The incidence of stress related illness caused by work has steadily risen in recent years; the PCS legal and personal case unit receives an increasing number of claim forms for work-related stress.
These claims are often difficult to take forward because of the general principle that an employer is entitled to assume that an employee can cope with the normal pressures of work unless the employer is otherwise notified.
What you need to make a stress claim
For a stress claim to succeed the employee must show:
- they have a medically recognised psychiatric illness or injury
- their work posed a real risk of causing psychiatric illness and the employer knew (or ought to have known) that the employee was exposed to that risk
- given the foreseeable risk, the employer failed to take reasonably practicable or adequate steps to prevent or reduce the risk of psychiatric harm to the employee
- the employee's psychiatric injury was caused, or materially contributed to, by the work and the employer's breach of duty.
In addition to the above, stress claims have to be considered in relation to the criteria set down in the court of appeal judgement in February 2002 which overturned three previously successful work-related stress cases.
The criteria in that judgement are the benchmark upon which solicitors will measure the prospects of any claim.
Summary of the key points on stress at work cases taken from the Court of Appeal’s judgement on 5 February 2002
1. There are no special control mechanisms apply to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply.
2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. This has two components:
a) an injury to health (as distinct from occupational stress) which
b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large.
An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
4. The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
5. Factors likely to be relevant in answering the threshold question include:
a) The nature and extent of the work done by the employee. Is the workload much greater than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee?
Are the demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs, or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
b) Signs from the employee of impending harm to health. Has she/he a particular problem or vulnerability? Has she/he already suffered from illness attributable to stress at work?
Have there recently been frequent or prolonged absences which are uncharacteristic of her/him? Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from her/him or others?
6. The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.
7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
8. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.
9. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.
10. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
11. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
12. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
13. In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
14. The claimant must show that that breach of duty has caused or materially contributed to the hardship suffered. It is not enough to show that occupational stress has caused the harm.
15. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the employer to raise the question of apportionment.
16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event
You must keep your employer informed
The court of appeal judgement placed the onus on the employee to have made her/his problems known to the employer.
In May 2004 the House of Lords ruled on an appeal lodged on behalf of one of the three cases overturned by the court of appeal judgement in February 2002. In what has become known as the Barber Ruling, the House of Lords restored the county court's original findings in this case.
However, whilst the Barber ruling has clarified the law it has not overruled the 16 principles set down by the court of appeal judgement.
Its main impact has been in re-establishing that the employer, where they are aware that an employee has a potential stress related health issue, has a responsibility to investigate the health of that employee rather than waiting for the employee to identify the problem.
Stress claims are hard to win
Work-related stress claims remain exceedingly difficult to win. Despite the Barber ruling, it is important that employees complain to their line manager if they are suffering problems, and complain early and frequently (preferably in writing).
Ensure that those complaints are recorded. It is also important to seek medical help.
If you believe you have suffered a stress-induced injury as a result of your work environment and wish to make a claim, please call 0800 328 3255.