The Health and Safety Executive (HSE) defines stress as “an adverse reaction people have to excessive pressure or other types of demands placed on them”. In an ever-more-demanding world, and particularly at a time of recession, stress is becoming a very serious issue for UK businesses. Not only is the regulation of stress climbing up the regulator’s agenda but with substantial compensation claims on the rise, this is an area of health and safety that employers can no longer afford to ignore.
Stress is the second biggest cause of workplace absence and, in 2007/8 alone, 13,539,000 working days were lost to stress. In Europe, a third of workers complain that they are affected by stress, and in the UK, 1 in 7 people admit being under high levels of stress at work.
In response to statistics such as this, the HSE earlier this year stepped up a campaign to help businesses reduce stress in the workplace, as well as to recognise the practices, structures and attitudes that may cause stress within their organisations. The HSE launched a new stress website in February 2009, which outlines the key causes of stress, such as over-demanding, or under-demanding workloads and lack of support at work, as well as identifying the main signs of stress. It also sent a letter to every chief executive and managing director of the largest firms in the country to highlight the issue of stress in the workplace, urging companies to do more to spot possible stress-related problems early before they adversely affect productivity and profits, and warning that the HSE will be ramping up regulation in this area.
NEGLIGENCE AND THE HATTON GUIDELINES
An employee may be able to claim against an employer under the tort of negligence if he can prove that:
- The employer owes him a duty of care. Due to the nature of employer-employee relationships, this is normally very easy to prove.
- Where the employee has suffered a reasonably foreseeable physical or psychiatric injury (as opposed to the signs of stress), that the employer has breached that duty of care. The standard, which an employer must reach, is that of a reasonable and prudent employer, taking positive thought for the safety of his workers, in light of what he knows or ought to know. Where there is developing knowledge, he must keep abreast of it and not be too slow to apply it.
- the employee has suffered a physical (this can include a heart attack brought on by workplace stress) or psychiatric injury; and
- the injury was reasonably foreseeable. A number of principles were laid down by the Court of Appeal in the case of Hatton v Sutherland (2002) including:
- that the employee can withstand the normal pressures of the job unless he knows of something specific about the job, the employee, or both which would make him consider the issue of psychiatric injury; and
- that an employer who offers a confidential advice service is unlikely to be found in breach of duty.
The House of Lords subsequently endorsed these principles Barber v Somerset County Council (2004), although the judges stressed that the Hatton guidelines were not set in stone. They should be applied carefully to the facts of each case. In particular, it was confirmed that once the employee raised stress as an issue, the situation must be kept under review so that the employer can take immediate action if necessary.
Between 2003 and 2007, the Hatton guidelines were applied in 11 stress-related cases in the Court of Appeal, however, more recently there has been a shift in emphasis in the test for reasonable foreseeability, breach and causation and some of the principles set down in Hatton have been diluted. Employers are now seen as being responsible for taking the initiative where employees report occupational stress.
LIABILITY ON EMPLOYER? THE DICKINS DAW AND PATERSON EFFECT
Recently, the cases of Daw v Intel Corp (2007), Dickins v O2 (2008), Paterson v Surrey Police Authority (2008) have provided employers with some additional guidelines:
In Daw, the employee had drawn her employer’s attention to her stress in a series of memoranda. The Court of Appeal held that the “indications of impending harm to health were plain enough for the [employer] to realise that immediate action was required.” This was similar to the position in Dickins, where the claimant had made her employer aware over a period of many months that she was under ‘palpable stress’ and was ‘about to crack up’. The Court decided that this was quite strong enough evidence of the likelihood of the claimant’s impending illness. Once the employee makes clear to the manager that there is a chance of stress-related injury occurring, some responsibility for the claimant’s condition passes to the employer. Dickins had not been signed off with an illness by her GP, but this did not mean that she was not ill. The Court said that O2 should have sent the employee home while the case was investigated by occupational health.
While many cases have confirmed that discussions with employers should be formal and noted, the case of Paterson said that informal discussions are sufficient to meet the employer’s duty provided that they come to the same outcome as a formal assessment would have done.
One of the largest changes to the employer’s liability was in relation to the point in Hatton concerning the availability of counselling services. The Court in Daw and Dickins said that the existence of counselling, or a referral by the employer to such a service, would not alleviate the employer’s liability. The judge in Dickins stated that “given the situation where the respondent was describing severe symptoms, alleging they were due to stress at work and was warning that she did not know how long she could carry on, I do not think that a mere suggestion that she should seek counselling could be regarded as an adequate response”. In cases such as these, only management intervention would deal with the root problems that need to be addressed.
Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) introduced a duty on the employer to carry out regular assessments of the risks to the health and safety of their employees, to note if risks arise and identify how they impact on those people affected. As a result, employers must be more proactive in their approach to managing stress. The HSE has produced a set of Management Standards (see below), which outline that companies must create a culture where stress is properly managed, combating the risks at source, rather than applying palliative measures after the event.
DAMAGES AND APPORTIONMENT
In negligence claims, employers must be wary of breaching their duties for fear of large payouts. Damages in such claims are not limited and can include compensation for pain, suffering and loss of amenity, as well as past and future earnings. In Dickins, the employee received over £100,000 and in Green v DB Group Services (UK) Limited (2006), damages totaled £800,000, mostly in respect of future loss of earnings. However, damages will only be assessed to the point that an employee would have developed a stress-related illness in any event, regardless of the employer’s breach of duty. In Daw, damages were reduced by a third, as there was a chance that the claimant would still have suffered from depression in the future even if her workload had been reduced.
The Court in Hatton had held that once evidence has shown that the defendant’s actions made a ‘material contribution’ to the claimant’s injury, the damages awarded to the claimant should be apportioned to reflect the impact of non-work-related stress. The Court in Dickins disagreed with this approach. The judge stated that where a defendant has made a ‘material contribution’ and “where the injury to which that has lead is indivisible [from any other tortious cause], it will be inappropriate simply to apportion the damages across the board.” The claimant would be entitled to recover all damages. If the claimant was psychiatrically vulnerable and was at risk of suffering a breakdown in the future in any case, the approach should be instead to reduce damages awarded for future loss of earnings.
There are a number of practical steps that employers can take to help to prevent such claims:
- Carry out regular risk assessments to identify risks to your employees’ health and safety,consider any anonymous work-life balance questionnaire.
- Evaluate the risks, record your findings and review the assessments at appropriate intervals.
- Make sure that managers are properly trained to manage potential sources of work-related stress.
- Consider implementing a stress management policy so employers and managers are aware of what to do and how to report work-related stress issues.
- Take reasonable steps to minimise the risks and make sure that any problems are combated quickly and at source.
- Monitor any inherent risks and protective measures, and provide surveillance for any identified risks.
FOR FURTHER INFORMATION THE FOLLOWING RESOURCES ARE HELPFUL
The HSE has a dedicated website on stress in the workplace http://www.hse.gov.uk/stress.
HSE letter sent to employers
The HSE’s management standards and the government services website, DirectGov, provide more detailed assistance for employers and employees: http://www.hse.gov.uk/stress/standards/index.htm http://www.direct.gov.uk/en/Employment/HealthAndSafetyAtWork/DG_10026604
The Chartered Institute of Personnel and Development have recently issued guidance on workplace stress