Whether you are a Manager, Director or Owner of a business, how you handle complaints of stress will determine the successful prevention or treatment of stress related illness and the ultimate cost to your business.
Work related stress in the UK accounts for 37% of work related illness and 45% of days lost, according to HSE statistics for 2016. These figures are not surprising with many people work full time to meet the higher costs of living, plus juggling looking after their family, (either their children or ageing parents). Technology means we are all more available and often do not escape from work outside normal working hours.
Industries such as business, media and public service professionals, teaching and healthcare workers show the highest levels of stress. Main factors cited for stress related illness include workload pressure (deadlines/ too much responsibility) and lack of management support.
The recent case of Herry –v- Dudley Metropolitan Council and Governing Body of Hillcrest School  highlights the distinction between an employee who is unhappy at work and an employee who suffers from a recognisable psychiatric injury caused as a result of stress and reignites the debate about the level of duty of care owed to an employee when dealing with issues of stress at work.
Facts of the case
Mr Herry was a teacher and part time youth worker. From May 2010 he lodged many sickness certificates and from June 2011 he commenced long term sick leave, citing “physical injuries” until October 2013, when his certificates stated “work related stress”. Mr Herry alleged his employer discriminated against him on the grounds of his disabilities which were dyslexia, stress and depression.
Mr Herry did not take medication for stress and was physically and mentally fit enough to perform his role and return to work, but there were other non-medical, unresolved management issues which were said to be causing him stress.
His disability discrimination claim failed as he was not able to prove “a recognisable psychiatric disorder”, only stress.
Importance of Health and Safety at Work
A cautious approach is recommended where there are longstanding complaints of stress, as they can be indicative of underlining recognisable psychiatric conditions such as depression which can qualify as a “disability” within the meaning of the Equality Act 2010.
An individual must show that they have a physical or mental impairment which has a substantial or long term (12 months plus) adverse effect on their ability to carry out their normal day to day activities to meet the criteria for “disability”.
If you do not make “reasonable adjustments”, where an employee proves they have a “disability”, they could have a claim for disability discrimination under Section 21 of the Equality Act 2010.
- Forseeability – whether or not the harm suffered by the particular employee was reasonably foreseeable. Has the employee made specific and provable complaints about an imminent breakdown?
- Investigation – proper and early intervention.
- Medical Causation - establish if the employee has “a recognisable psychiatric or psychological disorder” by obtaining medical evidence.
- Reasonable Adjustments - consider and implement.
What Qualifies as a Reasonable Adjustment?
- allowing an employee time off
- referral to occupational health consultant
- accommodating a gradual return to work
- taking reasonable steps to remove the cause of the stress
- transferring to different job within the organisation
There will still be employers who do all they can to assist employees and who, despite attempts at prevention, still suffer from psychiatric disorder. As long as the employer has done all they reasonably can, it will be difficult for employees to show that they have been discriminated against or treated unfairly.
It was World Day for Health & Safety at Work on 28 April 2017. Employers face difficult challenges where the cost of trying to accommodate such an employee can have a financial impact on the business and/or encourages future demands from such employees. However, brushing off the complaints of disgruntled employees may have a far higher financial consequence to your business.
For further information about these issues and how they could affect your business, please contact Claire Roantree in the Personal Injury team on [email protected] or Barry Stanton in the Employment team on [email protected] or 0118 952 7284.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.