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