According to a recent report by the Royal College of Psychiatrists, “almost one in four British adults… experience a diagnosable mental health problem at any given time”. Howard Hymanson, partner at Harbottle & Lewis LLP, looks at when employers might be liable for stress-related injury at work.
Employer’s duty of care
Over recent years, HR professionals will have noted an increase in the prevalence of employees alleging that their employers have caused or exacerbated conditions such as anxiety and depression.
Employers are under a direct duty to take all reasonable care to ensure that their employees are not exposed to the risk of psychological harm during the course of their employment.
A breach of this obligation may give rise to a personal injury negligence claim, as well as an action for breach of contract.
While it is generally understood that employers are clearly exposed to the risk of claims of this nature, there has remained a great deal of uncertainty as to the point at which liability may be said to arise.
The situation has not been helped by the fact that the case law in this area has been rapidly developing and there have been a number of conflicting decisions.
Was injury foreseeable?
A key area of uncertainty has been whether or not the same approach to the issue of liability should apply where the employee has become ill over a period of time due to their inability to cope with the ongoing pressures of the job (such as working hours or work demands), as opposed to the situation where illness arises suddenly as a result of a one-off act of unfairness, such as the imposition of an unfair disciplinary sanction.
In November 2014, the Court of Appeal handed down its important judgment in Yapp v FCO and authoritatively decided that the same approach should now apply to both of these situations. In essence, an employee will now only be able to recover damages if it was “reasonably foreseeable” that an employer’s actions may cause a stress-related injury.
It will not usually be foreseeable unless there are indications, of which the employer was or should have been aware, of some problem or psychological vulnerability on the part of the employee.
An employer is generally entitled to expect ordinary robustness on the part of its employees when they are faced with the pressures of the job or disciplinary proceedings. However, an employer will need to be vigilant when presented with less obvious indicators of stress, such as where the employee begins to behave erratically in the manner in which they deal with other colleagues, or becomes emotional at work.
Clearly, if an employee has a recognised mental illness then not only will an employer’s failure to comply with its duty to make reasonable adjustments (under the Equality Act 2010) expose the employer to a disability discrimination claim, but the employer will also be left very much exposed to a successful personal injury claim for breach of the duty of care.
Steps for employers to take
So what steps or measures should an employer put in place when managing employees who may be exhibiting signs of stress or who have a recognised mental health condition of which it is aware? These situations are always fact specific, but an employer should begin by asking: what would a reasonably prudent employer do, taking positive thought for the safety of its employees, in the light of what it knows or ought to know?
- familiarise managers with, and implement, the Health and Safety Executive’s Management Standards for work-related stress;
- provide particular stress awareness and management training on the potential dangers of prolonged occupational stress;
- ensure that an employee on their return to work following long-term sickness absence has a formal meeting to assess what steps are going to be put in place to ease them back into work on a graduated basis;
- monitor working hours to ensure the employee is not working excessive hours and relieve them of some of their duties;
- engage with the Fit for Work scheme, which provides an occupational health assessment and health and work advice to employees and employers to help people return to or stay in work after an illness;
- offer a confidential counselling service, if one is available, but should not assume that their duty of care is discharged by doing so;
- where there are indications/complaints of bullying or harassment, consider, if practicable, changing the employee’s line manager or moving them to another part of the business; and
- obtain independent medical advice in connection with the management of the employee’s ongoing illness, if applicable.
Risk of illness arising from disciplinary proceedings
Another common area of difficulty is the risk associated with illness caused by the commencement or pursuing of disciplinary proceedings. The Court of Appeal in Yapp v FCO pointed out that a stress-related injury claim could succeed where the employer’s conduct was so devastating in its unfairness that even a person of ordinary robustness, with no prior vulnerability, may develop a depressive illness as a result.
There is little guidance indicating what extra precautions an employer should take when conducting disciplinary proceedings where it is known that the employee has a prior vulnerability.
However, while there may be a temptation to bypass a formal disciplinary process in order to avoid exacerbating an illness, this should be avoided. In order to minimise the risk of claims in this situation, an employer should:
- obtain occupational health input;
- provide more advance notice of an investigation meeting and of the substance of matters to be discussed with the employee;
- conduct some preliminary investigation of allegations, avoiding “knee-jerk” reactions and taking into account, where possible, the employee’s critique of them before making a decision to withdraw or suspend an employee; and
- provide an employee with the option of being accompanied to meetings throughout the disciplinary process.