Auditing work related stress – Seán Crossan's Scots Law

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An employer’s liability for psychiatric injuries

In Chapters 3 and 6 of Introductory Scots Law, I discuss the issue of work-related stress.

An employer owes a duty to his employees not only to take reasonable care for their physical, but also their mental well-being. In modern times, more stressful working environments and practices have led to a dramatic increase in the number of employees suffering from psychiatric injuries.

It was, therefore, with a mixture of professional interest and genuine sorrow that I read about a tragic case of work related stress where a 48 year old university lecturer took his life because of the pressures that he was labouring under. The BBC reported the story and a link can be found below:

Lecturer’s widow hits out at Cardiff University workload

Dr Malcolm Anderson killed himself after complaining about mounting pressure at work.

The cost of stress

Mind, the mental health charity has stated that “Our research confirms that a culture of fear and silence around mental health is costly to employers:

More than one in five (21 per cent) agreed that they had called in sick to avoid work when asked how workplace stress had affected them
14 per cent agreed that they had resigned and 42 per cent had considered resigning when asked how workplace stress had affected them
30 per cent of staff disagreed with the statement ‘I would feel able to talk openly with my line manager if I was feeling stressed’
56 per cent of employers said they would like to do more to improve staff wellbeing but don’t feel they have the right training or guidance”

“Taking care of your staff” – Mind. Available at:

https://www.mind.org.uk/workplace/mental-health-at-work/taking-care-of-your-staff/

Awareness of work related stress

An employer will usually start off from the understanding that the employee should be able to handle the normal pressures of the job unless he has knowledge that the employee has a particular problem or weakness that makes it much more likely that this person is more susceptible to the risk of developing psychiatric injuries as a result of a stressful working environment. Clearly, it is easier for an employee to put into place safety measures in the workplace that protect an employee’s physical well-being. Reducing the risk of psychiatric injuries to employees caused by work-related stress is much more of a challenge for employers. Very often, employers can only take what an employee tells them about their emotional and mental health at face value. To go further, would be perhaps a breach of the employee’s right to privacy.

The legal consequences of work related stress

The first really ground-breaking case was Walker v Northumberland County Council [1995] 1 ALL ER 737.

Walker worked in a particularly stressful social work post for the Council. He had already suffered a breakdown due to overwork and a lack of support from his employers. His employer gave assurances that safeguards would be put in place upon his return from sick leave in order to reduce the risks of stress. The pursuer returned to work, but suffered a second breakdown because the Council had failed to take reasonable care to prevent him suffering from psychiatric injuries. The pursuer brought a claim for damages against the Council.

Held: by the House of Lords that the pursuer should be treated as a primary victim who was entitled to claim damages as a result of the Council’s negligence. The Council had returned him to his previous (stressful) post and it was, therefore, reasonably foreseeable that if the pursuer was exposed to these stressful conditions it was likely that this would cause him to suffer psychiatric injury. If an employee is regarded as a secondary victim, he must satisfy the tests laid down in White and Others v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509 which is also discussed in Chapter 3. White arose because Police officers who were on duty at the Sheffield Wednesday FC ground on the day of the Hillsborough Disaster in 1989 claimed that their employer had caused them to suffer psychiatric injuries as a result of its breach of the duty of care to them. All the officers’ claims failed.

In Hatton v Sutherland [2002] EWCA Civ 76, the English Court of Appeal stressed that the key question to be asked in situations where an employee raised an action for damages for work-related psychiatric injuries was whether the harm suffered by the pursuer was reasonably foreseeable. The pursuer had to prove that he had suffered an injury to his health which is quite different from occupational stress and this injury had been caused by stress at work and not other factors that could affect the pursuer’s health. Very importantly, the Court of Appeal stated that it was wrong to assume that some jobs are more dangerous than others. All jobs should be judged according to the same test.

Hatton involved four claims in total against different employers: Mrs Hatton and Mr Barber were teachers in public sector secondary schools, Mrs Jones was an administrative assistant at a local authority training centre and Mr Bishop was a raw materials operative in a factory. All four pursuers won their cases in the County Court. The Court of Appeal, however, dismissed three of the employees’ claims and only narrowly approved the Mrs Jones’ claim.

It will still be very important for employers to show that they take reasonable care to prevent their employees from developing psychiatric injuries, especially if the employer is aware that the employee is particularly vulnerable in this regard. The approach taken by the Court of Appeal in Hatton was affirmed by the House of Lords in Barber v Somerset County Council [2004] UKHL 13.

In Dickens v O2 PLC [2008] EWCA Civ 1144, the English Court of Appeal effectively updated its guidelines in relation to stress related claims in the work place.

In this case, Dickens, a very hard-working and conscientious employee, had explained to her line manager that she “was palpably under extreme stress” and “about to crack up”. This disclosure effectively put the employer on notice about the risks to this employee’s health and it was reasonably foreseeable that she would develop a psychiatric injury. The employer’s response to Dicken’s disclosure about her psychiatric state was totally inappropriate and inadequate. When the disclosure was made, the employer owed a duty of care to Dickens and it had manifestly failed to implement this and was, therefore, liable for the psychiatric injuries caused. It should be appreciated that this decision significantly modifies the test of reasonable foreseeability for work related stress claims which was originally established in Walker v Northumberland County Council [1995]. In Walker, the risk to the employee of psychiatric injury only became reasonably foreseeable after the employee in question had suffered his first breakdown and was subsequently absent from work due to this condition. The decision in Dickens effectively places a greater burden of responsibility on employers for stress related claims in the work place.

Conclusion

Employers should be particularly mindful of stress suffered by employees and they should regularly update their knowledge of the effects of stress in the workplace. One of the ways in which they can monitor work related stress is by carrying out an audit of the workforce several times throughout the year. The data should then be analysed and acted upon to ensure that particularly vulnerable employees are not put at further risk. Such an audit can be relatively easy to carry out as the Health and Safety Executive has produced a Management Standards Risk Evalution Toolkit and questionnaire to help employers deal effectively with work related stress.

Links to the Management Standards Risk Evaluation Toolkit and questionnaire can be found below:

http://www.hse.gov.uk/stress/standards/index.htm

https://www.hslsurveydeliverysystem.com/snapwebhost/siam/surveylanding/interviewer.asp

An interesting article on whether an employer can be liable for the suicide of employees can be found below:

https://wilkinssafety.co.uk/2016/10/employers-liable-employee-commits-suicide/