a result of the harassment. They will have to show a course of conduct — a one-off act of harassment will not suffice.

There is no ‘reasonable steps’ defence open to employers, which makes such claims particularly tricky to defend.

Health and safety at work

Workplace health and safety is regulated by the Health and Safety Executive. Stress is covered by the Health and Safety at Work Act 1974. The law does not allow employees to sue employers for damages for breach of the Health and Safety at Work Act — but penalties for breach are serious, and can include criminal sanctions.

Risk assessment
Employers must carry out a risk assessment of workplace health and safety — and this includes an assessment for stress. By carrying out proper risk assessments, employers can identify and avoid stress-inducing situations before they become too serious.

An employer who is prosecuted for breach of the Health and Safety at Work Act will have to show that it undertook a properly planned risk assessment and where necessary acted upon this.

Can you dismiss an employee suffering form stress?

Once an employee has raised a complaint of stress, employers often feel loathe to act, even if dismissal might seem to be the only reasonable option to avoid inducing or exacerbating stress.

Employers should always be cautious after such a complaint — in particular in respect of the duty to make reasonable adjustments under the Disability Discrimination Act. The courts have accepted, however, that it is possible to dismiss an employee fairly in such circumstances.

Recently the Court of Appeal went so far as to find that an employer could fairly dismiss an employee for ill-health despite the fact that the employee's stress-related illness was (properly) attributed to the conduct of the employer.

Preventive action

It is preferable for both employers and employees to avoid litigation. Whilst there is no guaranteed way to avoid legal action, employers can put procedures in place to minimise stress at work — and the likelihood of any subsequent claims (see box, below).

Best practice for dealing with stress at work carry out a specific risk assessment for stress have anti-harassment and anti-bullying policies set up communication channels (in addition to formal grievance procedures) so that staff can raise concerns about workload e.g. regular meetings ensure that employees are properly trained for the job monitor employees' working hours, leave-breaks and annual leave monitor sickness absence and the reasons for it ensure that employees who have been on any period of extended sick leave are invited to a ‘return-to-work’ meeting to discuss any concerns where employees cite workplace issues as the reason for absence, regardless of whether you accept liability, ensure that these issues are dealt with on the employee's return in the case of stress-related disabilities, make reasonable adjustments so that the employee can carry out his or her duties

Find out more...

• The Health and Safety Executive site has a useful section on good practice for employers dealing with stress: www.hse.gov.uk/stress/experience.htm
• Tackling Stress, NUT Health and Safety Briefing (1999): www.teachers.org.uk/resources/word/tackling_stress.doc
• Disability Discrimination Act: www.direct.gov.uk/en/DisabledPeople/RightsAndObligations/DisabilityRights/DG_4001068

Tamara Ludlow is a solicitor at Morton Fraser LLP. She specialises in employment law