Is an employer liable for psychiatric illness caused by occupational stress, bearing in mind that according to a recent report by the Royal College of Psychiatrists, “almost one in four British adults… experience a diagnosable mental health problem at any given time”?
The answer is yes, but the threshold for employers to foresee stress-related illnesses in the workplace has been judged as a very high one.
Duties
Employers are under a direct duty to take all reasonable care to ensure that their employees are not exposed to the risk of psychological harm during the course of their employment. A breach of this obligation may give rise to a personal injury negligence claim, as well as an action for breach of contract. While it is generally understood that employers are clearly exposed to the risk of claims of this nature, there has remained a great deal of uncertainty as to the point at which liability may be said to arise.
Stress Claims
For a stress claim to succeed the employee must show:
- they have a medically recognised psychiatric illness or injury;
- their work posed a real risk of causing psychiatric illness and the employer knew (or ought to have known) that the employee was exposed to that risk;
- given the foreseeable risk, the employer failed to take reasonably practicable or adequate steps to prevent or reduce the risk of psychiatric harm to the employee;
- the employee’s psychiatric injury was caused, or materially contributed to, by the work and the employer’s breach of duty;
The case law on this goes back to 2002 and the famous case of Hatton v Sutherland, with a list of 16 key propositions. Since then, a number of additional factors have been made, including:
- Unless they are aware of any particular vulnerability, employers are entitled to assume that an employee can cope with the “normal pressures” of the job, and take employees’ actions at face value. For example, upon an employee returning to work after a period of sickness absence, without any further explanation, one can usually presume that this indicates that they are fit to resume work, although employers should still consider any adjustments necessary to their workload, or other working arrangements to assist their return.
- Once on notice of a potential stress-related illness or vulnerability, the employer must take remedial steps, e.g. sabbaticals, redistributing work and counselling. Whether it is reasonable for an employer to take these remedial steps will depend on several factors, including the size and scope of the operation, resources, and the interests of other employees.
- Allowing a willing employee to continue in their job (not dismissing or demoting them) is unlikely to result in liability.
Recent Case -Example
In a recent High Court decision, Mr Justice Davis had to determine whether or not B&Q had been in breach of a duty of care to their employee Mr Easton, a high performing Manager at B&Q, who was diagnosed with depression in May 2010 for about five months, and received medication during this period. He was an experienced Manager of large retail stores, who had handled the pressures of such work over a considerable period without experiencing any undue stress relating to his work. Mr Easton’s claim focused on issues in the store around a refurbishment, a restructure in relation to staff hours, and the handling of his return to work. He returned to work at a quieter store nearer his home, on a phased basis but was unable to successfully return and was once again re-certified as unfit for work with depression.
The Judge said that an employee, who returned to work after a period of sickness without qualification, was usually implying that he believed himself to be fit to return to the work he was doing before. He ruled that employers have “no general obligation to make searching or intrusive enquiries, and may take at face value what an employee tells him”.
A key issue was the lack of a general risk assessment. But, B&Q had a document (Staff Handbook which Mr Easton had read) about managing stress, inviting individuals to identify and notify the employer of any symptoms concerned. As he had made insufficient efforts to do this, it was concluded that, on the facts of the particular case, a wider risk assessment would have had no effect on the outcome.
His Manager was entitled to act on the basis that Mr Easton would be able to assess whether he wished to take up a particular opportunity. This can be interpreted as suggesting that just because people are depressed/stressed does not make them incapable of reasoned decisions.
On the facts of the case, Mr Easton’s claim failed at the first hurdle ‘foreseeability’ in respect of his first breakdown. This was because of his long managerial career in charge of large retail outlets, with no psychiatric history. The Judge said “The fact he was still taking medication was not determinative as to how his employment should have been handled. There are many people holding down demanding jobs who still require medication”. On the facts, given the high standard of proof required, the relapse was also not foreseeable by the employer.
Case Outcomes
The following specific lessons can be drawn from this case:
- An employer is generally entitled to take what he is told by his employee at face value, unless there is good reason to think to the contrary. There is no general obligation to make extensive enquiries of the employee, or seek permission for medical input.
- Outward signs of stress may trigger an obligation to make enquiries, and potentially to complete a risk assessment. Factors such as frequent or prolonged absence, complaints from the employee or others, or a known history of stress related illness are all relevant.
- Employers are not expected to be telepathic. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job, unless he knows of some particular problem or vulnerability. If there is a particular situation in the workplace which is causing stress or anxiety, it needs to be raised expressly with an appropriate person.
- The Courts recognise that many employees will experience periods of being overworked and stressed at work. Very few go on to suffer psychiatric illness as a result. The obligation to act arises when the indications are plain enough for a reasonable employer to realise that they should do something about it.
- Many people hold down demanding jobs with the support of medication for underlying psychiatric illnesses. The mere fact that a person remains on medication is not an indication as to how their work should be managed.
- Just because a workplace is busy, or even pressurised, does not mean that it is unusually stressful.
Learning Points – Prevention of Injury
To assist in avoiding stress amongst employees, employers should consider whether to:
- Draft a common sense Stress at Work Policy for inclusion in your Health & Safety Policy.
- Familiarise Managers with, and implement, the Health & Safety Executive’s Management Standards for Work-Related Stress.
- Provide particular stress awareness and management training on the potential dangers of prolonged occupational stress.
- Review the demands placed on employees, and conduct appropriate stress risk assessments, especially if an employee is returning to work from stress, anxiety or a depressive illness.
- Use regular performance appraisals to check on health and general well-being.
- Encourage a positive and friendly working environment.
- Be alert to the risk of relapse.
- Provide adequate training and support to all employees. This includes encouraging an open environment, so that employees can speak about stress and Managers can appropriately deal with it. Action should then be monitored and reviewed.
- Train up in-house Mental First Aiders at Work, or offer a confidential counselling service, if one is available, but should not assume that their duty of care is discharged by doing so.
Actions for Dealing with Sick Employees
If employees succumb to stress and that leads to absence from work then:
- Ensure that an employee, on their return to work following long-term sickness absence, has a formal meeting to assess what steps are going to be put in place to ease them back into work on a graduated basis.
- Monitor working hours to ensure the employee is not working excessive hours, and relieve them of some of their duties.
- Obtain independent medical advice, or use an Occupational Health provider, in connection with the management of the employee’s on-going illness, if applicable.
- If not already in use, provide independent counselling, re-distribution of work, a buddy system and flexible working.
Employees should then be monitored and reviewed regularly. Stress-related absence should be treated like any other sick-related absence, and employers should conduct back to work interviews, and consider phased returns. It must be said that, in many cases, the psychiatric illness will meet the definition of a disability under the Equality Act 2010, which means there is a legal duty to consider reasonable adjustments, many of which will have been covered above, but does require creative thought and empathy.
Much of what is said in these legal cases is common sense. Employers need to look after the mental health of their employees; it is good for business, as well as being good for the economy and society. Employees must also look after their mental health, including using established processes for raising concerns, and seeking help as required. Effective management of people involves two-way communication. In the instances where it leads to absence from work, early intervention to prevent it becoming long-term is crucial.
BackupHR™ has a variety of forms and checklists to help clients, but in all cases, early action is the key to prevention, so do not wait for month before seeking assistance; the first four weeks that an employee is away is critical in trying to get an employee back to work if possible, otherwise you could be in for the long haul.
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.
