Stress in the Workplace

Stress in the workplace - an employer's perspective

Consider what might happen in Court/ Tribunal and then, in your mind, work backwards to work out what needs to be done now to avoid getting there.

In any claim against the employer, the employee may say that

1. He has been effectively forced to work long hours - over and above his contractual obligation and beyond that which is reasonable - over a long period of time with increasing pressure to perform to ever rising targets

2. This led directly to his medical problems

3. The employer have ignored the situation or did not take enough, or the right, steps to remedy the situation

4. His medical condition worsened as a result

Taking each in turn

The employee has been effectively forced to work long hours ö over and above his contractual obligation and beyond that which is reasonable - over a long period of time with increasing pressure to perform to ever rising targets

This involves matters of fact. Much time effort and expense will be incurred in gathering the evidence to establish whether or not it is true ö unless the employer admits it!

Let us assume that the Tribunal finds that the employee proves the 'pressure cooker' effect of the employer's demands on him

This led directly to his medical problems

This involves matters of medical evidence. Suppose that the employee admits to matrimonial difficulties and to drinking too much but, of course, these could be the outcome of his stress at work as opposed to the initial cause of stress and difficulties at work

The employer have ignored the situation

The Tribunal will also try to pin point the time at which the employer should have realised this ('forseeability'). Under UK law, an employer must provide reasonable working conditions for its employees and as soon as it foresees that possibility of harm being caused must modify its demands / requirements for stressed out employees, if they appear to be struggling

Are you prepared to go down the road of trying to 'rehabilitate' this employee i.e. bring him back 'up to speed'. An employer must do what is reasonable in the circumstances and so the question 'how far must you go ?' depends on the particular employee

Suppose the employee takes time out and then comes back, but is only working at '60 ö 70% of his former capacity'. Are you talking about?

60-70% of a reasonable full capacity or
60-70% of the historical unreasonable capacity (assuming that the employer admits or the employee proves to the Tribunal's satisfaction that the demands upon him were unreasonable)

The Tribunal will expect the employer to have done an evaluation of how the demands upon the employee increased over the years (assuming they did) and whether the demands on him, just before the problems emerged, were reasonable e.g., ' He would normally get into work for 07.30am and get home around 08.00 to 11.00pm five days a week'. Did his hours comply with the Working Time Directive?

Of course, any job sometimes involves periods of intense pressure (e.g. the run up to an exhibition / convention), but it is a question of whether the overall pressure increased (whether 'the bar was continually being raised')

His medical condition worsened as a result.

Again a question for the medical experts

Stress generally

The UK Court of Appeal has recently set out guidelines for courts dealing with negligence claims against employers in circumstances where claimants were forced to stop work because of stress-induced psychiatric illness.

1. There were no special control mechanisms applying to claims for psychiatric illness arising from the stress of doing the work the employee was required to do. The ordinary principles of employer's liability applied

2. The threshold question was whether this kind of harm to this particular employee was reasonably foreseeable, i.e. an injury to health which was attributable to stress at work

3. Foreseeability depended upon what the employer knew or ought reasonably to have known. An employer was usually entitled to assume that an employee could withstand the normal pressures of the job unless he knew of some particular problem or vulnerability

4. The test was the same whatever the employment

5. Factors likely to be relevant were the nature and the extent of the work done by the employee and signs from the employee of impending harm to health

6. The employer was generally entitled to take what he was told by an employee at face value

7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work ought to be plain enough for any reasonable employer to realise that he should do something about it

8. The employer was only in breach of duty if he had failed to take the steps that were reasonable in the circumstances.

9. The size and scope of the employer's operation, its resources and the demands it faced were relevant when deciding what was reasonable.

10. An employer could only be expected to take steps that were likely to do some good: a court was likely to need expert evidence on this

11. An employer who offered a confidential advice service with referral to appropriate counseling or treatment services was 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 would not be in breach of duty to allow a willing employee to continue in the job

13. In all cases it was necessary to identify the steps the employer both could and should have taken before finding him in breach of duty

14. The claimant had to show that breach of duty had caused or materially contributed to the harm suffered. It was not enough to show that occupational stress had caused the harm

15. Where the harm suffered had more than one cause, the employer should only pay for that proportion of the harm suffered that was attributable to his wrongdoing unless the harm was truly indivisible

16. The assessment of damages would take account of the any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.

Other claims

The above was in relation to negligence claims, but similar considerations will come into play with

1. Unfair dismissal . The employee resigns, saying that

1.1. the employee has behaved in such a way that he could not be expected to stay

1.2. this was a constructive dismissal

1.3. the dismissal was unfair

1.4. the employer was therefore liable to pay compensation

2. Disability Discrimination . The employee says that

2.1. his medical problems amounted to a disability within the Disability Discrimination legislation

2.2. the employer did not take steps to make adjustments for his disability

2.3. the employer was therefore liable to pay compensation

3. Health and Safety. The Employers duty to provide a safe working environment for it's employees

Compromise agreements

1. An employee cannot 'sign away' his rights to bring claims in Court (for wrongful dismissal i.e. in breach of contract of employment) or in the Tribunal (for unfair dismissal, being unfairly selected for redundancy, disability discrimination etc.) unless there is an agreement in writing signed by the employee and counter signed by an independent solicitor.

2. The idea is that the employee gets independent advice on whether he has got any grounds to bring a claim.

2.1. If not, the employee tends to sign.

2.2. Even if the employee has got grounds, but the employer is offering compensation approaching the amount that the employee might get through legal action, he still sometimes signs rather than incur the stress, delay and expense of making claims

3. There is no obligation on an employer to offer a compromise agreement. It can dismiss the employee, pay what it thinks is the right amount of money and wait to see whether the employee makes a claim (within 6 years for contractual claims, 3 years for personal injury claims and only 3 months for Tribunal claims)

4. You might care to consider whether to initiate a conversation with the employee regarding the amount of a 'leaving package' seeking to pitch it at a level which is high enough to interest him - even then, he cannot sign away a right to a personal injury claim, if the employee alleges that injury has already been caused

Conclusion

1. The first step must be to carry out an evaluation of what demands

1.1. Were being placed on the employee

1.1.1. historically

1.1.2. in the run up to the problems emerging

1.1.3. are being placed on him now

1.2. Are reasonable to make of an employee

1.2.1. with the employee's vulnerability ('the employee's Work Level')

1.2.2. without the employee's vulnerability ('Reasonable Work Level')

1.3. Can be introduced within what time frame to try to narrow the gap between 'the employee's Work Level' and a 'Reasonable Work Level' ö obviously taking care to vary and justify the speed of the improvement steps in the light of the employee's progress

2. If, at any stage, you conclude that he will never reach a Reasonable Work Level or that progress is going to be unreasonably slow (and you can demonstrate this to the satisfaction of a Tribunal), you will then be able to implement the company and statutory dismissal procedures to terminate his employment of the grounds that his work is not 'up to scratch'

3. The employee will always blame the employer but if you can demonstrate that you have worked your way through the various evaluations and done everything possible (and reasonable), you will be in a position to defend yourself against any claim

4. At some stage the employee or his solicitor may realise what is happening, recognise that the outcome is inevitable and become more amenable to accepting a 'leaving package'.

If all this does not leave you too stressed out to call for advice, ring Michael Breeze 07900 195195

Stress in the Workplace