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10 February 2004

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Stress at work

Most employers these days are familiar with having to cope with employees being off work due to stress and depression. Some would say that it is a 'bandwagon' that many employees jump on whenever things at work get tough and they find themselves the subject of actual or intended disciplinary action. The problem is how to decide whether the 'stress' is work related or due to personal circumstances. Most of us, at one time or another have had personal problems and as such have found work stressful because of this. On the other hand there are occasions when work does cause real stress so an employer has to be aware of this.

The legal exposure for employers in terms of stress is often exaggerated but it does exist to a certain extent. So far, case law has shown that stress will rarely be deemed to be a disability under the Disability Discrimination Act 1995. In such cases the employee would have to show that he or she is suffering from a mental impairment which is clinically recognised and is likely to last for more than twelve months. However, if an employee is being asked to do much more than is reasonable then this could amount, in extreme cases, to a constructive dismissal. In a recent case the applicant was awarded the then maximum compensation of 51,700 for the unfair dismissal. The point to remember is that an employer is obliged to maintain trust and confidence and a safe system of work.

However, it is not all doom and gloom. The Court of Appeal have set out guidelines for employers to judge whether or not there is a case and the level of proof that an employee would need to demonstrate in order to be successful with their claim. These include the following points.

  • Employers are usually entitled to assume that employees can withstand the normal pressures of a job, unless they know of a particular problem or vulnerability. It is up to the employee to decide whether to stay in a stressful job.

  • Employers are entitled to take what they are told by employees at face value unless they have good reason to think otherwise. They do not have to make searching enquiries regarding the ability of the employee to cope with the pressures of the job.

  • An employer will not be in breach of his duty by allowing an employee to continue in a stressful job if the only alternative is to dismiss or demote him/her. The employee must decide whether to risk a breakdown in his/her health by staying in the job.

  • To trigger a duty on the part of the employer to take action, indications of impending harm to health arising from stress at work must be plain enough to show that action should be taken to relieve that stress.

  • The employer is in breach of his duty of care only if he fails to take steps which are reasonable bearing in mind the size of the risk, the gravity of the harm, the cost of preventing it and the justification for running the risk.

  • There are no occupations that should be regarded as intrinsically dangerous to health.

  • An employer who offers a confidential counselling advice service with access to treatment is unlikely to be in breach of duty. An employee must show that his/her illness has been caused by a breach of duty, not just occupational stress.

  • Damages will be reduced to take account of pre-existing disorders or the chance that the claimant would have fallen ill anyway.

The Court of Appeal applied these guidelines to four recent cases. In one it was decided that a teacher's workload was no greater than other teachers in similar schools and the pattern of absence and illness were attributable to causes other than work. In another the head of a mathematics department had his award of 101,041 overturned because he had not told the school about his symptoms until his breakdown.

In a third case a worker in a manufacturing company had his damages overturned on appeal because there was nothing excessively demanding about his work. However, in the fourth case, the Court of Appeal upheld an award of 157,541 given to an administrative worker in a local council because she had been forced to work excessively long hours and do the work of three people. The court decided that the employer should have foreseen the risk to the employee so had failed in its duty of care.

An employer therefore has to judge whether the job being required of an employee is reasonable and if there is any indication that an employee is not coping due to the demands of the job then an employer has a duty to take appropriate action to reduce those demands. Knowing whether the employee is able to cope with pressure at the selection stage is also useful. To a certain extent this can be determined by the use of personality profiles. 

If you feel that these would be useful for your organisation, contact The AP Partnership for further information.

May 2002




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