Stress related injury claims against an employer

Employers have a duty of care to provide a safe place of work, safe plant and equipment, a safe system of work and reasonably competent fellow employees. It may be a breach of the duty of care to cause an employee psychiatric damage by reason of the volume or character of the work which an employee is required to perform. To succeed in a claim for personal injury an employee will need to establish fault (negligence) by his or her employer.

Essential requirements

The following must be proved in order to establish negligence on the part of the employer:-

• That there was a breach of the duty of care.
  
  
• That the breach caused an injury.
  
  
• That the employer should reasonably have foreseen the risk of injury from the breach of the duty of care;

Breach of Duty

An employer must do all that is reasonably practicable to eliminate or minimize the risk of injury to an employee. Employers should therefore consider whether the employee is likely to be subject to stress at work (including consideration of the hours worked and the quantity and quality of work), whether the employee has suitable qualifications, experience and capability for the job and whether the employee has been provided with appropriate training, support and guidance. An employer should carry out a risk assessment which should consider and specifically address the issue of stress and identify any potential hazards.

An employer who fails to take all reasonably practicable steps to minimize the risk of injury may be liable to an employee who suffers stress as a consequence of that failure.

An employer is only likely to be in breach of duty if he fails to take such steps as are reasonable in the circumstances bearing in mind the magnitude of the risk of injury occurring, the gravity of the injury which may occur, the costs of and practicability of preventing injury and the justification for running the risk. In this respect, the size and scope of the employer’s business, its resources and the demands it faces are of relevance in deciding what is reasonable. The interests of other employees and the need to treat them fairly, for example, in any re-distribution of duties should be considered. The provision of a confidential advice service with referral to appropriate counselling or treatment services is likely to be of considerable benefit to an employer in disputing that he was in breach of duty.

If the only reasonable and effective step would be to dismiss or demote an employee an employer will not be in breach of duty in allowing an employee who wishes to continue in employment to do so.

Causation

The stress complained of must have been caused by the system of work or the work must have made a material contribution to the employee’s condition. The stress must have caused a recognized psychiatric or physical condition. Employers and their insurers will often argue that the stress complained of may not have a work origin e.g. that stress may have been caused by death in the family, relationship problems or illness. There is likely to be a need to consider the employee’s medical records including G.P. notes and Hospital notes in order that appropriate medical opinion can be given as to the cause of the condition and the likelihood of the condition arising in any event irrespective of problems at work. If there is no history of psychiatric illness arising as a direct consequence of the employment an employee is not likely to succeed in pursuing a stress claim.

Where the harm suffered has more than one cause the employer will only be responsible for that proportion of the harm suffered attributable to the wrong doing of the employer unless it is impossible to apportion the harm.

Foreseeability

An employer has a duty to take reasonable steps to avoid a foreseeable risk of injury to an employee. The question for determination is whether this kind of harm to this particular employee was reasonably foreseeable which has two considerations :-

i) An injury to health (as distinct from occupational stress) which is attributable to stress at work (as distinct from other factors).

ii) If the employer knows that an employee is not of reasonable fortitude (e.g. because of a previous stress related problem) the employer must consider whether the stress created by work would create a foreseeable injury to health for that employee.

Generally, foreseeability depends upon what the employer knows, or ought reasonably to know, about that employee. Mental disorder is harder to foresee than physical injury but may be easier to foresee in a known individual. An employer is usually entitled to assume that the employee can withstand the normal pressure of the job unless he knows of some particular problem or vulnerability.

The important question as regards foreseeability may be from what date did the employer actually know, or should have known, that the work complained of gave risk to an injury to health to the employee and that precautions to guard against that risk could and should have been taken.

There are no types of occupation considered by Courts to be so stressful as to endanger the mental health of those engaged in such particular forms of employment.

Time limits

Any action claiming damages for negligence (including a stress at work personal injury claim) requires the issue of Court proceedings within three years from the date any specific incident causing the stress occurred or where an employee has suffered stress over a number of years it may be that the three year time period will not commence until a medical diagnosis has been made. This is a complicated issue and appropriate legal advice should be taken at an early stage.

Employment law claims

Constructive Dismissal

A refusal or neglect by an employer to assist an employee who cannot cope with work or who is suffering from stress related symptoms which are being exacerbated by work may amount to a fundamental breach of the implied contractual term of trust and confidence. This may justify an employee resigning and claiming unfair dismissal.

Automatically unfair dismissal

An employee has the right not to be dismissed if he or she complains about, or refuses to work in, unsafe conditions. If an employer dismisses an employee for complaining about work conditions giving rise to stress, the dismissal is likely to be automatically unfair since it is connected with raising a Health & Safety issue.

Sex Discrimination Act 1975 and Race Relations Act 1976

An employee subject to discrimination or harassment on the grounds of sex or race may have a stress related claim where the harassment causes a stress related illness.

Disability Discrimination Act 1995

Stress related illness can be a disability within the meaning of the Disability Discrimination Act if the employee has a clinically recognized condition. For the purposes of the Act the disability must be a physical or mental impairment which has a substantial and long term adverse effect on the employee’s ability to carry out day to day activities. The effect of an impairment will generally be regarded as “long term” if its effect has lasted or is likely to last for at least twelve months.

A Code of Practice exists which is admissible in evidence in any Court or Employment Tribunal and where the provisions of the Code appear relevant they must be taken into account.

The Act makes it unlawful to discriminate against an employee on the ground that he or she is disabled and discrimination occurs where an employer :

• Treats a disabled person less favourably
  
  
• Does not comply with a duty imposed upon him to make a reasonable adjustment to, for example, the work place itself or to the terms and conditions of employment, such as hours of work.

An employer has a defence of “justification” providing it is material to the particular circumstances of the case and substantial.

The Health & Safety Executive have recently published a Manager’s Guide to tackling stress at work and advise employers to follow five steps :-

• Identify the hazards
  
  
• Decide who could be harmed and how
  
  
• Evaluate the risk
  
  
• Record significant findings
  
  
• Review the assessment at regular intervals.

An employer cannot, therefore, rely on ignorance. An employer has a duty to take a proactive approach towards preventing work related stress and should, for example :-

• Introduce a clear policy on stress at work.
  
  
• Introduce anti bullying and harassment policies.
  
  
• Carry out regular staff monitoring and take seriously complaints about work situations.
  
  
• Consider appropriate adjustments to the working environment.

Disclaimer

Please note that this information is given on the basis that no liability is accepted for any errors or fact or opinion it may contain. Professional advice should always be obtained before applying the information to particular circumstances. Carter Hodge do not accept legal responsibility for the accuracy of any particular statement.