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Stress and the
Law
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STRESS IN THE
WORKPLACE: The Legal Implications.
"Stress
is now on the agenda & employers must
do something about it". (Croner,
Reference Book for Employers, Bulletin
72).
According to the Health & Safety
Executive in its recent report, `Mental
Health and Stress in the Workplace: a
Guide for Employers`, it is estimated
that 360 million working days are lost
annually in the United Kingdom at a cost
of £8 billion, and that half of these
absences are `stress related`. It is the
aim of this paper to discuss the legal
implications of such stress in the
workplace.
Although there is no specific
legislation, i.e. no specific Act of
Parliament, which controls stress in the
workplace, the employment relationship -
the relationship between an employer and
an employee - is governed by law, both
the law of contract and the law of tort.
In the former an action may lie in
`breach of contract`, in the latter in
the `tort of negligence`. Thus, a
`contract of employment` contains a range
of express and implied terms, the latter
implied both by common law and by
statute. Of particular importance in a
contract of employment is the concept of
the `duty of care` - a duty owed by an
employer for the health, safety and
welfare of his employees. Breaches of
this duty of care may lead to a criminal
prosecution in the Criminal Courts and/or
a civil action in the Civil Courts and
Tribunals.
CRIMINAL
COURTS
At statute law, under the Health and
Safety at Work Act 1974, "It shall
be the duty of every employer to ensure,
as far as is reasonably practicable, the
health, safety and welfare at work of all
his employees". (HASWA 1974:s 2.1).
"The matters to which that duty
extends include, in particular - the
provision and maintenance of plant and
systems of work that are, so far as is
reasonably practicable, safe and without
risks to health; the provision of such
information, instruction, training and
supervision as is necessary to ensure, so
employees that is, so far as is
reasonably practicable, safe, without
risks to health, and adequate as regards
facilities and arrangements for their
welfare at work". (HASWA 1974:s
2.2).
In addition, under the same Health and
Safety at Work Act 1974, "It shall
be the duty of every employer to prepare
and as often as may be appropriate to
revise a written statement of his general
policy with respect to the health and
safety at work of his employees and the
organisation and arrangements for the
time being in force for carrying out the
policy, and to bring the statement and
any revision of it to the attention of
all his employees". (HASWA 1974:s
2.3).
In 1993 a set of Regulations on health
and safety at work came into force, of
which the most important is the
Management of Health and Safety at Work
Regulations 1992 under which, "Every
employer shall make a suitable and
sufficient assessment of the risks to the
health and safety of his employees to
which they are exposed whilst they are at
work ..... for the purpose of identifying
the measures he needs to take to comply
with the requirements and prohibitions
imposed on him by or under the relevant
statutory provisions". (MHSW
Regulations. 1992:s 3).
Breaches of health and safety legislation
may lead to a criminal prosecution in the
Criminal Courts, i.e. in the Magistrates
Court or the Crown Court, with a penalty
of a fine and/or imprisonment, as in
Health & Safety Executive v Firth
Furnishings Ltd. It should be noted,
however, that such breaches of health and
safety legislation may not give rise to a
civil action by an individual employee in
the Civil Courts.
However, other possible sources of
litigation arising from legislation are
the Sex Discrimination Act 1975, the Race
Relations Act 1976 and, as yet untried,
the recent Disability Discrimination Act
1995. Under the Disability Discrimination
Act 1995, "A person has a disability
for the purposes of this Act if he has a
physical or mental impairment which has a
substantial and long-term adverse effect
on his ability to carry out normal
day-to-day activities". (DDA 1995:s
1.) Discrimination occurs in the
Disability Discrimination Act 1995, as in
the Sex Discrimination Act 1975 and the
Race Relations Act 1976, "When an
employer treats an employee less
favourably than he treats or would treat
others to whom that reason (of
disability, sex or race) does not or
would not apply; and he cannot show that
the treatment in question is
justified". In such cases, however,
it is for the individual employee to
bring an action for discrimination
against the employer before an Industrial
Tribunal. (See below).
CIVIL
COURTS
At common law it has long been
established by precedent that an employer
owes a `duty of care` to his individual
employees while the latter are in the
course of their employment. As stated in
Wilsons & Clyde Coal Company Ltd v
English, "The whole course of legal
authority consistently recognises a duty
which rests on the employer, and which is
personal to the employer, to take
reasonable care for the safety of his
workmen". Since the Employers`
Liability (Compulsory Insurance)Act 1969,
all employers have a legal duty to be
insured against possible claims from
their employees.
The personal nature of the duty of care
means that the duty is owed to each
employee individually, and not to the
work force as a whole, and so in any
civil action by an employee against his
employer in the tort of `negligence` in
the Civil Courts, i.e. the County Court
and the High Court, the Court will be
entitled to look at the circumstances of
the individual employee and what it was
reasonable to expect of the employer in
the particular case. However, the burden
of proof in a claim for negligence falls
on the employee, i.e. the employee must
prove that the employer was at fault. As
stated in Lochgelly Iron & Coal
Company v McMullan, "In strict legal
analysis negligence means more than
heedless or careless conduct, whether in
omission or commission: it properly
connotes the complex concept of duty of
care, breach of that duty of care and the
damage suffered as a direct consequence
by the person to whom the duty was
owing". Thus, in essence, in a civil
action in the courts for negligence an
employee - as the plaintiff - must show
that the employer - as the defendant -
owed him a duty of care, that the
employer was in breach of that duty of
care, and that physical or psychiatric
damage was suffered by the employee as a
result. Of particular importance,
however, in such an action for negligence
is the legal concept of `causation` and
`foreseeability`, i.e. it is for the
plaintiff to prove that the damage
suffered was actually caused by the
working environment, and that the
employer should reasonably have foreseen
that such damage would be caused. If the
plaintiff is successful in his civil
action he may be awarded compensation of
up to £50,000 in the County Court, and
compensation without limit in the High
Court. In the case of Walker v
Northumberland County Council, mentioned
below, the plaintiff was awarded
£200,000 in compensation, subsequently
reduced to £175,000 by agreement between
the parties.
The importance of Walker v Northumberland
County Council is that this is the first
case in legal history where an employee
was `awarded` compensation for
psychiatric damage suffered as a result
of work-related stress. (In the earlier
cases of Johnstone v Bloomsbury Health
Authority and Petch v HM Customs &
Excise Commissioners, the former had been
settled out of court by the parties, the
latter had been lost by the plaintiff).
As stated in the judgement in Walker v
Northumberland County Council,
"Whereas the law on the extent of
this duty has developed almost
exclusively in cases involving physical
injury to the employee as distinct from
injury to his mental health, there is no
logical reason why risk of psychiatric
damage should be excluded from the scope
of the duty of care".
INDUSTRIAL
TRIBUNALS
An alternative course of action for an
employee, rather than a civil action in
the tort of negligence in the Civil
Courts, is an action for `unfair
dismissal` before an Industrial Tribunal.
The jurisdiction of Industrial Tribunals
is based entirely on legislation, in
particular the Employment Protection
(Consolidation) Act 1978, now
consolidated together with other
employment legislation into the
Employment Rights Act 1996.
Under the Employment Rights Act 1996,
"Every employee has the right not to
be unfairly dismissed by the
employer". (ERA, 1996:s 94).
However, to make an application for
unfair dismissal to an Industrial
Tribunal, an employee must have had
continuous employment with the same
employer for at least two years prior to
the effective date of termination, and
must have been `dismissed`. Dismissal may
occur both at common law and in
legislation. However, common law only
recognises one act which constitutes
dismissal, i.e. the termination of the
contract of employment by the employer
with, or without, notice; while
legislation (statute law), the Employment
Rights Act 1996, recognises two further
acts which constitute dismissal, i.e. the
non-renewal of a temporary contract, and
so called `constructive dismissal` where,
for example, an employee becomes so
stressed by some aspect of their work or
working environment that they feel
obliged to resign, as in Whitbread plc v
Gulleyes.
Thus, under the Employment Rights Act
1996: "An employee shall be treated
as dismissed by his employer if, and only
if,
a) the contract under which he is
employed is terminated by the employer,
whether with or without notice; or
b) he is employed under a contract for a
fixed term, that term expires without
being renewed under the same contract; or
c) the employee terminates the contract
under which he is employed, with or
without notice, in circumstances in which
he is entitled to terminate it without
notice by reason of the employer's
conduct". (ERA 1996:s 95).
It is the latter reason which is
popularly termed `constructive
dismissal`. However, in an action for
constructive dismissal, as decided in
Western Excavating v Sharp, it is for the
employee to show that the employer has
committed a fundamental breach of the
contract of employment which goes to the
root of the contract.
When a employee, who has sufficient
continuity of employment, makes an
application to an Industrial Tribunal
then, according to the Employment Rights
Act 1996, "It is for the employer to
show the reason for the dismissal; and
that it is a reason which relates to
capability or qualifications, conduct,
redundancy, contravention of a statute or
some other substantial reason of a kind
such as to justify the dismissal of an
employee holding the position which the
employee held". (ERA 1996:s 98.1-2).
In particular, "Capability, in
relation to an employee, means his
capability assessed by reference to
skill, aptitude, health or any other
physical or mental quality". (ERA
1996:s 98.3). It would thus include a
stress related illness.
Moreover, under the Employment Rights Act
1996, "The determination of the
question whether the dismissal was fair
or unfair, having regard to the reason
shown by the employer, depends on whether
in the circumstances, including the size
and administrative resources of the
employer's undertaking, the employer
acted reasonably or unreasonably in
treating it as a sufficient reason for
dismissing the employee, and that
question shall be determined in
accordance with equity and the
substantial merits of the case".
(ERA 1996:s 98.4). This issue of
`substantive and procedural justice` has
been defined by the Courts over the
years, culminating in the case of Polkey
v A E Dayton Services Ltd.
OVERVIEW
Thus,
in short, in the case of work related
stress, an employee has the option of
suing his employer for negligence in the
County Court or the High Court, or making
an application for unfair dismissal to an
Industrial Tribunal. In the case of
negligence a precedent has been set by
Walker v Northumberland County Council.
The case of Walker v Northumberland
County Council was due to be heard on
appeal by the Court of Appeal in June
1996. However, when the parties decided
not to appeal, but rather to agree the
sum in compensation for the employee at
£175,000, as mentioned above, a
precedent was set. At the time of writing
there are thought to be some more than a
hundred similar cases waiting to be heard
by the courts. In future, all employers,
to protect themselves from both
legislation and litigation, will be well
advised to have in place a `stress
management policy` and an `employee
stress management programme`, as in Petch
v HM Customs & Excise Commissioners,
to avoid the risk of damages being sought
against them by their employees.
According to the Health and Safety
Executive, in its publication, `Stress at
Work: a Guide for Employers`, the
benefits of such `Employee Stress
Management Programmes` include better
health for their employees, reduced
sickness absence, increased performance
and output, better relationships with
clients and colleagues, and lower staff
turnover. As has been seen, a further
major benefit would be the avoidance of
litigation before the courts.
Peter Matthews (c).
MA, MEd, MPhil, LLB,
FIHP, FASM, ISMA
Click here for the TUC report on Stress
in the Workplace
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For
the SOLUTION click on the appropriate
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