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It’s difficult to define stress as such, as it can mean different things to different people. In general terms, however, it’s the reaction that someone has to excessive pressure or harassment at work.
It can obviously take different forms, but the key issue is that the employer’s behaviour must be extreme. That is why stress claims are so difficult to win.
In essence, the fact that someone is likely to suffer from a psychiatric illness as a result of their job has to be clearly foreseeable to the employer.
Take the 1995 landmark case of Walker v Northumberland County Council, in which Mr Walker had two nervous breakdowns. As the employer had been deemed to have been “put on notice” after the first breakdown, Mr Walker’s second breakdown was therefore entirely foreseeable as they did not provide the extra help they promised him.
Since then, there have been a number of notable cases (such as Hatton v Sutherland; and Barber v Somerset County Council) which make clear the extent of the onus on claimants to prove their claim.
In a stress case, you have to prove, first of all, that you have a psychiatric illness (the injury). Then you have to show that:
• Your work posed a real risk of causing the illness and your
employer knew (or ought to have known) that you were exposed
to that risk
• Given the foreseeable risk, the court will then ask whether your
employer did everything that was reasonable in the circumstances
to keep you safe from harm. This includes looking at how they
dealt with any risks they could reasonably have foreseen
• You then have to show “causation”. In other words, that the harm
you suffered was caused by your work and your employer’s breach
of duty to you
You have to prove that it was reasonably foreseeable to your employer that you would sustain a psychiatric injury because of stress at work. The courts have said that foreseeability depends on what the employer knew or ought to have known about the pressure on the individual employee at the time.
That doesn’t mean they have to interrogate you as to your state of health all the time, but if there are obvious things happening (for instance, you keep bursting into tears), then the House of Lords said that they would expect a reasonable employer to notice that there might be a problem.
Once an employer has become aware that you seem to be struggling, they must investigate the problem and find out what they can do to resolve it. This will depend, to some extent, on the size of the employer and the resources available to them.
In particular, the Court of Appeal said in Hatton v Sutherland that an employer who offers a confidential counselling advice service is unlikely to be in breach of their duty to you. However, another Court of Appeal has just clarified that that does not mean they are a “panacea” in all cases and the fact that there is a counselling service will not correct a breach of duty of care.
You also have to show that it was more likely than not that your employer was to blame as a result of a breach of their duty to you. This is called the “balance of probabilities.”
You can prove fault either by showing that your employer breached a “common law duty” (in other words, law made by judges) or a statutory duty (an actual law).
The common law says that your employer is responsible for your general safety while you are at work. In addition, there are various statutes that employers have to comply with, as follows:
• The Health and Safety at Work Act 1974 states that employers
have a duty to ensure that, as far as is reasonably practicable, their
workplaces are safe and healthy. They also have to take measures to
control any risks that they identify
• The Management of Health and Safety at Work Regulations 1999
states that employers must assess the level of risk in the workplace
and base all measures for controlling risk on this assessment
Employees can also rely on the following statutes if they want to bring
a claim of stress at work, depending on the circumstances
• Disability Discrimination Act 1995 - stress may turn out to be the
sign of an underlying condition that would amount to a disability.
Under the Act, employers are required to make reasonable
adjustments to the workplace, such as reducing the employee’s
workload or pressures on an employee who is under stress
• Discrimination legislation - if someone is being treated unfairly by,
say, a line manager who treats female staff in an overbearing and
dominating way, they may be able to argue that such behaviour
amounts to sex discrimination
As a result of two recent decisions, it seems that the Protection from Harassment Act (PHA) 1997 may offer a better route for potential claimants suffering from stress.
In Majrowski v Guy’s and St Thomas’s NHS Trust, the House of Lords said that employees can use the PHA 1997 to sue their employers for damages for workplace harassment. Likewise, the High Court in Green v DB Group Services (UK) Ltd said that employers could be liable for the same acts of bullying resulting in psychiatric injury under both the common law and the PHA.
However, to come within the Act, the conduct you complain about must:
• Still be serious, capable of amounting to a criminal act
• Have occurred on more than one occasion
• Not simply amount to a disagreement between two work colleagues
• Represent an intense connection between the conduct and the job
of work
• Not be considered to be reasonable and proper criticism of poor performance
Mrs Wheeldon worked part time as a cashier. Her workload increased dramatically when work was transferred to her branch as a result of the closure of another local office. She complained to her manager from time to time about the pressure she was under, but nothing changed.
Following two depressive episodes in 1999, the bank appointed a psychiatrist to review her condition. The psychiatrist told the bank that her mental health would continue to deteriorate if her duties were not reduced. Neither her hours nor her duties changed and her health deteriorated. The Court of Appeal said that the bank’s failure to act allowed her depression to “flourish”. It criticised the line manager for putting the onus on Mrs Wheeldon to come to him with her problems. Instead, it said that: “a reasonable employer... knowing what the bank knew, would have taken Mrs Wheeldon aside and had a full discussion with her about what could be done or... what could not be done.”
Although it is very unusual for a part time employee to succeed in a stress-related claim, the harm she suffered was not just reasonably foreseeable, but had in fact, been foreseen. The bank was therefore in breach of its duty of care to her as it had not talked to her about any action it might take to reduce the stress of her work.
Linda Millband the solicitor at Thompson's who acted for Mrs Wheeldon said “this was a tremendous result for the claimant as it is very rare to succeed in a case involving a part time worker. The case was strenuously defended and without the support of her union it is unlikely that she would have ever been able to bring it.”
Although it is very unusual for a part time employee to succeed in a stress-related claim, the harm she suffered was not just reasonably foreseeable, but had in fact, been foreseen. The bank was therefore in breach of its duty of care to her as it had not talked to her about any action it might take to reduce the stress of her work.
Linda Millband the solicitor at Thompsons who acted for Mrs Wheeldon said “this was a tremendous result for the claimant as it is very rare to succeed in a case involving a part time worker. The case was strenuously defended and without the support of her union it is unlikely that she would have ever been able to bring it.”