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Archive for July, 2019

Workplace Stress: the legal essentials Part 4

TERMINOLOGY

Definition of stress

The widest definition of stress is anything which makes a person tense, angry, frustrated or angry. This clearly includes workplace pressures. Stress is said to result from a state of imbalance between the demands experienced by individuals and their capacity to adjust to those demands. Where demands are beyond a person’s capacities, then a state of stress is likely to result.

Recognised stressors

Work-related stressors which are generally accepted as triggering stress reactions include:

  • Excessive working hours
  • Night shift working
  • Boredom
  • Structural changes
  • Pressure of time
  • Contradictory instructions and confusion being passed down a chain of authority
  • Conflict with colleagues
  • Competition
  • Shock caused by discrimination, harassment or bullying
  • Increased challenges
  • Introduction of information technology
  • Anger
  • Fear
  • Disciplinary proceedings
  • Suspension
  • Dismissal
  • Resignation
  • Retirement
  • Uncertainty
  • Lack of support
  • Physical characteristics of the workplace including noise, inadequate lighting, inadequate space and poor ergonomics
  • A culture in the workplace which refuses to recognise stress
  • Travel to work: commuting.

Does stress exist?

There is a body of medical opinion which regards the word “stress” as having little medical meaning. It has been stated that the term is so wide, and covers so many conditions, that it has little useful diagnostic function. If this is so, then lawyers may ask why client after client has been diagnosed by their doctor as suffering from “work-related stress”.  A similar issue has arisen in relation to repetitive strain injury (RSI), where medical opinion has tended to conclude that the phrase is of little use. It is possible that, if the number of claims for stress compensation continues to rise, then the law of stress may develop in the same complex and difficult way as that of RSI.

The Royal College of Psychiatrists’ conference was told by a psychiatrist that:

  • Experts were cashing in on the trauma industry by encouraging people to seek compensation for ordinary events.
  • Psychiatrists, lawyers and claimants were creating a compensation culture.
  • Psychiatrists were increasingly diagnosing PTSD for everyday experiences.
  • PTSD was being wrongly diagnosed after verbal or sexual harassment and accidents instead of being applied to major events such as war.

It is worth pointing out that legal advisers acting for employees who have medical evidence that they have suffered injury, whether physical or mental, in the workplace, have a professional duty to advise that legal proceedings may be appropriate.

Effects of stress

  • Feelings of being constantly under pressure
  • Tension and inability to relax
  • Mental exhaustion
  • Constant fear
  • Irritability
  • Feeling of conflict
  • Aggression
  • Frustration
  • Inability to concentrate
  • Restlessness
  • Tearfulness
  • Feeling suspicious and/or miserable
  • Indecisiveness
  • Impulse to run away
  • Fear of imminent fainting, collapse or death
  • Fear of failure or embarrassment
  • Lack of ability to feel enjoyment or pleasure.   

Workplace Stress continued

General criminal law

There are no reported prosecutions for specific criminal offences in relation to workplace stress. In relation to bullying, there may be potential liability for assault and under the Protection from Harassment Act 1997.

Human rights

The Human Rights Act 1998 does not deal with social and economic matters. There is no right to work, no right to health and safety and no right not to be subjected to stress in the workplace.

General duty of employers

The general principle is that English courts have recognised that workplace stress can cause mental illness. They accept the principle that employers have a duty to ensure their employees’ psychological health.

An example is the case of McLoughlin v O’Brien (1982), a House of Lords decision which dealt with the recovery of compensation by a mother who had not witnessed the road accident which caused the death of one of her children and injury to her husband and other children, but had been told about the accident and taken to hospital to see the survivors. The court made the following points, which have general relevance to workplace stress:

  • The difficulty of the subject arose from the fact that answers to the questions that it raised lay in the field of psychiatric medicine.
  • the common law gave no damages for emotional distress that a normal person experienced when a loved one was killed or injured.
  • Anxiety and depression were normal human emotions.
  • An anxiety neurosis or a reactive depression might be a recognisable psychiatric illness, with or without psychosomatic symptoms.
  • The first hurdle which a claimant must surmount is that he is suffering a positive psychiatric illness and not merely grief, distress or any other normal emotion.
  • When causation is in issue, it must be determined by the judge on the basis of the medical evidence.
  • Physical injuries can give rise to organic and psychiatric disorders.
  • Acute emotional trauma can cause psychiatric illness.
  • It is only by giving effect to these insights in the developing law of negligence that we can do justice to an important, though no doubt small, class of plaintiffs, whose genuine psychiatric illnesses are caused by negligent defendants.