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Archive for August, 2019

Workplace stress: the legal essentials: Part 9

Workplace Stress Part 9
Duty to provide safe system of work
Two nervous breakdowns
Walker v Northumberland County Council [1995] IRLR 35, High Court
W, a senior social worker, was employed by NCC for 17 years. He was responsible for four teams of social services fieldworkers. In 1986 he suffered a mental breakdown following a significant increase in his workload. He had unsuccessfully attempted to persuade NCC to increase staff and/or to provide guidance as to work distribution or prioritisation. He was off work for four months. When he returned to work he was offered no additional support. W suffered a second breakdown which resulted in his dismissal for permanent ill-health.
W claimed compensation for NCC for breach of its duty to take reasonable steps to avoid exposing him to a workload which endangered his health.
The decision of the High Court was as follows:
• W’s claim succeeded
• There was no logical reason why the risk of psychiatric damage should be excluded from the scope of an employer’s duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect hum from risks which were reasonably foreseeable
• NCC had been well aware that W was under extreme pressure of work
• The question was whether it ought to have foreseen that W was exposed to a risk of mental illness materially higher than that which would normally affect a senior social worker with a really heavy workload
• In respect of the second breakdown, NCC should have foreseen that there was a risk that W’s career would come to an end
• NCC should has appreciated that W was distinctly more vulnerable to psychiatric damage than he had been before the first breakdown
• In these circumstances, additional assistance should have been provided
• In not providing such assistance, NCC had been in breach of their common law duty of care
• Having regard to the size of the risk of a repetition of W’s illness, the standard of care expected of a reasonable local authority required that NCC should have taken measures to ensure that W’s workload was permanently reduced.
Note: this case is one of the most significant common law decisions dealing with workplace stress. It has been described as the origin of the liability of employers in negligence where employees suffer stress-related illnesses as a result of workplace conditions.
Reasonable steps by employer
Stress caused by overwork
Petch v Commissioners of Customs and Excise (1993) Court of Appeal, February 19
P was a senior civil servant who suffered a mental breakdown. He returned to work but was transferred to another post. Eight years later he became ill again and he was retired on medical grounds in 1986. He claimed compensation in negligence from his employer. It was argued on his behalf that the breakdown had resulted from his working conditions, in particular stress caused by overwork and that his later illness was the result of the first breakdown. At first instance, the High Court ruled that the employer was not liable and made the following points:
• P was a manic depressive. This was a genetic matter
• P had established that his breakdown was a result of conditions at his work.
P appealed to the Court of Appeal. That court made the following points:
• An employer has a duty to take reasonable care to ensure that employees’ mental health is not adversely affected by overwork or stress at work
• P’s breakdown had been caused by his working conditions, in particular overwork
• His employer could not reasonably have been expected to know that P suffered from manic depression
• P’s employer had made efforts to persuade him to take sick leave and had transferred his to a less stressful job. The transfer had been tactfully handled and was the obvious solution to an intractable problem
• In the circumstances, the employer could not be said to have been negligent
• It was clear that the duty of an employer to take care that an employee’s duties did not damage his heath extended to mental as well as to physical health
• In the present case, on the facts, the employer had not been in breach of that duty.
Reasonable care
Employee working alone
Williams v Outline Design Ltd (1999) Newport county court, August 8
W, who had been employed as an upholsterer for 30 years by OD, had worked as part of a team. All his colleagues took voluntary redundancy in 1993. W carried on with his work for OD on the understanding that he would work alone. This made him feel isolated and rejected. He claimed that the resulting stress led to his collapse at work in 1994. He sought compensation from his employers, arguing that they could and should have placed him in a team and that it was their duty to do so when they became aware that he was not happy working alone.
The county court decided the following:
• W’s claim failed
• OD had complied with their duty to take reasonable care to protect W from a reasonable risk of injury or illness
• It had not been reasonably foreseeable that the change in W’s system of work would make him ill
• There had been no indication that W was under any undue stress or was at risk of psychiatric illness
• W was a normal person. There was no evidence that he had suffered from a psychiatric illness in the past
• It had not been reasonably foreseeable that work conditions had been such as to cause psychiatric illness.


Workplace stress: the legal essentials: Part 8

Workplace Stress Part 8
Common Law: Formally Reported Cases
Duty of care
Foreseeability
Fraser v State Hospitals Board for Scotland (2000) July 11, Scottish Outer House
F, a nurse in a high security hospital, was accused of failing to carry out proper security checks. He was demoted. After six months F was diagnosed as suffering from stress and depression. He was dismissed and claimed compensation from his former employers. His claim failed on the basis that there was no reason why the employers could have bee expected to foresee the consequences of their actions.
The Court of Session made the following points:
• The duty of care owed by an employer, to take reasonable care to avoid exposing employees to the unnecessary risk of injury, extended to psychiatric damage and was not limited to physical injury
• The relationship of employer and employee created a relationship of sufficient proximity for there to be a duty of care not to cause the employee to sustain direct physical or psychiatric injury
• There was no duty to protect employees from unpleasant emotions which did not involve any form of injury at all
• It was not the duty of an employer to prevent an employee from suffering unpleasant emotions such as grief, anger, resentment or normal human conditions such as anxiety or stress
Contracts of employment
Implied terms
The common law automatically implies certain terms into contracts of employment. In relation to workplace stress, the most significant implied terms are in relation to safety at work, as follows:
• Employers have a duty to ensure that care is taken to select proper staff, to provide adequate materials and to provide a safe system of working.
• The duty of employers to take reasonable care not to injure employees’ health.
Breach of contract
Implied duty to take reasonable care
Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293, CA
J was employed as a senior house officer in the obstetrics department of University College Hospital. His contract of employment required him to work a basic 40-hour week. He was also required to be on call for up to an average of 48 hours. Therefore in some weeks he might have to work more than a total of 88 hours. The average, taken over a period, had not to exceed that total. J claimed that he had suffered stress, depression, physical exhaustion, lack of appetite and lack of sleep. His symptoms also included vomiting, feelings of desperation and suicidal tendencies. He sued his employers for failing to take care of his well-being and for a declaration that he could not lawfully be required to work such long hours.
On behalf of J, it was argued that he could not be lawfully required to work under his contract of employment for so many hours as would foreseeably injure his health.
The Court of Appeal made the following points:
• In any sphere of employment other than that of junior hospital doctors, an obligation to work 88 hours in any one week would rightly be regarded as oppressive and intolerable
• There was no technical legal reason why the employer’s discretion to call for overtime should not be exercised in conformity with the implied duty to take reasonable care not to injure their employee’s health.
Breach of Contract
Claim for psychiatric injury
Logan v Falkirk & District Royal Infirmary NHS Trust (1999) Court of Session, August 3
L was employed by F as a Grade 3 secretary. She was absent from work for a year, suffering from post-natal depression. Her employer told her that she could only return to work as a Grade 2 secretary, with a review after six months, because of concerns about her ability to carry out supervisory work.
L pursued a lengthy appeal and grievance procedure, and was appointed to a Grade 3 post six months later. This resulted in L’s depression recurring because of workplace stress. She was absent because of illness from June 1996 until April 1997. L claimed compensation from the employer for breach of contract.
The Scottish court ruled as follows:
• There was no express contractual term entitling L to return to her old job. This was a “practice” and not a binding term
• Damages for psychiatric injury could be awarded in a claim for breach of contract. There was no fixed rule that damages for psychiatric illness were irrecoverable under the law of contract
• For such damages to be awarded, there must be a causal link between the breach of contract and the psychiatric illness
• Damages would not be payable where harm suffered was too remote.


Workplace Stress Part 7

Is the relationship between employer and employee in itself necessarily stressful?

If one takes the view that the relationship between capital and labour is necessarily and inevitably exploitative, then workplace stress is an unavoidable effect of being employed. Such a view would suggest that efforts to reduce workplace stress are doomed to failure in a capitalist society. This need not mean that such efforts are not worthwhile. Almost all recent research indicates that levels of workplace stress are rising alarmingly. The two key causes of this are the increasing demands of information technology and the globalisation of employing companies. The role of the lawyer in this situation should be awareness of the current state of the law and to advise clients on how it may be applied. Lawyers cannot prevent workplace stress but they can help those who suffer from its worst effects to obtain financial compensation. Such efforts may indirectly encourage employers to take steps to deal with the problem before it reaches courts or tribunals.

Self-employment

The view referred to above fails to take into account stress levels experienced by the self-employed and those who work in family businesses or co-operatives. For example, work-related stress levels are notoriously high among GPs and lawyers. This would seem to suggest that the causes of workplace stress are not exclusively to be found in the employer-employee relationship.

It may be significant to point out that self-employed professionals do not as a rule experience conditions involving bullying, abuse or harassment. The types of stress experienced by lawyers and doctors will normally be different from those suffered by industrial workers. But the medical symptoms of work-related stress would appear to be similar, whatever the cause.

LawCare Ltd, a registered charity providing health support and advice for lawyers, made the following comments in this context:

  • The legal profession is particularly vulnerable to the behaviour of other people.
  • Stress results from responses to other people’s behaviour.
  • Stress-inducing factors include:
  • Complete reform of the rules of court
  • Downward pressure on fees
  • Increased expectations of speedy service.
  • Death from cirrhosis of the liver is twice as prevalent among lawyers than it is among the general population.
  • Lawyers suffer from depressive illness at three to four times the general rate.
  • In the USA, 60 per cent of disciplinary complaints against lawyers relate to stress, depression and alcohol abuse.

Causes of stress among self-employed professionals

  • Responsibility
  • Long working hours
  • Need to keep up to date with professional information
  • Demands of information technology
  • Bullying by senior members of professions
  • Fear of litigation against themselves.

Causes of stress among self-employed manual workers

All the above, plus:

  • Economic uncertainty
  • Conflict with customers.

Stress, anxiety and depression: latest figures

The latest HSE official statistics report includes the following:

  • 44 per cent of new and long-standing cases of work-related illness in 2017/2018 resulted from stress, anxiety or depression.
  • 57 per cent (15.4 million) of working days lost because of illness in 2017/18 were due to stress, anxiety or depression.
  • During 2017/18 there were 595,000 workers suffering from work-related stress, depression or anxiety.
  • 239,000 workers suffered from a new case of work-related stress, depression or anxiety in 2017/18.
  • Jobs with higher than average rates of stress, depression or anxiety include those in education, human health and social work, public administration and defence.
  • When questioned about the causes of stress, anxiety and depression: ** 44 per cent of workers mentioned their workload
  • ** 13 per cent cited violence, threats or bullying
  • ** 14 per cent mentioned lack of support at work
  • ** 8 per cent cited work changes
  • ** 21 per cent raised other reasons.

The HSE has repeated its statement that employers have a legal duty to protect workers from workplace stress by carrying out a risk assessment and acting on its results.

 


Workplace stress: the legal essentials: Part 6

Bullying

The dictionary definition of “bully” is a person who makes him or herself a terror to the weak or defenceless. Bullying at work is recognised as a serious health and safety problem which can cause severe mental and physical injury. Although bullying at work does not necessarily involve stress, the two concepts overlap and there are a number of decided cases which illustrate the link. Bullying may be physical or mental. The former, while complying with the popular concept of bullying, is less common than mental bullying.

Legal implications of bullying at work

None of the statutes or regulations concerning health and safety at work deal specifically with bullying. The few cases which have reached the courts have been dealt with either by the common law or by specific areas of employment law.

Some types of bullying may amount to discrimination under the Equality Act 2010. The remedy in such cases is a complaint to the employment tribunal. It is important to note that unlimited compensation may be awarded if the complaint is upheld. For example, Esther McLaughlin was awarded £234,000 compensation after bullying at work by a network of make colleagues made her feel worthless and eventually resulted in her being made redundant.

In more serious cases, the question of mental or physical injury may arise. if a victim is able to obtain medical evidence that bullying at work has caused such injury, then legal advice will normally be that proceedings should be started to obtain compensation.

Bullying is not expressly considered in any statute or regulation. Section 2 of the Health and Safety at Work, etc., Act 1974 imposes a general duty on employers to ensure the health and safety of employees. This is clearly broad enough to cover the ill-effects of bullying. There have been no reported prosecutions for bullying under the 1974 Act or regulations made under the Act. None of these provisions confer a right to compensation through the civil courts.

General criminal law

Bullying which involves a physical attack or a real threat of such an attack may amount to the criminal offence of assault. This is a common law crime of ancient origin which is defined, broadly, as any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. Technically, an assault does not involve the actual infliction of violence – a threat is sufficient. The actual infliction of violence is a battery. In practice, the term “assault” is frequently used to include a battery.

Assaults which cause serious physical harm may be prosecuted as the more serious offences of assault occasioning actual bodily harm or causing grievous bodily harm. Actual bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim. This is wide enough to cover psychiatric injury but does not include emotions such as fear, distress or panic. Grievous bodily harm means really serious harm.

Harassment

This is a technical legal term which is relevant in the following areas:

  • The Protection from Harassment Act 1997 prohibits the pursuit of a course of conduct which amounts to harassment of another. Harassment is defined by the Act as conduct which causes alarm or distress. A course of conduct must involve such conduct on at least two occasions. The Act was originally introduced to deter stalkers but it also applies to workplace harassment. Liability under the Act may be criminal and civil.
  • Employers are liable for harassment under section 40 of the Equality Act 2010. Harassment is defined by the Act as follows:

A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic and the conduct has the effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Desk rage

This is a popular, non-specific term for anger caused by workplace stress, particularly in an office environment. The following research findings have been reported:

  • One in four British workers have admitted to physically assaulting their computers. These attacks were often brought on by a flow of annoying emails.
  • One user admitted to breaking his finger when lashing out at a computer monitor. Another threw the machine down a fire escape and later gave it a decent burial in a skip.
  • The outbreak of desk rage may be caused by “inbox tyranny” – the dread of thinking that the inbox is silently filling up with emails.
  • Policies have not been developed to deal with the demands of new technology. Emails can demand an immediate response and are estimated to be among the top twenty causes of stress. Some employers have been reported to have introduced “email-free” Fridays.

The Health and Safety executive (HSE) has recommended that employees should spend between 20 and 30 minutes at a time using computers.

It is possible that workers will take revenge on their hardware in a more subtle way, for example by introducing viruses.


Part 5 of workplace stress: the legal essentials

Physical symptoms

It is generally accepted that workplace stress can result in physical symptoms, for example:

  • Cardio-vascular disease including heart disease and strokes
  • Musculo-skeletal problems
  • Psoriasis, eczema and other skin conditions
  • Anxiety, including panic attacks
  • Depression
  • Fatigue
  • Headaches and migraine
  • Acute digestive conditions
  • Insomnia
  • Irritable bowel syndrome
  • Lower resistance to viruses and bacteria
  • Compromise of immune system
  • High blood pressure
  • Tooth grinding
  • Excessive consumption of drugs including alcohol, caffeine and nicotine
  • General behavioural problems.

These physical reactions are generally recognised as being caused by the release of hormones into the bloodstream. Such hormones are designed to deal with primitive physical threats and are described as causing “fight or flight”. The immediate effect of these hormones is to increase blood pressure, pulse and breathing rates and to intensify the reaction of sensory organs. This “alarm reaction” is short-term.

In the longer term, individuals may develop coping strategies. If these are inadequate, prolonged stress may cause severe physical and emotional disorders.

The following factors have been identified as affecting individual reactions to stress:

  • Self-confidence
  • Social, family and work support systems
  • Organisational skills
  • Emotional stability
  • Lifestyle
  • Levels of expectations
  • Effectiveness of coping mechanisms
  • Physical fitness.

Most of these factors are, of course, outside the control of employers.

Treatment

  • Medication
  • Relaxation therapy
  • Psychotherapy
  • Counselling
  • Stress appraisals

It should be noted that there is a growing body of opinion that medication involving antidepressants or tranquillisers, while providing a short-term remedy and enabling a return to work, May worsen symptoms in the long-term.

Advisers and representatives need to be aware that clients who are taking regular medication may be suffering side effects including paradoxical reactions. Their behaviour may be affected by their treatment, and their symptoms may be worsened by the stress of legal proceedings.

Nervous shock

Much of the case law around the issue of psychiatric injury has used the phrase “nervous shock”. The law is complex but the general principle emerging from the cases seems to be that damages may not be recovered solely on the basis that, as a result of negligence, a claimant has suffered sensations of fear, mental distress or grief. When the nervous shock amounts to a recognisable condition, for example depression, the position is different.

“Nervous shock” includes states of mind such as fear, anger and disappointment. This should be distinguished from recognised types of mental illness, for example psychoses or neuroses. The courts have traditionally been reluctant to award compensation for mental distress as opposed to diagnosed mental illness.

Post traumatic stress disorder (PTSD)

This can be described, in general terms, as a serious anxiety disorder caused by exposure to a stress-inducing experience outside the normal range of work experience. This includes, for example, witnessing fatal accidents. The symptoms of PTSD may include re-experiencing feelings aroused by the event.

Burnout

The stage at which physical and mental exhaustion caused by prolonged stress results in revulsion from the world, and apathy.