Stress alert!
Date: 30 October 2009
Authors: Heather Platt
Issue: Vol 159, Issue 7391
Categories: Features, Employment
Stress has been described by the Court of Appeal as “an excess of demands upon an individual in excess of their ability to cope” (see Hatton v Sutherland and other appeals [2002] EWCA Civ 76, [2002] All ER (D) 53 (Feb)).
Stress is not a psychiatric injury: however it can lead to feelings of anxiety and depression or exacerbate other conditions such as dyslexia or epilepsy. Employers should be aware that employees may become disabled for the purposes of Disability Discrimination Act 1995, s 1.
The Court of Appeal felt that there are no occupations which should be regarded as intrinsically dangerous to mental health. Further, an employer is entitled to assume that an employee is able to withstand the ordinary pressures of the job and is generally entitled to take what he is told by his employee at face value, unless there is a good reason to think to the contrary.
Case law
The starting point is LJ Hale’s now well known guidelines in Hatton (approved by the House of Lords in Barber v Somerset County Council [2004] UKHL 13) which state: (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.
Counselling services
Hatton seemed to offer a “get out of jail free” card to employers who offer counselling services. However, more recent case law suggests a loosening of theses tight constraints, which are acknowledged as the Hatton hurdles and which claimants often find difficult to overcome.
For example, in Intel Corporation (UK) Ltd v Daw (2007) IRLR 355 which has relaxed the requirement at para 11 above regarding counselling. In that case, Mrs Daw had been employed from 1988 and was promoted in 2000. Within four months of the promotion she was making representations to her managers about her workload being too much.
In March 2001, her manager found her in tears at her desk; he asked her to write down what was bothering her. She did so by writing him an email which detailed the problems caused by her being overworked. Intel promised a reorganisation and an additional employee to assist her.
However, the employee did not materialise and in June that year, she had a breakdown followed by a lengthy period of depression. Intel relied upon the fact that they had a counselling service which Mrs Daw had not used (as per para 11 of Hatton).
The Court of Appeal rejected that argument and found that once Mrs Daw had spoken to her manager, her employer was on notice that there was a risk of harm to Mrs Daw and urgent action should have followed. A short term counselling service would not have helped as it could not have reduced her workload.
At para 45 of Pill LJ’s judgment: “the reference to counselling services in Hatton does not make such services a panacea by which employers can discharge their duty of care in all cases.”
This particular Hatton hurdle received a further blow in Dickins v O2 [2008] EWCA Civ 1144. In this case the claimant was an “unusually conscientious” employee and had notified her employer that she felt stressed out and was “cracking up”: she requested a six-month sabbatical on 23 April 2002 and was advised to take advantage of O2’s confidential counselling helpline.
On 30 May 2002 she repeated her concerns during an appraisal and was referred to the occupational health department. There was a delay and before the appointment was fixed, Ms Dickins suffered a breakdown and did not return to work.
The Court of Appeal found that the claimant’s psychiatric injury was foreseeable from 23 April 2002 onwards. The trial judge found that the employer had breached its duty of care by not sending the claimant home and in not making an immediate referral to occupational health.
Identify the employees most at risk
Perhaps unsurprisingly, case law has shown that the profile of an affected employee is likely to be a perfectionist, which is backed up by medical research.
The research suggests that certain personality characteristics such as perfectionism may lead individuals to be more vulnerable to illness as a result of occupational stress. For example:
A “meticulous worker” (Hale LJ on one of the claimants in Hatton).
“Methodical, meticulous, to the point of being perfectionist” (Potter LJ described the claimant in Croft v Broadstairs and St Peter’s Town Council [2003] EWCA Civ 676).
The claimant in Pratley v Surrey County Council [2002] EWHC 1608 (QB) likewise set “very high standards” for herself.
The claimant in Bonser v UK Coal Mining Ltd [2003] EWCA Civ 1296, a “very hard working lady…[who] thought about her job in such idle moments as she had at home [and]…was conscientious to a fault”.
“A very diligent person…who was anxious to meet all her responsibilities” (one of the claimants in Hartman v South Essex Mental Health & Community Care NHS Trust [2005] EWCA Civ 6).
Another claimant in Hartman was “a perfectionist…[whose] work was always of the highest quality”.
In Sayers v Cambridgeshire County Council [2006] EWHC 2029 (QB), Ramsey J concluded: Mrs Sayers was evidently a conscientious worker who was committed to her work. She had a very close and supportive working relationship with those for whom she was responsible and adopted a “hands on” approach to solving problems. She also set herself high standards.
Pill LJ similarly characterised the claimant in Intel Incorporation (UK) Ltd v Daw as “an able, committed and very conscientious employee”.
Regular appraisals
Communication is key: regular six monthly appraisals can be an effective means of opening lines of communication between employers and employees. If they are conducted in a sensitive manner employees may be more likely to disclose issues regarding workload and stress.
Occupational health assessments
Occupational health assessments are clearly crucial to these claims and should be used proactively to manage the risks of psychiatric injury. They are invaluable sources of information for courts and tribunals in determining whether the employer has breached a duty of care.
It may seem obvious, but referrals need to be made without significant delays and any recommendations made in terms of reduction of workloads should be implemented effectively and efficiently.
Once an injury has been sustained: the rehabilitation code
Practitioners will know all too well that the litigation process is not conducive to recovery, particularly in relation to psychiatric injuries as it prolongs the feelings of anxiety and is a confrontational battlefield.
Once a claimant has sustained an injury and issued proceedings, employers are reminded to utilise the “rehabilitation code” which often has the effect of reducing any loss of earnings awards as it seeks to rehabilitate claimants and get them back to work effectively.
The most effective tool an employer can use in these times of uncertainty is straightforward communication, which is commended by the revised ACAS code.
Heather Platt is a barrister at Pump Court Chambers
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