01 January 2007

Employment news - winter: Workplace stress: cure or claim?


Meriel Schindler
Partner | UK

The Health and Safety Executive (HSE) announced on 1 November 2006 that stress at work costs society just under £4 billion a year. 

Doctors tell us we are built to cope well with stress and that we often function best when slightly stressed.  However, when demands exceed resources, the individual will suffer from reduced efficiency, creativity and alertness. If stressed further, the individual may well suffer serious psychiatric illness. Whether someone is stressed will depend on the demands made of the individual and the individual's own ability to cope with those demands. The HSE in its booklet ‘Working together to reduce stress at work' identifies six risk factors, set out below:

  • the demands of the job
  • the control the individual has over his or her work
  • the support the individual receives from managers and colleagues
  • the individual's relations at work
  • the individual's role in the organisation
  • how change is managed

Often, the first time employers become aware of a stress problem at work is when a sick note lands on their desk. If the employee returns to work and suffers a stress-induced breakdown causing long-term psychiatric harm, the employer is likely to be liable for that harm.  

The law in this area has been a fertile ground for judicial creativity over the years. The starting point is that an employer has a general common law civil duty to take reasonable care of the health and safety of its employees. To succeed in a civil claim, an employee will have to show that his employer breached the duty of care owed by employer to employee, that it was reasonably foreseeable that an injury would result from the breach, and that personal injury has actually occurred. 

Many cases fail the ‘foreseeability' test. Unless the employee has clearly put his employer on notice, he may not be able to show that injury was reasonably foreseeable.  However, once the employer is on notice it should consider remedial action, for example, time off work, redistributing work (although not at the expense of others) and confidential, comprehensive counselling. If these options are not possible, the only way forward may be to dismiss or demote the employee. 

For many sufferers from mental illness, work is a major route to recovery.  Managing a return to work appropriately may mean the difference between recovery and foreseeable long-term damage to the employee, between a cure and a claim.

Meriel Schindler Partner | London

Category: Article