In Part 1 of this piece https://www.employmentlawworldview.com/uk-high-court-gives-useful-recap-on-liability-for-stress-induced-psychiatric-illness-in-the-workplace-part-1/ we considered the requirement of foreseeability as a condition of establishing an employer’s liability for stress-related psychiatric harm. Here we look at the other main ingredient, a breach of duty by the employer.
It is not enough that an employee’s illness is as a matter of medical fact caused or contributed to by pressure in the workplace. There must be a breach by the employer of a duty it owes the employee, most usually the duty to take reasonable care to avoid unnecessary risks to his health.
Where workplace stress is concerned, the obvious questions are when the employer has a duty to do something about it, and what it then has a duty to do. As for the first piece in this series, it is hard to improve on the guidance given in Hatton – v – Sutherland in 2002, and in Easton – v – B&Q last month, the High Court did not attempt to do so. Here are some of the main duty points in italics, with our commentary on them.
- To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it. Therefore the employer does not need to apply professional standards of medical diagnosis, but persistent out-of-character behaviour will warrant some enquiry. The more overt it is, the sooner that trigger point arises. Stress indicators are traditionally grouped under the separate categories of emotional, physical and behavioural, so keep an eye open for obvious fatigue, irritability, low self-esteem or aggression (emotional), regular headaches, back ache, exacerbation of other complaints (physical), or increased drinking or smoking, absenteeism or difficulties concentrating (behavioural).
- The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it and the justifications for running the risk.This means balancing those factors so that, in effect, the more likely the harm to the employee or the more serious the damage if the harm occurs, the less important become the employer’s justifications for taking that risk with its employee’s health, and the cost of avoiding it.
- The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example in any redistribution of duties. The latter part of this is particularly relevant when considering medical recommendations to work reduced hours or more limited duties – those extra responsibilities have to go somewhere, after all. Hatton makes it clear that the stressed employee’s colleagues cannot simply be expected to take up the slack. Even if taking on the extra work is within both their contracts and their capabilities, the employer is not obliged to make those accommodations for the stressed employee (at least, not on any more than a fairly short-term basis as would be the case where a colleague was off sick or on holiday).
- 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. This is a bolder assertion than is probably justified by the law. The confidential nature of the service means that the employer may not get to hear of how its employee is suffering mentally. By reason of his illness or just his character, the employee may also not wish to use this service anyway. Then the problem does not get addressed. There is no substitute for encouraging employees to raise their issues direct with the employer. An employee assistance programme or similar is useful, yes, but not an absolute defence to a psychiatric injury claim.
- If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job. Even if it is for his own protection, reducing an employee’s hours or duties without his agreement could count as a constructive dismissal.
- In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care. Complaints by employees about stress at work can sometimes lack detail of where the employer is said to be at fault. This paragraph in Hatton, reinforced in Easton, seems to legitimise a reasonably robust enquiry in response as to how specifically the employee says that his illness could have been avoided. Where the grievance is not that the employee has been made ill but that he will be so shortly, the same applies – what specifically is he asking the employer to do? What would have to happen for the stress to be manageable again? The employer should not be shy of asking these questions. The exercise of first considering practical solutions rather than legal obligations may help crystallise both parties’ thinking as to where the problem really lies – is it with the employer or the employee? – and from there as to what steps are actually going to be viable and effective to address it.