Stress in the workplace - the legal position

Stress is a present and growing problem in the workplace. The situation is likely to get worse before it gets better. During the current financial downturn we will be seeing lower pay, longer hours, increased pressure and therefore more workers becoming stressed. An increase in stress is likely to correspond with an increase in claims for compensation.

The purpose of this article is to look at the present state of play as far as such claims are concerned.

Stress itself is difficult to define. It is far more vague than say hearing loss or a broken leg. It is defined on the HSE Website as follows: "the adverse reaction people have to excessive pressure or other types of demands placed on them".

Not surprisingly this area of law has seen a number of cases over the last few years.

These have clarified the issues whilst also restricting the number of cases which can be successfully pursued.

Far and away the most important case was that in 2002 known as Sutherland v Hatton. This was in fact a collection of cases brought before the Court of Appeal. The whole idea was to give the court the opportunity to clarify when such claims can and cannot be successfully brought. The lead Judgment from Lady Justice Hale (as she then was) has become the key point of reference. In her Judgment she set out 16 points which have become known as the threshold criteria.

We don't have the space here to analyse all 16! But here is a general summary.

In the second of the criteria she says that the question is whether this kind of harm to this particularly employee was reasonably foreseeable. This harm would comprise an injury to health (as distinct from occupational stress) which is attributable to stress at work - as distinct from other factors. She went on to say that foreseeability depends on what an employer knows or should know about the individual employee.

She said: "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". She later said: "the employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisors".

This issue of foreseeability has become the dominating issue in stress cases. In the light of the court's guidelines the following examples might be of assistance.

Bob is a dedicated worker. He is a perfectionist. He works long hours and regularly takes work home. He never complains and has never had a day off work. Because he is such a dedicated worker, Management consistently increases his work load and he continues to produce excellent results. Bob then suddenly breaks down and says that he cannot take any more. He suffers a major breakdown. It is unlikely that Bob would be able to pursue a successful claim. His employers would be able to show that they knew nothing about him which would make it reasonably foreseeable that he would become ill. He never said anything. There were no other warning signs which might establish foreseeability.

Carol has worked for her employers for 10 years and has hardly ever had a day off sick. Carol's job involves chasing unpaid accounts which seems to have doubled in number recently. She therefore agrees to do significant amounts of overtime. She then suddenly begins to take 'sick' days. This is often a Monday. No detailed reason is given but she then mentions to her Supervisor that she has in fact been suffering panic attacks after the weekend. After one such day off she does not in fact return to work. Carol could possibly have a case. In the Hatton case, Lady Justice Hale mentions that there could be warning signs if there are frequent or prolonged absences which are uncharacteristic "Is there reason to think that these are attributable to stress at work?" In view of her previous attendance record and the conversation with the Supervisor it could well be that she would have a justifiable claim.

Ted is a Manager of a Public House in a deprived area. He works long hours and has a difficult clientele. There have been incidences of violence and vandalism which have put him under significant pressure. He asks his employers to consider moving him to an area which is less demanding. He says that it is all getting a bit much and he has been to see his doctor. He suffers a heart attack. This case is likely to fail. The Court would look at what was the cause of the stress he was suffering. It has not been caused by anything which his employers have failed to do but rather by the demands of the job i.e. working in a difficult location. The fact that he has been to see his doctor is probably not sufficient.

Alice has a long history of anxiety and depression. She has returned to work having been absent with stress for about 6 months. Her absence was caused by a combination of overwork and lack of supervision. When she returns to work she goes back into the same job with the same volume of work. She is promised supervision but after a month she is still waiting for this to begin. She goes off again with stress and suffers a major psychiatric illness as a consequence of which she is never able to return to work. This case would appear to press all the buttons! There is clear foreseeability because of her previous illness. There is clear breach of duty by the employers who know what caused the illness and failed to take any steps to avoid the foreseeable risk.

It will be seen therefore that there is often a subtle dividing line between success and failure. The message for employees is that if you are feeling stressed, tell somebody. Message for employers is to listen to what you are being told!

A final word now about the Protection from Harassment Act 1997. This was originally known as the "Stalker's Act". In a case called Majrowski v Guys & St Thomas' Trust in 2006 the House of Lords decided that Act did apply in the work place. If an employee is victim of a course of conduct which constitutes harassment under that Act then the employers are vicariously liable for their employees' actions. What is most important to note is that the test of foreseeability does not apply under the Harassment Act. A Claimant simply has to show that she/he has been subjected to a course of conduct and has suffered injury as a result. It is necessary to show a "course of conduct" what this means is that there has to be more than a single isolated incident.

It was initially thought that this would lead to a significant increase in the number of stress related cases particularly in the context of bullying and harassment. We have however had some clarification from the court in a case known as Conn v Sunderland City Council. The conduct complained of has to be of such a nature as would justify a criminal conviction. So simply being ignored by a work colleague, being overlooked for promotion or even being subjected to excessive demands is unlikely to constitute harassment. Basil Fawlty poking Manuel in the eye could well do - provided it happened more than once. This is likely to be an area of law which will continue to develop over coming months and years. Watch this space!