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Sufferers of work-related stress: doubly neglected

About The Author

Hannah Larsen (Writer)

Hannah graduated from the University of Bristol in 2013, with a LLB Hons. Hannah works for an organisation issuing multinational employers with guidance on employment law and labour relations across the globe, and is undertaking her BPTC part-time at BPP Holborn.

Last month, nearly 4,000 industry professionals and medical advisers met for the XX World Congress on Safety and Health at Work 2014; an event co-organised by the International Labour Organisation and the International Social Security Association. Although various matters of health and safety were addressed, work-related stress proved to be a hot topic in light of the launch of the European Agency for Safety and Health at Work's (EU-OSHA) campaign: 'Healthy Workplaces, Manage Stress'.

The UK 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' (Health and Safety Executive (2005) Tackling Stress: The Management Standards Approach. Sudbury: HSE Books). For example in Barber v Somerset County Council [2004] UKHL 13, a teacher was said to suffer work-related stress after staff restructuring had required him to work between 61 and 70 hours a week. This often included evening and weekend work and led the claimant to suffer a nervous breakdown. 

It is estimated by the Executive that work-related stress affected a total of 428,000 people in the year 2011-12 (the most recent data available), contributing to the loss of 10.4 million working days. In addition, 51% of respondents to the European Survey of Enterprises on New and Emerging Risks reported that work-related stress was common in their workplace.

Where the issue cannot be resolved within the business, the employee may seek to establish a legal claim against their employer. This may be done using the common law doctrines of negligence or breach of contract, or utilising the Working Time Regulations 1998. However, the courts have been cautious to provide remedies for work-related stress through fear, it is presumed, of “opening the floodgates” to further legal action, as successful cases attract a high level of litigation and damages. For example, a teacher in Howell v Newport County Borough Council (The Times) December 5th 2000 received over £250,000 in damages and in Young v The Post Office [2002] EWCA Civ 661 nearly £94,000 was awarded to a workshop manager.

This article will discuss how cases of work-related stress are currently dealt with by the UK courts, with specific focus on the tort of negligence. The limitations that the courts impose for employees seeking redress through claims in tort will be highlighted, leading ultimately to the argument that the courts should be more willing to provide a remedy. The means by which better redress and guidance could be provided will also be discussed.

Negligence

In Sutherland v Hatton [2002] EWCA Civ 76, which concerned four conjoined appeals, Lady Hale explained the requirements which the employee must establish for a successful negligence claim:

  1. there must be a duty on the employer to take reasonable care;
  2. it must be demonstrated that the employer breached this duty, satisfying the usual principles of causation; and
  3. this must have resulted in damage to the employee (the work-related stress).

In addition, her ladyship provided sixteen principles that were intended to assist in determining the outcome of future work-related stress cases. How these principles act to defeat employee claims are explored in a few examples below.

The duty to exercise reasonable care

Employers are personally responsible for ensuring reasonable care for their employees’health and safety. This duty includes provisions such as ensuring that the workplace and work systems are safe, ensuring that the employees are provided with proper equipment and that the employees themselves are competent (which is important in cases of employees causing injuries to others). The duty arises by means of a term implied into all employment contracts and is non-delegable.

Although, as Cabrelli, a senior lecturer at Edinburgh Law School notes, the duty to exercise reasonable care is relatively “youthful”in comparison to other implied terms, its use in work-related stress claims has already become well established. Colman J first established its usage in Walker v Northumberland County Council [1994] EWHC QB 2, stating: 'there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care or from the co-extensive implied term in the contract of employment'.

With regards to an employer’s duty to take reasonable care, Lady Hale (in Sutherland) stated that this duty depends on a variety of factors, including 'the cost and practicality' of preventing work-related stress. Her ladyship acknowledged that larger institutions could offer more help in these situations, but unfortunately, that there is no 'universal entitlement to care'. As a result, employees in small workplaces where finance and resources are not in abundance may find that the care they may hope to receive is reduced, or even non-existent.

Even where an employer is in a position to assist the employee, a distinction is drawn between what they can do and what they should do. Reflections are made in Sutherland on the potential for other employees to be prejudiced by the need to rearrange work to assist the sufferer of work-related stress. However, it is hard to envisage a situation where such a rearrangement could amount to ‘prejudice’ beyond mere inconvenience. The inconvenience to another employee should not be prioritised over aiding an individual suffering with work-related stress.

Ultimately these points lead to support another proposition in Sutherland: if the only reasonable and effective way of safeguarding is to demote or dismiss the employee, an employer will not be in breach by allowing a willing employee to continue in their job. Although this seems to provide the employee with a choice, given the current economic climate, the employee may in reality have no other option but to continue.

Breach and Causation

Colman J suggested in Walker that the establishment of ‘foreseeability and causation’ would be pertinent in establishing employers’ liability. It must be established that the harmful reaction suffered by the employee resulted from the workplace pressures and that this result was reasonably foreseeable with regards to the individual concerned. Unfortunately, this has provided the courts with another opportunity to expand the margin of appreciation given to employers.

It was confirmed by the majority in Barber (below) that the test is based on ‘the conduct of the reasonable and prudent employer, in light of what he knows or what he ought to know’, as stated by Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts & Nuts) Ltd 1 WR 1776. The demands on the employer must be appreciated; it may be difficult for an employer to engage with his employees on a personal level and even more so if the employee conceals that they are stressed. However, placing a positive obligation on the employee to make their employer aware of the situation is not a practicable solution. Warning an employer is not always an easy thing for an employee to do; for example an employee may feel uncomfortable discussing personal matters, and issues such as sacrificing of confidential information can arise (e.g. Harding v The Pub Estate Company Ltd [2005] EWCA Civ 553). Further, where an employee is stressed they may feel that they are under-performing and may understandably be reluctant to alert their employer to this.

In Sutherland, the House of Lords suggested that a ‘sufficiently clear indication’ of the harm being caused might be enough to invoke the idea that harm was foreseeable. However, what exactly amounts to a ‘sufficiently clear indication’ is open to question. It is worth considering that quite a few of the notable (and unsuccessful) cases of work-related stress have occurred in relation to a second bout of work-related stress. For example in Pratley v Surrey County Council [2003] EWCA Civ 1067, the Court of Appeal attempted to justify denying an employee’s claim by suggesting that the employee’s quick onset of harm was not reasonably foreseeable. The employee had warned her employer that her work was too much and was causing her stress: in turn her employer promised that her workload would decrease. The employee went on holiday but when she returned, the employee found that no changes had been made and, resultantly, after four days, had a nervous breakdown. The Court held that although there was a risk of psychiatric injury in the future if her workload continued, the risk of injury in the short term was not foreseeable. One must therefore question what more of an indication the employer needs than an explicit warning from the employee that the pressure is too much.

Application of Sutherland

Although the House of Lords stated in Barber v Somerset County Council [2004] UKHL 13 that the “practical guidance” given in Sutherland should not be treated as if it were legislation, the aforementioned case law demonstrates that the courts are keen to stick to the Sutherland principles. Lord Walker conceded in Barber that the guidance amounted to a 'valuable contribution to the development of the law'. Further, in the lead judgment of the Court of Appeal case, Hartman v South Essex Mental Health and Community Care Trust [2005] EWCA Civ 6, Scott-Baker LJ explained that Lord Walker was not proposing divergence from the Sutherland guidelines, but merely that they should be applied freshly to the individual facts of each case.

There are however, two cases suggesting that the judicial approach is changing. First, it was held that the provision of a counselling service which the employee could have used in Intel Incorporation (UK) Limited v Daw [2007] Civ 70 was not sufficient to discharge the employer’s duty. Then, the Court of Appeal went further in Dickens v O2 Plc [2008] Civ 1144 to suggest that some active intervention may be necessary in order to avoid liability for an employee’s subsequent illness. The Court also rejected Hale’s sixteenth proposition in Sutherland that damages should be apportioned between those tortious causes which are attributable to the employer and those non-tortious causes that are not. The Court of Appeal stated that such apportionment was more suited to cases where the injury is clearly divisible and that apportioning damages seemed to be at odds with the requirement that the employer’s breach need only amount to a “material contribution” to the resulting harm. It was instead suggested, by Lady Justice Smith, that the starting assumption should be that the employee would be entitled to a full amount of damages and where other contributions to the stress could be found, discounts could made to the damages awarded.

Improving the situation for work-related stress victims

In light of increasing concern for employee health in Germany, Andrea Nahles, the employment minister, has proposed new anti-stress legislation, which would prohibit employers from contacting employees outside of work hours. This was highlighted as a major cause of employee stress, and consequently early retirement, in a recent study conducted by the German Pension Insurance Union (DGB). Research into the viability of the proposed law is to be undertaken over the next year.

Legislation would raise public awareness of work-related stress, act as a more explicit deterrent to negligent employers and hopefully clarify some of the issues discussed above. However a reluctance to legislate on matters such as employee working time is evident in the UK, as clearly demonstrated by the implementation of an “opt-out” clause into the Working Time Regulations. The clause, designed to provide greater flexibility, allows employees to work more than the maximum of 48 hours per week (established as an average over 17 weeks), differentiating the UK legislation from the much stricter regulations adopted by other EU member states.

In addition, if legislation were to be enacted, it would be an inappropriate platform to tackle preliminary issues such as how employers can recognise work-related stress and how communication from employees may be encouraged. The Health and Safety Executive has provided nationwide guidance to assist employers with issues such as these, yet in reality the guidance only amounts only to very vague pointers or goals for employers.

Industry authorship of guidance would not only be more appropriate, but would be able to provide more relevant and practical advice to employers. For example, the Royal College of Nursing has provided ‘a Good Practice Guide’ for use by the NHS and in the private sector, including statistics and real case studies from the profession to fully explain the action it proposes employers should take. At present however, this guidance is not enforceable and as a result is not of much assistance to sufferers of work-related stress, whose employers are unlikely to be motivated to implement it.The potential effectiveness of such industry guidance could easily be realised if backed by an industry regulator who is prepared to impose sanctions for non-compliance or if it were contained within a collective bargaining agreement, such that it bound subscribing employers.

Doubly neglected

Although a duty to take reasonable care is imposed on employers, the extent to which this is of aid to employees suffering work-related stress is questionable in light of the negligence cases discussed above. Even where account is taken of the difficulties facing employers in identifying and responding to work-related stress, it is arguable that the courts have been unduly forgiving when considering failures by employers to assist their employees, such that the employees have been neglected by the courts too.

How exactly work-related stress can be tackled and responded to is a difficult question; whilst legislation would provide clarity and legal redress it would not be appropriate for it to address up the underlying issues, and although industry guidance would provide more specific advice, a means of enforcement is required.

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Tagged: Commercial Law, Employment Law, Tort Law

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