There have been some interesting developments in the area of stress claims. The latest decisions highlight the numerous difficulties for individuals in pursuing such claims. Matthew Gingell of Webster Dixon examines the current legal position and assesses the implications from the employer’s perspective.
Claims in negligence
All employees have a duty to take reasonable care for the safety of their employees. The case of Hatton v Sutherland and other appeals is the leading authority.
The Hatton case involved four employers appealing against the findings of liability for four employees who had psychiatric illnesses caused by stress at work. Two of the employees, Mrs Hatton and Mr Barber, were teachers in secondary schools. Mrs Jones was an administrative assistant in a local authority training centre and Mr Bishop was a raw materials operative in a factory. The Court of Appeal allowed the employer’s appeals in three of the cases Hatton, Barber and Bishop.
Although the facts of each of these three appeals are different, interestingly, it had been held that none of the employees had excessive demands placed on them and any complaints that were made were insufficient to put the employer on notice that it was reasonably foreseeable that the employee could suffer from psychiatric injury.
In the fourth case, Jones, the employer’s appeal was dismissed. The case of Jones may be distinguished in that it had been held that Mrs Jones had made numerous complaints, excessive demands had been placed on her as an employee, and she had suffered from harassment.
In Hatton Lady Justice Hale provided useful guidelines in relation to stress at work claims and the following observations may assist employers:
(1) All employers have a duty to take reasonable care for the safety of their employees to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment and a safe system of working.
(2) A key question is whether the kind of harm the particular employee has suffered was reasonably foreseeable. Foreseeability depends upon what the employer knows (or reasonably ought to know) about the individual employee. The factors relevant in determining whether the kind of harm to the particular employee was reasonably foreseeable include:
- Is the workload much more than is normal for the particular job?
- Is the work particularly intellectually or emotionally demanding for the employee?
- Are the demands being made of the employee unreasonable when compared with the demands made of others in the same or comparable jobs?
- Or are there signs that others doing the job are suffering harmful levels of stress?
- Is there an abnormal level of sickness or absenteeism in the same job or the same department?
- Has he a particular problem or vulnerability?
- Has he already suffered from illness attributable to stress at work?
- Have there recently been frequent or prolonged absences which are uncharacteristic of him?
- Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from him or others?
(3) The employer does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisors.
(4) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
(5) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances. Examples may include giving the employee a sabbatical; transferring him to other work; re-distributing the work; giving him some extra help for a while; arranging treatment or counselling; and providing mentoring schemes to encourage confidence.
(6) An employer who offers a confidential advice service, with regard to appropriate counselling or treatment services, is unlikely to be found in breach.
(7) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable. These include the interest of other employees and the need to treat them fairly, for example, in any re-distribution of duties.
(8) Employers should not be complacent. Each case will depend on its own facts.
There is authority, in limited circumstances, for contractual claims to be made at court if an employee suffers from psychiatric illness as a result of a breach of their contract of employment by their employer. Contractual terms which may be breached are, for example, the implied duty of trust and confidence that an employer should not “without reasonable and proper cause, conduct itself in a manner calculated (or) likely to destroy or seriously damage the relationship of trust and confidence between employer and employee” or the implied term that an employer must take reasonable care for the health and safety of his employees.
However, the House of Lords in Johnson v Unisys Ltd held that where the unfairness occurred in the manner of a dismissal the only available remedy is a tribunal claim for unfair dismissal, and not a claim for psychiatric harm resulting from breach of the employment contract or for negligence.
The issue at what point the pre-termination breach of trust and confidence becomes part of a dismissal so as to prevent a claim in the courts has arisen in cases where employees have suffered psychiatric injury as a result of unfair disciplinary procedures and suspensions, but the law in this area is in a considerable state of flux. There is uncertainty, for example, as to the employer’s additional liability for psychiatric injury (additional, that is, to the liability for unfair dismissal) where an employee is unfairly constructively dismissed by reason of oppressive treatment.
Claims in the employment tribunal
In Dunnachie v Kingston Upon Hull City Council the Employment Appeal Tribunal held that compensation for non-economic loss, whether it is for injury to feelings or recognised psychiatric illness, is not recoverable in an employment tribunal unfair dismissal claim.
It should be noted, however, that providing the necessary causal link can be established between compensation for economic loss flowing from distress/psychiatric injury it can be recoverable on the proviso that there is a statutory maximum cap of £53,500 for unfair dismissal claims (rising to £55,000 on 1 February). So an employee who is made mentally ill as a result of his unfair dismissal can claim for the loss of earnings which is a consequence of his illness (subject to the cap).
Employees may claim constructive unfair dismissal on the ground, for example, that an employer breached the implied term of trust and confidence and/or the implied term relating to health and safety of its employees, by overburdening the employee with work or providing inadequate working conditions. The breach(es) must be fundamental amounting to repudiatory conduct by the employer sufficient to allow the employee to resign in response to the breach(es).
Sex[***] discrimination and race discrimination
The wording of the Sex[***] Discrimination Act 1975 and the Race Relations Act 1976 is wide enough to encompass claims for psychiatric injury, including injuries to feelings. An employee may, for example, claim that he or she has been treated less favourably on the grounds of his or her race or sex[***] in terms of working conditions/environment in comparison with others of a different sex[***] or race.
Employers should ensure that the working conditions and workloads of all employees are monitored on a regular basis.
Employees who suffer a stress condition as a result of their working conditions may be ‘disabled’ within the meaning of the Disability Discrimination Act 1995 (DDA) and, accordingly, employers may have additional legal obligations.
A person has a ‘disability’ within the meaning of the DDA if he has “a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities” (s.1 of the DDA). The mental impairment must be a clinically recognised illness, the illness must be more than minor or trivial, the illness must be likely to last for 12 months or more, or for the rest of the person’s life, and the effect must be on normal day to day activities as opposed to specific tasks at work.
If an employee satisfies, or may satisfy, the definition of ‘disability’ within the meaning of the DDA, employers must ensure that the employee is not treated less favourably than others on the grounds of his disability. Employers also have an obligation to make reasonable adjustments. In the situation where an employee is, or may be, ‘disabled’ employers must consider:
- allocating the disabled employee’s duties to another person
- transferring the employee to fill an existing vacancy
- altering the employee’s working hours
- assigning the employee to a different place of work
- allowing the employee to be absent during working hours for rehabilitation, assessment or treatment
- giving the employee, or arranging for him to be given, training
- acquiring or modifying equipment
- providing supervision, and
- taking any other steps which would be reasonable in all the circumstances to prevent disadvantage to a disabled employee.
Employers should be aware that there are a number of avenues open to employees suffering from overworking/inadequate working conditions. Recent case law demonstrates that there are numerous difficulties for employees pursuing stress claims. Employers should, however, be vigilant in ensuring that all employees are working under reasonable conditions and when individual situations do arise appropriate action is taken.