At common law, the employer may be liable where the employee suffers stress or a similar mental health condition amounting to a clinically recognised illness if it results from a failure to take reasonable care for their safety or a breach of the duty of trust and confidence. One of the critical questions — and the hurdle which an employee frequently fails to get over — is whether it was reasonably foreseeable that the employee would suffer the kind of harm they did. The sort of situations where this liability has arisen are those where the employee was required to take on an unreasonable workload and began to show signs of strain by taking time off work due to stress (see Hatton v Sutherland [2002] and Hone v Six Continents Retail [2006]).
The provision of a confidential counselling service will reduce the risk of a successful claim, but it will not provide a complete defence where, for example, even if it had been used, the basic problem of an excessive workload would not have been solved (see Intel Corporation v Daw [2007]). While persistent bullying may in certain circumstances give rise to a common law claim, it will generally be easier for the employee to bring their claim under the Protection from Harassment Act 1997. This is because the harm does not have to amount to ‘psychiatric damage’; it does not have to have been reasonably foreseeable; and the employer will be vicariously liable whatever steps he took to try to prevent it. However, the conduct must have been oppressive, unacceptable and sufficiently serious to amount to a criminal offence under the Act (see
Disability claim
Whereas the above claims are concerned with allegations that the employer was responsible for causing the injury in question, the DDA is concerned with rights and obligations where an employee is placed at a disadvantage at work because of a mental impairment, whatever the cause of that impairment, be it work- or home-related.
To come within the Act, the mental impairment must have a “substantial and long-term effect on the employee’s normal day-to-day activities”. As a result of an amendment in the DDA, there is no need for an employee to establish that the stress-related condition amounts to a clinically recognised illness.
The guidance has also been revised and emphasises the effect that the impairment has on day-to-day activities and that “it may not always be possible, nor indeed is it necessary, to categorise a condition as either a physical or mental impairment”.
Accordingly, a wide range of mental conditions that do not amount to a recognised mental illness may constitute a relevant disability, the key question being dependent on whether the condition interferes with normal day-to-day activities. The DDA’s definition of ‘normal day-to-day activities’ is not always easy to apply to stress-related conditions. The most apt activities in this context will the ability to concentrate, remember, learn or understand. But to describe these mental functions as ‘day-to-day activities’ is a somewhat strained use of language and, in any event, they hardly convey the principal symptoms of stress or depression.
Equally, given the subjectivity of these sort of complaints, employees complaining of stress often have little difficulty in highlighting such symptoms and finding an expert willing to attribute them to their stressed-out condition, ie, to their mental impairment. In practice, therefore, the emphasis in stress cases is on the genuineness and severity of the symptoms.
The effect will only be ‘long-term” if it has lasted for 12 months or is likely to last for 12 months. But it is important to remember the following. First, the fact that the condition is being satisfactorily controlled by medication does not take it out of the definition. A person that says their condition is only stable because they are taking their regular dose of anti-depressants may well have a mental impairment. Secondly, if the employee has suffered from the condition and has recovered, they may still be disabled if it is likely to recur. In deciding whether a condition is likely to recur a tribunal is not entitled to have regard to events occurring after the act of discrimination, as in
In practice, if an employee has had a period of ‘mental impairment’, even if relatively brief, it will always be prudent for the employer to proceed on the basis that they may have a relevant disability.
Provided that the employer knows or could reasonably be expected to know that the employee has the disability in question and that, as a result, ‘a provision, criterion or practice’ (PCP) is placing them at a substantial disadvantage in comparison with employees that do not have that disability, the employer has a duty to make reasonable adjustments to prevent the PCP having that effect.
Where working conditions cause or exacerbate an employee’s stress, those conditions may well constitute a relevant ‘practice’ so as to trigger the duty; so in a case where the employee could not cope with the workload and suffered depression as a result, the employer should have considered reducing his duties (see Greenhof v Barnsley MBC [2006]).
In short, whether considering his duties at common law or under the DDA, an employer, aware that an employee is taking time off work due to stress, would be well advised to take positive steps to ascertain the causes of the stress and, in so far as they can be addressed, to take reasonable steps to mitigate them.
Andrew Hillier QC is a tenant at 11KBW.
EmploymentJune2008
