Stress is one of the leading causes of absenteeism in the UK and mental health problems, such as stress, are now the biggest source of incapacity benefit. We look at two recent decisions which relate to stress and incapacity benefit.

Incapacity benefit  

In the recent decisions of Sheffield Forgemasters International Ltd v Fox and Telindus Ltd v Brading, the EAT held that the fact an individual receives incapacity benefit does not necessarily mean that he or she is incapable of working. Claimants can therefore recover compensation for loss of earnings for periods during which they received incapacity benefit (subject to the rule of double recovery).  

In both cases the Claimants' dismissals were held to be unfair and discriminatory. The Claimants were awarded compensation for earnings they would have received had they not been unfairly dismissed or discriminated against. This included a period during which they received incapacity benefit. The employers appealed arguing that if the Claimants were incapable of work then unless that incapability was attributable to the Respondents' unlawful conduct (which was disputed) the Claimants should not receive damages for that period.  

The EAT dismissed the appeals. The definition "incapable of work" was only a deeming provision for the purposes of the benefits system: many people who satisfy that test might still as a matter of fact be able to work. So a claimant incapable of work for the purposes of the benefit scheme might still actually be able to earn during the period of incapacity.  

Stress in the workplace  

In the decision of Dickens v O2 the Court of Appeal may have made it easier for an employee to claim against an employer for stress at work.  

Mrs Dickens worked for O2 as a Regulatory Finance Manager. She found parts of her job extremely stressful and explained her difficulties and the effect on her health to her manager. Mrs Dickens asked for a different, less stressful job, and for a six-month sabbatical to recover.  

O2 did little to help Mrs Dickens. Her manager suggested she use its counselling service and, after some delay, referred her to occupational health. Before she saw occupational health, Mrs Dickens suffered a breakdown and never returned to work. The Court of Appeal held that, once Mrs Dickens told her employer that she was having difficulty coping with her work, O2 had a duty to take action. In making its decision, the Court examined the guidance handed down in Hatton v Sutherland. The Court's application of Hatton suggests that it is easier for employees to win stress cases than previously thought. It found:  

  1.  Reasonable foreseeability: that Mrs Dickens' actions, including her complaint about stress, meant that her breakdown was reasonably foreseeable.  
  1. Breach of duty: that, given her serious symptoms and the obvious link to her work, the mere suggestion she should seek counselling was not satisfactory. More management supervision was necessary.  
  1.  Causation and apportionment: that O2 had made a material contribution to the employee's ill health and that Mrs Dickens suffered a complete breakdown because of O2's breach.  
  1. Apportionment of damages: that O2 was liable for all of Mrs Dickens' injury, despite only part of it being caused in the workplace.  

What actions should you take?  

Employers will need to be vigilant and look out for tell-tale signs of stress. They should be alert to their duty to help employees who are suffering from stress and act swiftly in responding to any complaints or behaviour which could signal that an employee is suffering from stress. Employers should actively manage such cases and consider remedial steps such as sabbaticals, redistributing work, counselling, buddying and so forth.