Dealing with stress in the workplace is a difficult issue for employers and certainly one that cannot be ignored.
As well as specific duties under health and safety legislation, employers owe their employees a common law duty to take reasonable care to safeguard their health and safety and this includes a duty to control stress levels in the workplace. Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress. It is foreseeable injury arising from an employer’s breach of duty that gives rise to a liability and foreseeability depends on what the employer knows (or ought reasonably to know) about an individual employee.
In 2002, the Court of Appeal (in Sutherland v Hatton) provided 16 points as guidance on the legal position as regards stress claims in negligence. In 2004, the House of Lords approved this general statement of the law (in Barber v Somerset County Council) with the important exception that it emphasised that an employer must be proactive in dealing with stress.
Point 2 of the guidance stated that the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable.
A recent case (Hiles v South Gloucestershire NHS Primary Care Trust) has given guidance as to when it may be reasonably foreseeable that an employee is at risk of injury from workplace stress so as to warrant action on the part of the employer. The Court found that it was not normal behaviour for an employee to burst into tears at a meeting to discuss workload. This was judged to be a sign that the claimant was under stress and that if it continued to affect her she could become ill. Her employer failed to investigate properly or to keep the situation under review and so no action was taken to protect her or to prevent the situation worsening. As a result, the claimant suffered a psychiatric breakdown and damages were awarded against the employer.
Point 11 of the Court of Appeal’s guidance stated that an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
However, no two cases are the same and each will be decided on the particular facts under consideration. The recent case of Intel Incorporation (UK) Ltd. v Daw emphasises that the 16 points are intended as guidance only. The Court of Appeal judged that Tracy Daw, a HR professional who became ill through stress at work, was entitled to damages, even though her employer did provide a counselling service. The Court was of the view that the service was insufficient to discharge the employer's duty of care towards its employee in this case as it could do little more than advise Ms Daw to see her doctor. The service could not do anything to reduce her workload. That was the responsibility of her employer. Ms Daw was able to show that her many requests for help on account of her excessive workload had failed to bring about any action on the part of Intel and the company was judged to have been negligent as her injuries were foreseeable in the circumstances.
The message to employers is clear: stress cannot be ignored and it is important to have a formal stress policy in place. Once you are aware that a problem exists, investigate and take appropriate action at once. Monitor the situation to see if remedial action is working and continue to do so until the situation is resolved.
For individual advice on stress in the workplace, please contact Maung Aye in our Canary Wharf office on 020 712 1779 or email [email protected] |
