Do employers have duty to reduce
workplace stress?
With depression and anxiety now accounting for more incapacity
benefit claims than physical ailments, Veronica Cowan talks to
Raymond Jeffers, chairman of the Employment Lawyers Association and
a partner at Linklaters, about employers' responsibilities to reduce
stress in the workplace...
Psychiatric
problems have overtaken physical ailments as the chief cause of
long-term sickness absence in Britain, with depression and anxiety
accounting for more claims for incapacity benefit than physical
problems. Writers in the British Medical Journal say claims
for back pain have fallen while surveys have shown a doubling in the
numbers of people claiming for stress caused or made worse by work.
Reducing the cost is a Government priority, but what duties do
employers have to minimise workplace stress? “The legal duty on
businesses is broadly expressed, ” observes Raymond Jeffers, a
partner at Linklaters. “The basic duty is to take reasonable care
for the safety of employees so a safe place, safe equipment and a
safe system of working needs to be in place.“ He adds: “Many people
think it is easy to win a case, but it is actually exceptional for a
stress at work case to succeed. It has to be shown that the employer
knew there was a risk of psychiatric injury and failed to take
reasonable steps to prevent it.“
That the courts are acting to stem the flow of cases seems implicit
in comments by judges in the Court of Appeal in January, in
Hartman and others [2005]. They were critical of the time and
expense involved, both of which they said were disproportionate to
the issues and the value of the claims, and warned that care must be
taken when preparing for trial to isolate the issues and ensure
expenditure on costs was proportionate to what was truly at stake.
Scott Baker LJ said it was apparent that, despite the appellate
court decisions in Hatton, Sutherland and Barber,
trial judges were still finding it difficult to apply the
appropriate principles. He stressed that it was foreseeable injury
flowing from the employer's breach of duty that gave rise to
liability, and it did not follow that, just because a claimant
suffered stress at work and the employer was in breach of duty, that
the claimant could establish a claim for negligence. Noting that
many people suffer breakdowns and depressive illnesses, a
significant proportion of which could be blamed on the stresses and
strains of work, he said that unless there was a real risk of
breakdown - which the employer ought reasonably to have foreseen and
averted - there could be no liability.
Depression and anxiety are mainly treated by GPs and there is a
shortage of psychological counselling and support services. Do
employers have a duty to provide occupational health services, and
from a legal perspective does providing such a service help to
defeat claims? Jeffers comments that having an occupational health
service could help. “Hale LJ said in Hatton that an employer
who offered a confidential service with referral to an appropriate
counselling or treatment service was unlikely to be found in breach
of duty. But generally there was no positive obligation to have one
unless it could be said in a particular case that injury was
reasonably foreseeable and it was a step the employer should have
taken”, he says.
Making employees aware of the availability of the service is
important, Jeffers points out, and it is up to the employee whether
to use it or not. However, if the employee is doing a job that the
employer recognises carries a particular risk, then it may have to
proactively approach the employee. In Melville v The Home Office
[2005], Melville's duties at a prison included recovering bodies of
prisoners who had committed suicide. He had attended eight and on
the last occasion helped cut down the body, remove a ligature and
attempt revival. He developed a stress-related illness but received
no support from the service devised for that role. The Court of
Appeal held that, in making the service available, the employer
foresaw that employees exposed to particular traumatic incidents
might suffer psychiatric injury. It was entitled to assume the
employee was up to the normal pressures of the job, unless there was
something about the job or the employee or the combination of the
two that meant they had to think harder. Here there was something
specific about the job that caused the employer to devise a system
for dealing with the risk that was foreseen. It failed to implement
its own system, and was liable.
However, Jeffers observed that Melville involved a specific
risk, and continued: “That is different to the employee doing a
typical white-collar job where generally psychiatric injury is not
foreseeable. As was noted in Hatton, it is not the job itself
but the interaction between the individual and the job that causes
the harm. The employer has to take reasonably practicable steps to
prevent foreseeable stress to this particular employee. Whether a
person should be regarded as vulnerable depends on all the
circumstances. The more robust the person appears to the outside
world the less likely psychiatric injury is foreseeable”.
What is reasonably foreseeable and what steps it is reasonable to
take changes with time and knowledge, and once particular practices
become current it can increase the expectation of what is
reasonable. Jeffers explained: “It is important to remember that
having regard for what is reasonable for an employer to do is not
static. For example, if counselling is adopted by a number of
employers it becomes more difficult to argue it is not reasonable to
expect an employer to do this. In that sense the more proactive
employers are the higher the standard of reasonable care becomes".
(14/04/05)
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Case annotations in other services:-
Hartman and others v South Essex Mental Health and Community Care
NHS Trust [2005] EWCA Civ 6, [2005] All ER (D) 141 (Jan); Hatton v
Sutherland [2002] 2 All ER 1, [2002] 1 IRLR 263, [2002] All ER (D)
53 (Feb); Melville v The Home Office [2005] EWCA 77
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