Thursday 17 March 2011

Oliver McCannEmployment Partner

Taylors Solicitors

Stress at Work – the Legal Slant!

13.5 million 31 days £3.7 billion (society) 38% - work cause of stress (51% money) 35% employers say stress cause for absence

(2010) Bullying and harassment

1. Statistics

ACAS/HSE: “An adverse reaction to excessive pressure or demands”

Oxford dictionary: “a state of mental or emotional strain or tension resulting from adverse or demanding circumstances”

Stress is not in fact an illness, but can trigger other illnesses, eg. heart disease, anxiety, depression, etc

2. What is Stress?

Poor productivity/performance Increased absence levels Increased turnover Temporary cover/overtime for others – increased

costs Demotivation for others Litigation

3. Effects on the Business

HSWA 1974 Management of Health and Safety at Work

Regulations 1999 Risk assessments for health hazards including

stress Take action to control identified risks Management standards – key factors considered

essential to reduce the causes of stress [cont…]

4. Stress is a Legal Health & Safety Issue

HSE prosecutions Implied contractual terms to provide safe system of

work/workplace (Johnstone v. Bloomsbury Health Authority 1991)

Implied duty to provide reasonable support (Wigan BC v. Davies 1979)

Common law duty of care not to cause psychiatric harm (Walker v. Northumberland County Council)

5. Stress is a Legal Health & Safety Issue [cont …]

Demands – workload, work pattern and work environment Control – how much influence a person has on the way they work Support – encouragement, research and guidance/development

provided by organisation and line management Roles – clearly defined for both individual and organisation Relationships – managing within the workplace, reducing conflict,

promoting positive working Changes – management and communication“A benchmark for claims?”

6. Stressors – Management Standards

Stress at work – PI claim – negligence and breach of statutory duty

Breach of contract Constructive dismissal Unfair dismissal, if dismissed on grounds of capability Discrimination claims (harassment) – Equality Act 2010 Protection from Harassment Act 1997 Disability discrimination (keeping at work)

7. What are the Potential Legal Claims?

Harassment – “unwanted conduct related to a protected characteristic” (s26 EA 2010)

Violates dignity, creates an intimidating, hostile, degrading, humiliating or offensive environment

Is it reasonable to conclude that conduct has had the effect of creating an environment as above? Perception of victim is relevant! (s26(4))

Vicariously liable but statutory defence (s109 EA 2010) Unlimited compensation – injury to feelings and PI where

psychiatric injury

8. Discrimination

Burden on employee to prove a fundamental breach

Must resign in response Implied terms – safe system of work and

reasonable support, trust and confidence Compensation limit £68,400 – basic award £12,000 12 months continuous service unless exceptions to

rule

9. Constructive Unfair Dismissal

Duty arises to take steps to prevent stress where signs (foreseeable) that an employee may suffer psychiatric illness from stressors at work are plain enough that any reasonable employer would realise it should act (Barber v. Somerset CC 2004 HL)

16 guidelines (Sutherland v. Hatton 2002 CA)[cont …]

10. PI Claims – Employers Liability

Foreseeable – absence levels, sick notes, workload, nature of job, extent of work, level of support (under-staffing)

Recognised medical condition No onus on employee to complain – duty on

employer!

11. PI Claims – Employers Liability [cont …]

Counselling service (Guideline 11 Hatton) but Daw v. Intel Corporation UK 2007 CA

Redistribution of work Sabbatical Transfer to other department Reduced working hours Extra support

12. Steps to Take to Discharge Liability

Manner of dismissal does not sound in damages – Johnson v. Unisys Ltd 2003

However, where guilty of an antecedent breach of contract (including breach of trust and confidence and other implied terms) before dismissal, then claim can be made for psychiatric damage suffered (Gogay v. Hertfordshire CC 2000)

13. Breach of Contract

1997 Act – s1: “A person must not pursue a course of conduct which amounts to (and they ought to know amounts to) harassment of another”

Cause of conduct – at least two occasions Majrowski v. Guys & St Thomas NHS Trust 2006 HL –

vicarious liability for actions of its employees where close connection between harasser’s conduct and nature of his duties

Green v. DB Group Services - £852,000 liability under Act [cont …]

14. Protection from Harassment

No definition but included under Act – wide interpretation (unjustified bills and threatening letters – Ferguson v. British Gas 2009)

Veakins v. Kier Islington Ltd 2009 CA – singling out employee without reason and making her life difficult until she had a breakdown

Only bring a civil claim if conduct would result in criminal liability under the Act (Conn v. Sunderland CC 2007)

15. Protection from Harassment [cont …]

Reduced exposure to claims Quality of working life Improved image/reputation – future recruits,

customers, tenders Easier management of future change Better employee relations and commitment Reduced staff turnover Reduced absence

16. Benefits of Tackling Stress

Effective inductions, job descriptions (purpose, key tasks, scope)

Effective communication channels and employee engagement – appraisals/return to work interviews/work plans/team meetings/committees/works councils/consultation

Job design – keep under review/manage changes Support – identify training needs, supervision – ongoing

dialogue Recruit properly – avoid mismatches, competency! Stress surveys – annual? [cont …]

17. How can Stress be Managed in the Workplace?

Flexible working – see benefits Training line managers to identify stressors and signs of stress Counselling services (Employee Assist Programmes) and

health checks Clear policies and procedures and implementation –

grievances, discipline, unacceptable behaviour, stress policy (consultation with staff/TUs)

Creating a healthy and friendly working environment Monitor rest breaks/holidays

18. How can Stress be Managed in the Workplace [cont ...]

Maximises available labour Increases productivity Reduces absenteeism/stress Increases loyalty and commitment Increases flexibility to meet change Improves access to those from under-represented

groups with skills

19. Flexible Working – Work/Life Balance!

Absence due to stress/anxiety/depression – needs sensitive care and handling

Maintain regular contact throughout Where caused by work – go the extra mile (Royal

Bank v. McAdie 2008) Sick pay? (O’Hanlon v. HMRC 2007) Timing of long term absence procedure [cont …]

20. Managing Absence Caused by Stress

Timing of health assessments Quality of health advice – OH or GP? Consultation with ill employee Return to work interviews – critical Alternative employment/phased returns –

adjustments! Be mindful of disability issues!

21. Managing Absence Caused by Stress [cont …]

Equality Act 2010 Definition – few changes to old definition Physical or mental impairment, substantial and

long term effect on ability to carry out day to day activities

Dropped requirement that must affect one or more specified capacities

Long term – 12 months or likely to be 12 months Recurring/fluctuating – continuing – less obvious

22. Disability

Direct Indirect Discrimination arising from a

disability Reasonable adjustments Objective justification

23. Disability Discrimination

Taylors SolicitorsEmployment Team

Oliver McCann – Elaine Hurn

Rawlings HouseExchange Street

BLACKBURNBB1 7JN

Ninth Floor80 Mosley StreetMANCHESTER

M2 3FX

Tel: 0844 8000 263www.taylors.com