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Workplace stress is not a clear-cut issue
A legal perspective on workplace stress highlighting the value to employers of having a workplace counselling policy in place. First published in the Western Morning News Thursday March 24 2005
Law Special
Western Morning News
Thursday March 24 2005
Workplace stress is not a clear-cut issue
Health: Occupational stress is hard to prove but employers need to take staff complaints seriously to avoid the repercussions.
John Walker became the first worker in recent times in England, to sue an employer successfully for stress from overwork just over ten years ago. It proved to be a landmark decision and one which has altered the landscape of health and safety in the workplace. Not only should firms be aware of the physical demands of employment, the Walker case highlighted that psychological pressures also now need to be considered.
But that is not to say the floodgates have since been opened and hundreds of occupational stress-related claims have been successfully brought against public and private sector employers. Far from it, says Mike Shiers, a personal injury partner with Plymouth law firm Nash & Co.
“Historically it has not had a great success rate,” Mr Shiers said. “There has been a lot of publicity about the cases that do succeed but in reality many do not.”
Mr Shiers believes the example of stress flies in the face of the notion that Britain is a litigious society and that the issue is, in face, a very complex one for employers, workers and lawyers.
“Stress is not a clear cut issue,” he added.
The Walker case found Northumberland County Council liable for damages because of its unreasonable failure to provide a safe system of work. Mr Walker suffered a nervous breakdown through his duties as leader of a team investigating child abuse cases.
The council had promised to provide him with an assistant but had failed to do so and Mr Walker had then suffered a second mental breakdown forcing him to retire at the age of 50. The watershed case seems to epitomise both sides of the argument.
“Providing employers take their health and safety responsibilities seriously, listen to the problems of their workforce and have a confidential referral scheme in place for staff to visit counsellors, then they shouldn’t have huge amount to worry about” Mr Shiers advised. “These cases are still very difficult to prove.”
But he added: “There is the other side of the coin. There are people who have been treated appallingly and stress does ruin all aspects of their lives. People sometimes never work again.”
When Mr Walker a member of Unison, won his court case it may have introduced a new health and safety watchword but not a new rule of law.
Mr Shiers said “Stress claims are a relatively modern concept but it’s not a new issue in terms of the law. Employers have always had to provide a safe place to work. The difference is the injuries are psychological rather than physical.”
Many of the high-profile successes have involved the public sector. Last year, Somerset County council was found in breach of its responsibilities to teacher Alan Barber. The local authority was accused of not taking reasonable steps to avoid injuring his health when the school had become aware of difficulties at work that had caused “stress and depression”. After returning to work after his first spell of illness, nothing was done to help him.
‘One problem is that GPs are more likely to write stress on a sick-note’
This is an example of what Mr Shiers describes as the “two-stage scenario”. He explains the process of building a stress-related case against an employer is not an easy one. A worker can be absent from work and then return. On their return, an employer should be on notice that the reason for their absence was stress-related. Then, if an employer continues to make unreasonable demands of that person, it is much easier to establish liability.
“Most of the cases that have gone to court have this two-stage scenario,” Mr Shiers added. But even then, he continued, the two-stage process makes it difficult to prove the employer’s culpability – they could say the worker was still suffering from the original case of stress, for which the employer is not liable.
A personal injury lawyer for 14 years Mr Shiers says when somebody looks to him to make a claim against an employer as a result of a stress-related illness he is looking for instances where they have been exposed to negligence. He said “What I’m looking for is: Has this person been exposed to negligence which has caused a stress related illness?”
“The difficulty we face is whether the illness was foreseeable.”
“To find an employer liable we have to prove the employer could foresee not only that they were getting stressed but that they had recognisable psychological illness.”
This entails a lot of groundwork. Various criteria need to be fulfilled to prove that they are suffering from an illness such as a reactive depression or in severe bullying cases post-traumatic stress.
Mr Shiers continued: “One problem is that GPs are more likely to write stress on a sick-note – they haven’t always got the time to discuss the patient’s problems in detail. The number of reported people suffering from stress has increased – but that’s not to say they if we sent them to a psychiatrist they would confirm a recognisable illness. Employees may also have problems outside of the workplace which further muddies the waters.”
We have to prove that an employer knew or had reasonable knowledge they were creating the problem, and that if they had taken the proper steps the illness would have been avoided.”
But while the number of cases brought against the public and private sector are not as high as many would imagine, employers have heeded the warnings.
Mr Shiers said: “Employers have introduced measures to address the problem in the form of referrals. Many employers including, for example, local education authorities have schemes where employees can obtain counselling free of charge and without their employer’s knowledge.
“These measures will greatly increase the prospects of employers successfully defending theses claims.”
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