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Work Related Stress

Work-Related Stress - Stress In The Workplace

The HSE define stress as: "The adverse reaction a person has to excessive pressure or other types of demand placed upon them."

The Health and Safety Executive have identified six key areas to help employers understand the "cause" of [stress] and how to undertake a "risk assessment" for "work-related stress". These are known as "Management Standards":

HSE Management Standards

1. the demands of your job;
2. your control over your work;
3. the support you receive from managers and colleagues;
4. your relationships at work;
5. your role in the organisation;
6. change and how it's managed.

In Spring v Guardian Assurance Plc the Lords stated:-

"The changes which have taken place in the employer-employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of its employees".

The Court of Appeal has laid down 16 "practical propositions" to be considered in injury claims arising from work-related stress (see below). These propositions are very important, and you want to take the time to read them to establish your employers' culpability with regard to its respective "acts and omissions". Put short, you can elucidate in your Tribunal claim the steps your employer failed to undertake, which it could have taken, and should have taken. This is important, as to make the employer liable for damages, you need to establish its torts, viz: what [reasonable and practicable steps] the employer ought to have taken, which it omitted to take.

1. There are no special "control mechanisms" relating to work-related stress injury claims; ordinary principles of employers’ liability apply.

2. The "threshold" question is whether this kind of "harm" to you was "reasonably foreseeable". (Does the employer know you have a disability, past or present)

3. "Foreseeability" depends on what the employer knows or should know about the individual employee. Unless aware of a particular problem or vulnerability (disability), the employer can usually assume that the employee can withstand the normal pressures of the job.

4. The test is the same for all occupations; no occupation is to be regarded as "intrinsically dangerous" to mental health. (what about soldiers who subsequently suffer from Post Traumatic Stress?)

5. Reasonable "foreseeability of harm" includes consideration of:

(i) the "nature and extent" of the work
(ii) whether the workload is much greater than normal (excessive workload)
(iii) whether the work is particularly intellectually or emotionally demanding for that employee
(iv) whether unreasonable demands are being made of the employee (excessive workload)
(v) whether others doing this job are suffering harmful levels of stress
(vi) whether there is an abnormal level of sickness or absenteeism in the same job or department.

6. The employer can take what the employee tells it at "face value", unless it has good reason not to and need not make searching enquiries of the employee or his/her medical advisors.

7. The "duty to take steps" is "triggered" by [indications] of "impending harm to health", which must be plain enough for any [reasonable employer] to realise it has to "act". (*crying whilst at work)

8. There is a "breach of duty" only if the employer has failed to "take steps" that are reasonable in the circumstances, bearing in mind the "magnitude of the risk of harm occurring, the gravity of that harm", the costs and practicability of preventing it and the justifications for running the risk.

9. The employer’s size, scope, resources and demands on it are relevant in deciding what is reasonable (including the need to treat other employees [fairly], for example in any redistribution of duties).

10. An employer need only take steps that are likely to do some good; the court will need expert evidence on this.

11. An employer that offers a confidential advice service, with appropriate counselling or treatment services, is unlikely to be found in breach of duty. (This is no longer aplicable, see: Dickens v O2).

12. If the only reasonable and effective way to prevent the injury would been to dismiss or demote the employee, the employer will not be in breach in allowing a willing employee to continue working.

13. In all cases, it is necessary to [identify the steps] that the employer could and should have taken before finding it in "breach of duty of care".

14.The claimant must show (establish facts) that that "breach of duty" has "caused" or "materially contributed" to the "harm suffered". It is not enough to show that occupational stress "caused" the "harm" -  it must be linked with the "breach". (Tie in - "excessive workload" combined with "harassment" "triggered" the employees (disability) asthma, panic attacks, depression etc.)

15.Where the "harm" suffered has more than one "cause", the employer should only pay for that part caused by its wrongdoing, unless the harm is indivisible.  (This has now changed, see; Dickens v O2)

16. Assessment of damages will take account of pre-existing disorders or vulnerability and the chance that the claimant would have suffered a stress-related disorder in any event.

* In our own case, my wife had burst into tears on two occasions in front of management. My wife's 'visible distress' was sufficient "cause" to "trigger" the employers "duty to take reasonable 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. See: Intel Incorporation (UK) Ltd v Daw, Court of Appeal 2007

Establishing Your Employer's Liability

In reference to 14 above, the Court of Appeal have stated: "It is not enough to show that occupational stress "caused" the "harm" -  it must be linked with the "breach". Again, the Court believes that "no occupation is to be regarded as "intrinsically dangerous" to mental health" (see 4 above).

The burden is on you, to establish facts, whereby a Judge could conclude that occupational stress "caused" the "harm "to your "health", which you are seeking compensation for. However, you must make sure your employer is aware (constructive knowledge) that you have a particular problem or vulnerability (See 3 above) such as a mental or physical impairment, viz: disability.

Therefore, you have to establish the facts, and tie in (link) the "workplace stress" as the "root cause" of your injury. "Work-related stress" combined with  "harassment" "triggered" the reoccurrence of a past or present "disability" (eg. asthma; depression; panic attacks; IBS; anxiety disorders;). In turn, establish the facts within your grievance letter of the effects your impairment have had (or is having) on your "day to day activities". This potentially makes the employer liable to pay you compensation for disability discrimination under the Equality Act 2010.

In my own case, I established the following facts within my Employment Tribunal claim, as to what my employer could have done, and should have done, but failed to do after I had invoked the grievance procedure. A failure amounts to a  "breach of duty":

Health & Safety Breaches:

Management were in the knowledge the nature and extent of my work had increased, due to a rise in both customer volume and profits,
Management knew the demands placed upon me were both excessive and unreasonable,
Management had failed to provide me adequate support or supervision to cope with their expectations (demands),
Management knew I was considered an ordinary employee,
Management were verbally informed that my workload was excessive, but omitted to act, to take "reasonable and practicable steps",
Management were aware (constructive knowledge) I had a problem or vulnerability (disability),
Management had failed to undertake any employee consultations, stress audits or workplace training during my tenure,
Managements failure to take any preventative measures to limit "work-related stress" meant it had little defence in the Tribunal,
Management had failed to observe the HSE Management Standards (1-6 above) which are 'guidelines' to 'assist' employers in combating work-related stress,
Management had failed to invoke and observe the company's own Health & Safety Policy (contractually binding)
Management had failed to invoke and observe the company's own Stress Management Policy,
Management had failed to undertake a stress specific "risk assessment" to identify the risk of harm excessive workload posed to my health,
Management failed to recognise the magnitude of the risk of harm occurring, or the gravity of that harm,
Management failed to recognise its duty of care to my person, to act with "due diligence and care"
Management had failed to refer me to its occupational counselling service,
Management had failed to refer me to its occupational health advisors,
Management had failed to offer me a sabbatical,
Management failed to observe their 'statutory duties' germane to the company's health and safety obligations (statutory duties).

Disability Discrimination:

Management conceded the fact, it had never undertaken any workplace training, to promote, communicate or implement the organisations Disability Discrimination Policy,
Managements failure to take any preventative measures, meant it had little defence in the Tribunal,
Management had constructive knowledge I had a disability (asthma)
Management knew a vulnerability existed, (physical impairment)
Management failed to consult or implement the organisations own Disability Discrimination Policy,
Management failed to consult my person, with regard to any reasonable adjustments it could have made,
Management failed to make any reasonable adjustments, at all,
Management failed to seperate myself and my harasser, despite my own request that it do so,
Management failed to recognise the magnitude of the risk of harm occurring, or the gravity of that harm, which subsequently occurred,
Management failed to recognise its duty of care to my person, to "protect my health" from a "foreseeable risk of harm",
Management failed to observe the "mutual trust and confidence" or "good faith performance"
Management failed to observe the European Human Rights Commission 'guidelines' and 'recommendations' on disability discrimination and harassment.
Management failed to observe their statutory duties germane to the Disability Discrimination Act (now defunct, and replaced with Equality Act 2010)

Sex Harassment:

Management knew my line manger habitually shouted at employees, and conceded it had previously warned him against doing so,
Management conceded it had investigated my line manager twice in the previous two years for harassment, (albeit management claimed they could not find any evidence of harassment)
Management had never undertaken any workplace training, to promote, communicate or implement the organisations Sex Discrimination Policy,
Management failed to take reasonable and practicable steps to (i) prevent further acts of harassment being inflicted upon my person by a known harasser, or (ii) have eradicated harassment within the working environment, after the previous two incidents.
Management failed to take reasonable and practicable steps to prevent my person from being further victimised, having exercised my statutory rights by invoking the grievance procedure,
Managements failure to take any preventative measures, meant it had little defence in the Tribunal (omissions to act),
Managements Sex Discrimination Policy was not in line with the European Commission Code of Practise for Sex Harassment 1991,
Management failed to observe the organisations own Sex Discrimination Policy and procedures,
Management failed to seperate myself and my harasser, despite my own request that it do so,
Management failed to prevent the harasser from further harassing and victimising me, (i) breach of duty of care, (ii) breach of mutual trust and confidence (iii) vicarious liability (iv) failure to act in "good faith",
Management failed to observe the European Human Rights Commission 'guidelines' and 'recommendations' on sex harassment,
Managements omission to prevent further acts from being inflicted on my person made the company and its directorship vicariously liable,
Management failed to observe their statutory duties germane to the Sex Disrimination Act (now defunct, and replaced with Equality Act 2010)

Tribunal v Court

The claim for [disability discrimination] at work can only be brought in an employment Tribunal.
A claim for 'personal injury' [caused] by workplace stress can only be brought in a Court.
Where work-related stress has [triggered] a disability/impairment, then the employee ought to pursue an Employment Tribunal claim.

The benefits of the Tribunal are as follows:

Employment Tribunals are less formal than Courts, and less intimidating,
Employment Tribunals are set up for employees' (past and present) to represent themselves as litigants in person.
Should you lose your case, the costs and fees of your employer are unlikely to be made against you.
Each side pays their own costs and fees.

The real benefit of this, is that in representing yourself, you don't really have too much to lose should things go pear shaped. Should you win your case, the awards for disability discrimination cases are unlimited.

Legal Point: The law states that no job is intrinsically "dangerous" to an employees' health, unless the employer is aware of circumstances whereby the employee is at a "risk of harm". The fact remains, workplace stress induces a heightened state of alertness. Stress induces rapid heartbeat, rapid breathing, increased anxiety and impairs your "abilities and capabilities". It also manifests itself by seen and unforeseen ailments, such as asthma, rashes, exzema, high blood pressure, headaches, migraines, sore bottom, rosacea, IBS etc,.

Workplace Danger - The Employment Rights Act 1996

In the case of Havest Press -v- McCaffrey, the Employment Tribunals Appeal found that the "conduct of workplace colleagues" can amount to a workplace "danger". This is significantly important, as those employees' who cannot bring an Employment Tribunal claim for discrimination and or harassment under the Equality Act 2010, could argue that the conduct of workplace colleagues posed a "significant danger" within the working environment under the auspices of the Employment Rights Act 1996. You would need to establish a case, whereas the Employment Tribunal could conclude that a colleagues conduct 'posed' a "risk of harm" to your "health or safety". See whistle-blowing.

Employment Case Law

1). Dickens v O2 PLC 2008  This is a very important case, where workplace stress led to the triggering of an employee's disability. The Claimant, Ms Dickins, was employed as a secretary. She had informed O2 on a number of occasions that she needed help with her work and was exhausted. Ms Dickens asked for a less stressful job and was told to wait for 3 months. Ms Dickens requested a “sabbatical” and told her manager, in effect, that she was at the end of her tether. Despite repeated requests, still, nothing was done. "As a consequence", Ms Dickens was signed off work for "anxiety and depression" (regognised disabilities) and her employment was terminated. Ms Dickens brought a claim in the County Court for psychiatric injury, negligently caused by excessive stress and was awarded damages in excess of £100,000.

The Court held their was a "reasonably foreseeable risk of harm" to Ms Dickens. Ms Dickens had expressed and exhibited "signs of impending harm to health". The signs were plain enough for O2 to have realised that Ms Dickens would “go over the edge” due to stress, and suffer an "injury to health" unless O2 took appropriate action to alleviate the stress. The Court of Appeal held that an employer's short-term counselling service could not have reduced the risk of a breakdown, since it did not reduce her workload - the cause of the stress.

The Court of Appeal held that where there is an obvious "risk of harm" to an employee’s health, or that the employee may be harmed by stress at work, the employer needs to get to the "root cause" of the employee’s stress, and manage the situation to remedy stress at work. Further, employers have to have an adequate stress and bullying policy and, most importantly, to train managers to recognise stress, to identify symptoms, and how to act appropriately when symptoms are identified.

2). Intel Incorporation (UK) Ltd v Daw, Court of Appeal 2007 Mrs Daw suffered a breakdown "caused" by chronic depression (disability) arising from her 'excessive workload'. She issued proceedings against her employer for damages for personal injury arising from the employer's negligence, "breach of statutory duty" and "duty of care". Mrs Daw had complained about her workload in e-mails, and was found in tears by one of her line managers, no urgent action plan was put in place immediately to reduce her workload. The Court of Appeal held that an employer's short-term counselling service could not have reduced the risk of a breakdown, since it did not reduce her workload - the cause of the stress. At best, such a service could only have advised the employee to see her own doctor. This was insufficient to discharge the employer's duty to provide a "safe working environment". While it recognised that Intel could not have reasonably foreseen Daw's breakdown in health by virtue of her medical history, this was not considered to be relevant.

The Court of Appeal has made it clear that where an employee is experiencing stress relating to excessive workloads, a failure by management to combat work-related stress - when made known to it - is likely to lead to a finding that the employer has failed to discharge its "duty of care owed" to its employees. The court also accepted that the employer did not have prior knowledge that the employee was susceptible to work-related depression. But despite this lack of knowledge, the employer was still held liable, because it was aware of Daw's excessive workload. Employers must put measures in place to reduce workloads when receiving grievances from staff [who cannot cope]. Otherwise, the employer will risk paying considerable damages in claims for personal injury caused by the working environment. Mrs Daw was awarded £114,764 + interest whilst awaiting the Court of Appeals decision.

Statutory Law:

The Management of Health and Safety at Work Regulations 1999 (MHSWR 1999).

R.3(1)(a) "Every employer shall make a suitable and sufficient assessment of - the risks to the health and safety of his employees to which they are exposed whilst they are at work."

R. 5(1) "Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures." (Enshrined in the HSE Management Standards")

R.6 "Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment."

R.10(1) "Every employer shall provide his employees with comprehensible and relevant information on - (a) the 'risks' to 'their health and safety' 'identified' by the 'assessment'."

The Health and Safety at Work Act 1974 (HSAWA 1974):

S.1 "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees."

S.2(c) "The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees."

S.2(e) "The provision and 'maintenance' of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work."

S.7 "It shall be the duty of every employee while at work - (a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work."

A Grievance Letter Template Aid can be purchased for £12.00 should you be considering entering the grievance procedure due to work-related stress. This encompasses legal terminology to place the burden on your employer to {act reasonably} to remedy the [breach] of "duty of care".

Disclaimer: The author of this web site and sub-domains accepts no liability arising from the use of, or any party of, or reliance on the information contained within this web site, and or its respective pages or downloads. The content is not intended to be legal advice, and you should not rely upon it in any respect to any specific situation you may be facing. Therefore, the content of this web site will serve as a good springboard to get professional legal advice from a solicitor.

Disclaimer

The author of this web site and sub-domains accepts no liability arising from the use of, or any part of, or reliance on the information contained within this web site, and its respective pages or downloads, opinions expressed verbally via telephone or otherwise. The content is not intended to be legal advice, and you should not rely upon it in any respect to any specific situation you may be facing. Therefore, the content of this web site will serve as a good springboard to get professional legal advice from a solicitor.