Articles

Published by: Nicola Smyrl

When does workplace stress become a psychiatric injury?

Research shows that employee stress levels are rising. Surveys conducted by the Chartered Institute of Personnel and Development and the Health and Safety Executive indicate that stress is the most common cause of long term and short term sickness absence.  Given the negative impact that employee stress can have on businesses, employers are well advised to consider how to identify and manage work related stress and to be aware of the risks of failing to do so.

What is stress?

The HSE defines stress as the “adverse reaction people have to excessive pressures or other types of demand placed on them”.  Stress is a reaction and will not normally amount to an illness in itself although it may be a trigger for other physical and mental health conditions. 

Stress in the workplace can be caused by various factors but common examples include excessive workload, mishandled disciplinary procedures, bullying and failings of management.

The key considerations

All employers have a duty of care towards their staff which includes obligations to provide staff with a healthy and safe place of work.  Where an employee can show that:

  • the employer has breached that duty of care (for example by requiring an employee to work excessive hours or bullying );
  • that the breach has caused the employee an injury (such as a breakdown or depression); and
  • that the injury was reasonably foreseeable,

the employee may be entitled to compensation.  Compensation will be awarded to put the employee in the same position as they would have been had the injury not occurred.  Such claims can be extremely costly.  It is increasingly common for employees to pursue personal injury claims against their employers based on work place stress.

In such cases, whilst the employee must establish that workplace stress has caused their injury, most stress claims turn on whether the type of injury sustained by the employee was “reasonably foreseeable” by the employer.  In answering this question regard must be had to the characteristics of the particular employee and the particular demands placed on them by the employer. An objective standard will not be applied and different considerations will need to be given depending on the circumstances which caused the employee to become stressed.

Whilst employers are entitled to assume that an employee can cope with the normal pressures of their job (unless they are aware of any particular vulnerability), employers should be vigilant in looking out for the tell-tale signs of stress.  Signs may include declining or inconsistent work performance, increased time at work, withdrawal from others in the workplace, poor attendance and aggressive or defensive behaviours.  Warnings signs from employees will play a fundamental role in establishing whether an injury was reasonably foreseeable. Once an employer is on notice of the adverse effects of stress, the consequences are more foreseeable and the employer is obliged to take remedial action.

One case where the injury sustained by the employee was reasonably foreseeable was Barber vs Somerset Council.  Mr Barber was a school teacher who took early retirement due to a mental breakdown.  He claimed that his employer had breached their duty of care as his breakdown was reasonably foreseeable due to his heavy workload.  Key to the finding that Mr Barber’s injury was reasonably foreseeable was the fact that Mr Barber had taken 3 weeks off work due to stress and depression and had subsequently raised concerns about his workload.  The House of Lords considered that these circumstances triggered the duty to take some action.  The Court stated that Mr Barber’s workload should have been reduced, his condition should have been monitored and that further action should have been taken if matters did not improve.

Where an employer is on notice that an employee is potentially suffering from a stress related illness, consideration may also need to be given to whether the employee is “disabled” and whether the employer has a duty to make reasonable adjustments under the Equality Act 2010.

Practical considerations

Businesses should consider:

  • Carrying out appropriate risk assessments in relation to stress;
  • Monitoring factors that suggest that stress is an issue such as attendance, staff turnover, poor performance and conflict between staff.
  • Implementing a stress policy.  The policy should state that stress is a serious issue, give guidance as to how to deal with the effects of stress and how to raise concerns about stress;
  • Using return to work interviews after sickness absence and performance appraisals  to identify any stress related reasons for absence or poor performance;
  • Training managers to recognise situations likely to cause stress, identify stressed employees and manage stress; and
  • Appropriate planning for formal processes such as disciplinary proceedings or reorganisations.

Taylor Walton is running a series of free workshops focusing on these issues during January 2016 – please see our website for more details.