Stress at Work

According to the Health and Safety Executive, stress is "an adverse reaction people have to excessive pressures or other types of demands placed upon them.   It arises when they worry that they can't cope....stress is not therefore the same as ill health.   But in some cases, particularly where the pressures are intense and continue for some time, the effects of stress can be more sustained and far more damaging, leading to longer term psychological problems and physical ill health".  

Stress at work is an issue that has achieved an increasingly high profile in recent years.  Work related stress is now the biggest occupational health problem affecting nearly one in three employees in the EU and contributing to over half of all staff absenteeism.     HSE estimates almost 13 million working days were lost due to stress in 2004-2005 and that each case of stress related ill health leads to an average of 30.9working days lost.    When stress reaches a certain level it can disrupt an individual's ability to cope and lead to physical and mental symptoms.   A variety of work related factors have been found to negatively affect well being and although no single factor is likely to cause stress a combination of problems can affect an individuals ability to cope with stress at work.      Factors which may contribute include :-

• lack of control over work
• under utilization of skills
• too high a workload, impossible deadlines
• too low a workload, no or few challenges
• low task variety
• high uncertainty e.g. lack of clear priorities and targets, job insecurity
• low pay
• poor working conditions e.g. noise, overcrowding, lack of ventilation, excessive heat, inadequate breaks
• low inter-personal support e.g. via inadequate or insensitive management, hostility from colleagues
• under valued social position
• harassment

Anyone can experience stress at work, depending on the demands of their job, the conditions in which they work and their personal susceptibility which can be increased by problems outside of the work place.     In a recent research survey of company line managers, some 88% claimed a moderate or high level of stress in their work with 39% considering that this had got worse in the previous year.    Further, 52% indicated they knew somebody who had stopped working because of severe stress requiring long term medical treatment.   

Most people will suffer from stress at work at some time.     This alone is not enough to establish a claim against an employer.       It is important to realize that stress is not in itself an injury.    A claim for personal injury pursued through a Court will only succeed where an individual has suffered a clinically recognized psychiatric condition.    An Employment Tribunal can, however, award damages for "injury to feelings" and does not necessarily require a diagnosis of a clinically recognized psychiatric condition.     

Possible routes to pursue a claim for work related stress include :-

A personal injury claim against an Employer based on negligence

An employer is under a duty to take reasonable care to ensure that its employees do not suffer injury at work.       Where an employer breaches this duty, and an employee suffers a reasonably foreseeable injury as a result, the employer will be liable to the employee in the tort of negligence.  An employer can be liable in this way not only for physical injury caused by negligence but also in respect of psychiatric injury arising from occupational stress.   

A series of Court of Appeal judgments in 2002 provided guidance as to how occupational stress claims should be approached.     The Court set out sixteen "practical propositions" or tests to be applied to the facts of each stress at work claim in order to determine whether or not such a claim could succeed.     In particular, the Court held that the threshold question to be answered in an occupational stress case is "....whether this kind of harm to this kind of particular employee was reasonably foreseeable".      Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee.    The information given, or not given by the individual employee to the employer is central to the issue of foreseeability.    The Court decided that :-

"Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job".    

In addition, it was held that an employer is not obliged to make searching enquiries of the employee and is generally entitled to take what he is told by the employee at face value unless there are good reasons to think to the contrary.  

The type of factor outlined by the Court as possibly relevant to answering whether an injury to the employee's health was reasonably foreseeable as attributable to stress at work were stated to include :-

a)      the nature and extent of the work done by the employee and, in particular :-

• Is the workload much more than is normal for the particular job?
• Is the work particularly intellectually or emotionally demanding for this employee?
• Are demands being made of the employee unreasonable when compared with the demands made of others in the same or comparable jobs?   
• Are there signs that others doing this job are suffering harmful levels of stress as well?  
• Is there an abnormal level of sickness or absenteeism in the same job or same department?

b)      Signs from the employee of impending harm to health including :-

• Has he a particular problem or vulnerability?
• Has he already suffered from illness attributable to stress at work?
• Have there recently been frequent or prolonged absences which are uncharacteristic of him?
• Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from the employee or others?

In a subsequent Court of Appeal decision in 2005 the Court commented upon the earlier 2002 judgment observing that "....what was said...was not intended to cover all the infinitely variable facts that are likely to arise in stress at work cases.  The general principles are to be found in [the 2002 judgment] but we emphasize they need care in their application to the particular facts under consideration".  

For example, in Intel Corporation (UK) Ltd v Daw, 2007 the Court of Appeal considered a claim from an employee who had suffered postnatal depression after the birth of her two children but had returned to work. She had subsequently been promoted leading to a substantial increase in her work load and the hours required to complete her tasks. The employee complained about the increased work and her health began to deteriorate to such a degree that one of her Managers found her in tears and requested that she provide a written account of the problems being experienced. An email was sent by the employee referring to her postnatal depression and drawing attention to the fact that she felt "stressed out". In spite of this clear warning her work load was not reduced following which she was signed off work with depression and attempted suicide. When the employee pursued a claim her employer sought to rely upon observations made by the Court of Appeal in the 2002 judgment to the effect that an employer who offered a counselling service to its employees was unlikely to be found in breach of its duty of care to its employees. In this case, however, the Court of Appeal held that an employer could not hide behind counselling services where the employee's illness had been caused by the employer's own failures and it should have been clear to the employer at least by the time her Manager had found her in tears and she had written setting out her problems that the excessive hours she was being expected to work were impacting upon her health.

Although many stress at works claims fail and most are vigorously defended, time consuming and expensive some principles can be established from the cases as to circumstances in which a claim might enjoy more favourable prospects of success including :-

• Where there have been prior periods of absence from work due to stress and particularly where the employer is on notice that the employee has suffered from a psychiatric illness such as depression.   
• Where the employee has specifically complained to the employer about work place issues having impacted upon his health which might include, for example, having to work excessive hours or bullying or harassment complaints which are not adequately investigated.     
• Where other employees have been absent due to stress in work and, particularly, where work loads are increased as a result of other employees absences. 
• Where appropriate risk assessments have been performed identifying stress related issues in the workplace and not subsequently acted upon.     In such an event when an employee suffers stress as a result of such an identified hazard a Court is likely to consider this was foreseeable and the employer was negligent in failing to act.
• Failing to maintain return to work programmes for employees who have already had ill health absences due to stress so that support is available to enable a vulnerable employee to adjust back into the workplace. 

A claim in the Employment Tribunal for breach of the implied term of trust and confidence

An employee who, for example, is subjected to bullying and harassment at work and, as a consequence, suffers stress may be able to claim that the implied term of trust and confidence contained within every employment contract has been breached by his employer.    A breach of this term will constitute a fundamental breach of the employment contract entitling the employee to resign and claim constructive dismissal.    To succeed with such a claim the employee must have a years continuous employment and must have followed the statutory grievance procedures.     

The implied term of trust and confidence cannot be used to claim damages for psychological injury if the injury was caused by the manner in which the employee was dismissed.        If, however, the psychological injury was caused by a breach of the implied term of trust and confidence whilst the employment relationship continued damages for injury can be awarded.    For example, where an employee has been suspended where no adequate grounds for such suspension existed and suffers a psychiatric reaction such a claim may succeed.

A claim to an Employment Tribunal under the Disability Discrimination Act 1995 (DDA)

An employee may be able to pursue a claim under this Act where any stress related illness constitutes a disability within the meaning given by the DDA.   This means that any stress related disability must constitute "a mental impairment which has a substantial and long term effect on ....the employee's normal day to day activities".    

Schedule One of the DDA defines "normal day to day activities" and in the context of a stress related illness the most likely to apply will be an impairment of memory or of the ability to concentrate, learn or understand.    

A long term effect is one that has lasted for twelve months or more or is likely to although the fact the condition may be controlled by medication does not exclude it from the DDA.   

It is not necessary under the DDA for the original cause of the stress related condition to have had any connection with work itself.     Stress may also cause or exacerbate a range of physical illnesses that can amount to disabilities in their own right such as heart conditions, epilepsy and migraines.  

An employer owes two obligations to an employee who is disabled within the meaning of the DDA :-

• Not to discriminate against the disabled employee by unjustifiably treating him less favourably than others to whom the reason relating to the disability does not apply.  
• A failure to make reasonable adjustments to accommodate the disabled employee may also amount to unlawful discrimination. 

Case law under the DDA also shows that it may actually be necessary to positively discriminate in favour of disabled employees in order to accommodate their disability.  

Other discrimination claims to an Employment Tribunal

It may be possible for an employee to pursue a claim where stress has been caused by harassment/discrimination on the grounds of race, sex, disability, age, sexual orientation, religion or belief.    Where discrimination is found Tribunals can award compensation for "hurt feelings" which may include those caused by stress brought about by any act of discrimination itself.    

A Criminal Injuries Compensation Authority claim

Such a claim will exist in a limited number of cases and, for example, where an employee has suffered stress as a result of an assault at work.     This is a Government funded scheme requiring certain conditions to be met and where a minimum award of compensation (currently of £1,000.00) can be made.

A claim to a Court under the Protection from Harassment Act 1997)

This Act was introduced to deal primarily with "stalking".      It provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to such harassment.        Damages can be awarded for any anxiety caused by such harassment and for any financial loss resulting there from.      It is possible, therefore, that where harassment occurs in the work place and leads to a pyschiatric/mental reaction a claim may be brought by an affected employee.    There is no requirement for the psychiatric/mental reaction to result in a recognized psychiatric illness and the time limit for pursuing such a claim is longer than for both claims to an Employment Tribunal (generally three months) and to a Court for personal injury (generally three years).     

A one off incident of bullying or harassment is insufficient as the Act refers to a "course of conduct" but two incidents have been held to constitute a course of conduct.

A claim under the Working Time Regulations 1998

A couple of recent court decisions have seen employees raise arguments under the Working Time Regulations.     The EC Working Time Directive which is implemented by the Working Time Regulations 1998 provide a framework for a maximum working week of 48 hours and imposes obligations upon employers to monitor an employee's working time.    In 2005 a Pub Manager who had refused to opt out of the 48 hour working week worked between 89 and 92 hours per week over a two month period, complained of the long hours that he was having to work and that it was causing him extreme tiredness and asked for assistance.      This was not provided and when the Pub Manager collapsed suffering from a psychiatric illness his claim for damages in negligence against the employer succeeded with the Court accepting that the failure by his employer to comply with the 48 hour working week was an issue relevant to the foreseeability of the Pub Manager's subsequent illness.  Employees who have not, therefore, opted out of the 48 hour working week and consider that they are being asked to work excessive hours and that their health is being compromised should draw such problems to the attention of their employer.

Please contact us for further information.