This is a field of law which has grown significantly since the well publicised case of Walker v Northumberland County Council 1995. It has since been addressed by the Court of Appeal in Hatton v Sutherland 2002 annd again in Hartman v South Essex Mental Hospital NHS Trust 2005, as well as by the House of Lords in Barber v Somerset County Council 2004.
As this recent activity in the appeal courts suggests, making a compensation claim for “stress at work” is far less straightforward than pursuing a claim following an accident at work.
Under English law there is no right to claim compensation for stress. Most of us suffer from stress during our working lives at one time or another and that can take the form of tension, anxiety, insomnia and so on.
In reality, to make a claim for compensation the individual has to be able to a) demonstrate that they have suffered from a recognised psychiatric illness such as clinical depression. The individual also has to be able to b) show that the psychiatric illness was caused by stress at work. Further, the individual must also c) show that they were negligently exposed to stress at work and d) that their psychiatric illness is a direct result of their employer’s negligence. If the cause of the stress was “non-negligent” then there will be no liability on the part of the employer.
The most common example of the cause of stress at work is of course volume of work, where an individual simply does not have the time to do the work which they are required to do. Another good example of a cause of stress is the nature of work itself, such as a job in which an individual has to deal constantly with complaints from clients or customers and does not have proper training or counselling available to them.
In addition to those more obvious causes, stress can also be caused by victimisation or bullying at work, perhaps by a manager or superior who is abusing their authority or by work colleagues who have singled out one particular individual for whatever reason.
These are all examples of how individuals can suffer from stress at work which, if not addressed, can elad to the individual suffering from a psychiatric illness.
As with all compensation claims, to succeed the individual must be able to show that their employer has been negligent or in breach of their statutory duty. Apart from the Protection from Harrassment Act 1997, there are no specific statutory obligations which deal with the question of stress at work. The principles of negligence, therefore, remain as the guidelines for the assessment of liability on the part of the employer.
First and foremost, the individual must be able to establish tahtt eh employer knew or should have known of the individual’s problem, yet failed to address that problem. In cases of stress, this test presents its own particularl difficulties, because each individual has a different tolerance level. For example, some individuals thrive on working 70 – 80 hours per week whereas others will start to struggle if they are given any extra responsibilities above and beyond their job description. So how then can employers be expected to know what an individual employee’s breaking point is?
The answer to that question, coming from the Courts, seems to be that they cannot. A claim will therefore only succeed if the individual can show that their employer was specifically madea aware of the existence of a problem at work (whether it be volume of work, the nature of the work, harrassment or bullying) and that the problem was damaging to that individual’s health but the employer then failed to address the problem.
This is where many claims fall down, because human nature is such that when we can’t cope, the last thing we do is admit it, even to those close to us, let alone to an employer when we might be at risk of losing our jobs.
Crucial to any claim for compensation is supporting evidence, preferably in writing. In a claim for compensation for work related stress induced psychiatric illness, the key evidence is the evidence which puts the employer on notice that the individual is suffering from stress due to a problem at work, and that the stress is starting to damage that individual’s health.
Evidence can take the form of a written complaint made by the individual or, perhaps more likely, a sick note issued by the individual’s doctor in the event that the individual has ahd to have some time off work. Of course that sick note must make it quite clear that the cause of absence is “stress at work” not just “stress” or “emotional problems”, neither of which tell the employer that the problem is at work.
However, there must also be evidence to show that, once the employer was put on notice of the problem, they have had the opportunity to address it, but failed to do so. In many cases, the first the employer knows of the problem is when the individual is on sick leave and they receive a sick note and the individual never actually returns to the job. The employer is therefore never given the opportunity to deal with the problem, in which case the employer will not be held liable.
Liability can also be avoided by an employer if they can demonstrate that they did address the problem, but it was simly not reasonably practicable to take any active steps to alleviate the problem. For example, if only one bus driver out of a workforce of 300 cannot cpe with the route schedule, it would simply not be economically viable for the employer to redesign the route schedule just for that one employee, and no Court would hold them liable for npt so doing.
This is the only area governed by statutory regulation, being the Protection from Harassment Act 1997, as confirmed by the House of Lords decision in Majrowski v Guys & St Thomas NHS Trust 2006. The House of Lords upheld the decision of the Court of Appeal that the employer was vicariously liable for the actions of its employee. The definition of harassment was defined as ‘conduct, on at least two ocassions, targeted at an individual, which is calculated in an objective sense to cause the individual distress and which is objectively judged to be oppressive and unreasonable’.
In theory this meant it was potentially far more straightforward to puruse a compensation claim for anxiety caused by harassment under the Act than trying to establish a negligence claim for compensation for psychiatric injury.
However, the Courts have gone further still in interpreting the Act and in the case of Conn v Sunderland City Council 2007, the Court of Appeal held that for an offence of harassment to be made out there had to be a course of conduct which, under Section 7 (3) of the Act, had to be at least two incidents and that a civil claim for harassment was only available for conduct that amounted to a breach of section 1. The basis for deciding whether the conduct complained of courld amount to a civil claim was whether the incidents were of such gravity as to justify the sanctions of the criminal law.
It would seem therefore that only the most serious cases involving two or more incidents of either actual assault or the threat of violence to the person would be enough to satisfy the definition under the Act.
Further evidence still that the Judiciary are reluctant to allow these types of claims to escalate, as are employers insurers, and for that reason many out of Court settlements contain confidentiality clauses. Those which do not have such clauses often receive very inaccurate media attention which results in members of the public being led to believe that, if they suffer stress at work they can make a claim, but for reasons set out above, that is simply not the case.
Making a claim for work related stress induced psychiatric illness is a complex and difficult process and is likely to remain so for the foreseeable future.