Hayley Titchner outlines the main legal claims that employees suffering from work-related stress could pursue.
Employers are developing a growing awareness of the need for employees to have a healthy work-life balance. This is especially important when employee health and well-being and work-related stress is becoming a prevalent feature within the workplace environment.
In this brief guidance, we look at work-related stress and the issues surrounding it.
Why is work-related stress becoming such a serious issue?
- In a Health and Safety Executive Survey from 2017/2018 4 million working days were lost due to work-related stress, depression or anxiety.
- In accordance with the figures from the Centre for Mental Health nearly half of all long-term sickness absences are now caused by mental health problems;
- The Department of Health estimates that 1 in every 4 people will suffer from a mental health condition at some point in their lifetime;
- Depression and anxiety are the most common stress-related conditions and affect 20% of the population in the UK.
What is work-related stress?
The Health and Safety Executive defines work-related stress as:
“the adverse reaction people have to excessive pressures or other types of demand placed on them”
Stress is a reaction and will not normally amount to an illness. However, it often results in, or is a trigger for, other mental health illnesses. For example clinical depression, anxiety, and post-traumatic stress disorder.
How can stress show itself in the workplace?
- Poor performance/errors
- Long hours
- Poor attendance
- Indecision making
How can employers consider the impact of stress in the workplace?
- Carrying out risk assessments
- Review levels of absence
- Carrying out staff surveys
- Discussions during team meetings
- Using appraisals
- Using return to work interviews
- Implementing a Stress at Work Policy
- Training managers to recognise the situations likely to cause stress and identify the symptoms
What are the main legal claims an employee suffering from work-related stress can pursue?
Civil claim for Personal Injury
The main source of case law on stress concerns the law of negligence. Under the tort of negligence there is a common law duty on employers to take reasonable care of their employees in the workplace.
An employee can pursue a claim for personal injury if they can show there has been a breach of that duty of care. That such a breach caused the employee to suffer from a recognisable psychiatric condition (stress alone will not be enough) and that it was reasonably foreseeable the employee would suffer from such a condition.
Under the Disability Discrimination Act 1995, protection was only provided to individuals suffering from a ‘clinically well recognised’ mental health condition. This requirement was removed from the Equality Act 2010. Now an individual suffering from a mental health condition will be afforded protection if they can show they are suffering from a disability, that is:
- they are suffering from a physical or mental impairment;
- the impairment has a substantial adverse effect on the employee’s day to day activities; and
- the effects are long term, that is 12 months and beyond.
If the employee is suffering from a mental health impairment which meets the definition of a disability, they will be afforded protection from Direct Discrimination, Indirect Discrimination, Discrimination arising from their disability, Harassment, Victimisation and the Failure to make Reasonable Adjustments.
With regards to the duty to make reasonable adjustments, it is to be noted that if an employer has knowledge of an individual’s disability or could reasonably be expected to know the employee is suffering from a disability, the employer will be under a pro-active duty to prevent or remove obstacles the employee may face in undertaking their role.
One of the potentially fair grounds for dismissal is the employee’s capability of performing the work they are employed to do, and this can be by reason of ill-health.
When considering a claim for unfair dismissal a tribunal will be considering:
- Is there a potentially fair ground to dismiss?
- Did the employer act reasonably in treating ill-health as a sufficient reason for dismissal?
In assessing reasonableness in an ill-health situation, the Tribunal will have specific regard to whether:
- There has been meaningful consultation with the employee regarding their condition;
- A thorough medical investigation (to establish the nature of the illness or injury and its prognosis) has been carried out, including obtaining a medical report and
- Consideration of other options has taken place; for example, whether other steps can be undertaken to alleviate the work-related stress, for example reducing the employee’s workload.
How does this affect employers?
Stress in the workplace can be a significant issue for both the employee and the employer. It is therefore extremely important that employers are fully aware of its potential existence.
Employers need to be proactive in putting in place measures to reduce the likelihood of their employees suffering from stress and acting when they suspect any one of their employees may be suffering.