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.
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
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.
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.
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.
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.
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
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