Work related stress – Seán Crossan's Scots Law

Email can be a wonderful form of communication. It can also be, quite frankly, something of a curse for many employees and workers. Essentially, you’re never too far away from the work-place and bosses/clients/service users expect to receive an instant reply.

The expectation by bosses and managers that employees and workers should be monitoring their emails (constantly) does tend to be a contributory factor in the rising number of cases of work-related stress. Employers: please note that you have a duty of care to provide a safe working environment and part of this obligation includes monitoring unacceptably high levels of stress in the work-place.

There is a perception (rightly or wrongly) that UK employees suffer from some of the longest working hours in Europe. In 2019, data from the EU’s Eurostat Agency seemed to support this contention but, interestingly, the Organisation for Economic Co-operation and Development (OECD) took a more sceptical approach by questioning the method of data collection (the old adage about lies, damned lies and statistics springs to mind here).

Links to a BBC article about this issue and the Eurostat figures (and OECD response) can be found below:

https://www.bbc.co.uk/news/uk-politics-49795179

https://ec.europa.eu/eurostat/databrowser/view/tps00071/default/table?lang=en

https://www.oecd-ilibrary.org/economics/international-productivity-gaps_5b43c728-en;jsessionid=c_2XYmRNoOJLRgHdT0TJPQqs.ip-10-240-5-115

UK employees are, of course, entitled to receive a written statement of the main terms and particulars of their employment as per Section 1 of the Employment Rights Act 1996. This statement must contain a provision which addresses the employee’s normal weekly working hours.

Despite Brexit (which did occur on 31 January 2020 – in case you missed it), the UK is still following EU rules until the end of this year … One EU Law with particular relevance to this debate is the Working Time Directive ((2003/88/EC) which was transposed into UK employment law by way of the Working Time Regulations 1998.

In theory, the Directive and the Regulations cap the number of hours that employees (and workers) can work at 48 hours per week (technical point: this figure can be averaged out over a reference period – 17 weeks normally). Crucially, however, UK employees and workers can opt out of the 48 hour maximum by signing a declaration (opt-out) that they wish to do so. If they change their minds, they are entitled to do so by giving the employer a minimum seven days’ notice (or in certain cases – 3 months) of this intention.

The legal rules on working hours are all very well in theory, but what about the culture of organisations which may (at an informal level) promote the idea that long hours spent at work (or just working) are a sure fire way to get ahead in your career?

This is where the influence of email (and other instant messaging services) can be quite insidious (pernicious even?). Employees feel under pressure to deal with this work load at weekends, during holidays and evenings. Parents of young children and carers of elderly relatives, who may have negotiated flexible working arrangements, may be under acute pressure to deal with emails etc when they are outside the work-place. In this way, the work-place becomes like the Eagles’ song, Hotel California (‘You can check out any time you like, But you can never leave!‘).

Interestingly, in some of our ex-EU partner countries, there have been initiatives at both the organisational and legal level to curb the smothering influence of email outside the work-place.

There is a real danger here for employers that, by encouraging employee use of email outside working hours, it may constitute a policy, criterion or practice (PCP) – no matter how informal – which could open themselves up to accusations of indirect discrimination on grounds of sex (women are still the primary carers for children and elderly dependents) and disability (by reason of a person’s association with a disabled person) in terms of Section 19 of the Equality Act 2010.

Furthermore, employees might feel that they are under constant surveillance by the employer because it becomes easier to keep tabs on individuals when they are logging in and out of the company’s IT network. For employers, this could lead to legal challenges from employees who are concerned that the right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights has been violated.

Is there a better way of doing things? Yes, is the short answer.

In 2011, the German multinational car manufacturer, Volkswagen (VW) introduced major changes to its working practices by curbing the use of emails when employees were off duty. This agreement was negotiated by the company and trade union/labour organisations.

In France, in August 2016, they went further and passed the El Khomri Law (named after the French Government Minister for Labour who introduced the proposal). This law gave employees a right to disconnect from email. In one particular case which involved the French arm of the British company, Rentokil, an employee was awarded €60,000 because his right to disconnect from email had been breached.

Links to stories about the changes to VW’s working practices and the French El Khomri Law can be found below:

https://www.telegraph.co.uk/news/2018/08/01/british-firm-ordered-pay-60000-french-court-breaching-employees/

The debate about the right of employees to disconnect from email – whether this is negotiated via some sort of collective agreement or underpinned by law – now seems to have penetrated the British consciousness. Rebecca Long-Bailey MP, one of the leading contenders for leadership of the British Labour Party has thrown her hat into the ring by backing a trade union campaign to introduce a legal right to disconnect in the UK.

One small problem: the Labour Party lost the last British General Election on 12 December 2019 to the Conservatives and is, therefore, in no position to deliver. Over to you Prime Minister Johnson? (a man fond of the populist gesture).

A link to an article in The Independent about Rebecca Long Bailey’s support for the trade union campaign to introduce a law guaranteeing the right to disconnect can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110220/data/9327866/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/23/a-hard-days-night/

https://seancrossansscotslaw.com/2019/02/25/the-work-life-balance-or-utopia-reimagined/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

https://seancrossansscotslaw.com/2019/02/11/employment-contracts-read-them-or-weep/

Copyright Seán J Crossan, 11 February 2020

Photo by Gabriel Matula on Unsplash

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/