WORK RELATED STRESS – A LEGAL PERSPECTIVE RCN UK Safety Representatives’ Conference: 8 November 2008 Robert Carr WS SSC Solicitor Advocate Accredited Specialist in Personal Injury & Medical Negligence Anderson Strathern Solicitors for RCN Scotland Solicitors for Mental Welfare Commission National Stress Awareness Day 5 November 2008

WORK RELATED STRESS CASES Defining Occupational Stress The Legal Issues Towards a Safety Culture

WORK RELATED STRESS What we are considering NO Physical injury with psychiatric harm Potential victim of physical harm then psychiatric harm Shock cases – witnessing horrific events, rescuers etc YES Psychiatric injury owing to continuing exposure to stress Harassment at hands of other workers for whom the employer is vicariously liable resulting in psychiatric injury

DEFINING OCCUPATIONAL STRESS Work related stress has been defined by the Health and Safety Executive as “The adverse reaction people have to excessive pressures or other types of demand placed on them” (HSE). Work related stress is to be distinguished from the beneficial effects of reasonable pressure and challenge

DEFINING OCCUPATIONAL STRESS The scale of the problem: - In 2007/08 an estimated 442,000 individuals in Britain, who worked in the last year, believed that they were experiencing work related stress at a level that was making them ill, according to the Labour Force Survey (LFS) -The 2007 Psychosocial Working Conditions (PWC) survey indicated that around 13.6% of all working individuals thought their job was very or extremely stressful -Estimates from the LFS indicate that self-reported work related stress, depression or anxiety accounted for an estimated 13.5 million lost working days in Britain in 2007/08 -Occupation groups containing teachers, nurses and housing and welfare officers, along with certain professional and managerial groups have high prevalence rates of self-reported work related stress according to the LFS. The LFS also shows people working within public administration and defence to have high prevalence rates of self reported work related stress. -The direct cost of stress related illness absence is estimated to be £10 billion per annum

THE LEGAL ISSUES Civil Damages Claims Unfair Constructive Dismissal HSE and Prevention National Health Service Injury Benefit

THE DAMAGES CLAIM GYMKHANA n Injury n Time Bar n Proof of Facts n Proof of Fault - Breach of Common Law - Breach of Common Law - Breach of Enacted Law - Breach of Enacted Law n Causation n Loss, Injury, Damage

COMMON LAW An employer’s duty of care extends to taking reasonable care not to subject the employees to working conditions which are reasonably likely to cause them psychiatric illness There must be foreseeability of injury – the employer knew or ought to have known In the light of that risk they failed to take reasonable steps to prevent it The claimant must have sustained a recognised psychiatric illness.

THE EMPLOYER’S DUTY TO TAKE REASONABLE CARE “ill-health resulting from stress caused at work has to be treated the same as ill-health due to other, physical causes present in the workplace. This means that employers do have a legal duty to take reasonable care to ensure that health is not placed at risk through excessive and sustained levels of stress arising from the way work is organised, the way people deal with each other at their work or from the day to day demands placed on their workforce”. “Stress at work: A Guide to Employers” HSE 1995

ENACTED LAW Health and Safety at Work Act 1974 (Section 47) Management of Health & Safety at Work Regulations 1999 (Reg 22) Right of civil action – from 27 October 2003

ENACTED LAW Protection from Harassment Act 1997 Disability Discrimination Act 1995 Sex Discrimination Act 1975 Race Relations Act 1976 Working Time Regulations 1998

DAMAGES CLAIMS Johnstone v Bloomsbury Health Authority [1992] QB333 Petch v Customs & Excise Coms [1993] ICR789 Walker v Northumberland County Council [1995] IAllER 737

DAMAGES CLAIMS Ward v Scotrail Railways Ltd 1999 SC 255 Rorrison v West Lothian College & Lothian Regional Council 2000 SCLR 245 Fraser v The State Hospitals Board for Scotland 2001 SLT 1052

DAMAGES CLAIMS Cross v Highlands and Islands Enterprise – [2001] IRLR 336 Hatton v Sutherland [2002] 2 ALL ER 1 Pratley v Surrey CC [2003] EWCA CIV 1067 Barber v Somerset County Council [2004] UKHL13 Majrowski v Guy’s and St Thomas’s NHS Trust [2005] EWCA Civ 251 Hone v Six Continents Retail Ltd [2005] EWCA Civ 922 Daw v Intel Corporation [2007] ICR 1318 Dickins v O2 [2008] EWCA Civ 1144

DAMAGES CLAIMS The 16 Hatton Principles Lady Justice Hale 1.There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do (para 22). The ordinary principles of employer’s liability apply (para 20).

DAMAGES CLAIMS The 16 Hatton Principles 2.The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable (para 23): this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors) (para 25).

DAMAGES CLAIMS The 16 Hatton Principles 3. Foreseeability depends upon what the employer knows (or ought to reasonably know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large (para 23). An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability (para 29).

DAMAGES CLAIMS The 16 Hatton Principles 4.The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.

DAMAGES CLAIMS The 16 Hatton Principles 5. Factors likely to be relevant in answering the threshold question include: (a)The nature and extent of the work done by the employee (para 26). Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?

DAMAGES CLAIMS The 16 Hatton Principles 5.(b)Signs from the employee of impending harm to health (paras 27 and 28). Has he aparticular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic ofhim? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

DAMAGES CLAIMS The 16 Hatton Principles 6. The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers (para 29).

DAMAGES CLAIMS The 16 Hatton Principles 7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it (para 31). Someone may be at the end of their tether, there may be a clear indication of impending illness and Dickins

DAMAGES CLAIMS The 16 Hatton Principles 8.The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk (para 32).

DAMAGES CLAIMS The 16 Hatton Principles 9. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties (para 33).

DAMAGES CLAIMS The 16 Hatton Principles 10.An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (para 34).

DAMAGES CLAIMS The 16 Hatton Principles 11.An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty (paras 17 and 33) This is not however a panacea by which employers can discharge their duty of care in all cases, see Daw and Dickins

DAMAGES CLAIMS The 16 Hatton Principles 12.If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job (para 34). That step may be to refer the employee to Occupational Health and send them home, see Dickins

DAMAGES CLAIMS The 16 Hatton Principles 13.In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care (para 33).

DAMAGES CLAIMS The 16 Hatton Principles 14.The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm, it must be stress- related illness (para 35). There may be an “obvious inference” Dickins

DAMAGES CLAIMS The 16 Hatton Principles 15.Where the harm sufferred has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment (paras 36 and 39). Sometimes apportionment may not be appropriate where it is not scientifically possible to say how much the contribution is Dickins and Bailey v Ministry of Defence [2008] EWCA Civ 883

DAMAGES CLAIMS The 16 Hatton Principles 16.The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event (para 42).

THE TRUE COST OF WORK RELATED STRESS Compensation Pain and suffering – solatium/general damages Wage loss – past/future Necessary and personal services Loss of pension rights Loss of employability Care and nursing costs Other patrimonial losses

THE TRUE COST OF WORK RELATED STRESS Compensation Court expenses Court time Sick pay State Benefits Loss of training investment Loss of productivity Low morale Reduced customer/patient satisfaction

THE TRUE COST OF WORK RELATED STRESS Loss of potential The human costs - despair and depression - break-up of family Retraining Adverse publicity and reputational damage The Coroners or Fatal Accident Inquiry Increased premiums Prosecution – you in the “Dock”

UNFAIR CONSTRUCTIVE DISMISSAL Breaches of express or implied contractual duties British Aircraft Corpn Ltd –v- Austin [1978] IRLR 332 Waltons and Morse –v- Dorrington [1977] IRLR 488 solicitors’ smoking secretaries Waters –v- Commissioner of Police for the Metropolis [2000] IRLR 720 Breach of duty not to prevent mental harm caused by sexual harassment.

UNFAIR CONSTRUCTIVE DISMISSAL Employment Rights Act 1996 Resignation and Claim to Employment Tribunal Compensation Johnson v Unisys Ltd [2001] UKHL 13 Dunnachie v Kingston upon Hull CC [2004] UKHL 36 CIV84 Legal Expense Time

EXPRESS AND IMPLIED CONTRACTUAL DUTIES To take reasonable care to ensure the health and safety of the employee Trust and confidence Provide and monitor, so far as reasonably practicable, working environment suitable for performance of contract of employment Deal with grievances promptly and in reasonable manner

HSE AND PREVENTION The Health and Safety at Work Act 1974 Section 2 requires every employer to ensure so far as is reasonably practicable the health, safety and welfare at work of all its employees

HSE AND PREVENTION The Health and Safety at Work Act 1974 Section 3 requires employers to do what is reasonably practicable to protect people not employed by them from risks to their health and safety arising from the employer’s undertaking

HSE AND PREVENTION Management of Health and Safety at Work Regulations 1999 Key duties: to assess risks to health and safety of employees and anyone else who may be affected by the employer’s undertaking so that necessary preventative and protective measures can be identified….

HSE AND PREVENTION Management of Health and Safety At Work Regulations 1999 Key duties: to make arrangements to put into practice the health and safety measures that follow from the risk assessment (and to record these arrangements if the employer has 5 or more employees)

HSE AND PREVENTION Management of Health and Safety at Work Regulations 1999 Key duties: to provide appropriate health surveillance where the risk of assessment shows this to be necessary

HSE AND PREVENTION The Health and Safety at Work Act 1974 ……is a criminal statute

PROSECUTION OF HEALTH SERVICE EMPLOYER Health and Safety at Work Act 1974 Riddor 1995 Management of Health and Safety at Work Regulations 1999 Health Safety Executive Environmental Health Officers of local authorities Inspection, Improvement, enforcement Prosecution Fine Imprisonment HSE served improvement notice on West Dorset General Hospitals NHS Trust.

National Health Services Injury Benefit

TOWARDS A SAFETY CULTURE Understand the consequences personal and legal of workplace stress. Understand the business case for a safe and healthy work force Risk assessment, identify, assess, adjust, re- assess Develop a stress policy tackling organisational and individual issues Recognise symptoms early

TOWARDS A SAFETY CULTURE Manage stress rapidly and appropriately Occupational Health Counselling treatment and advice Managing return and rehabilitation Education and training The Organisational Stress Audit Senior Manager’s committed to reducing workplace stress, allocating resources for policies and practice

TOWARDS A SAFETY CULTURE What safety representatives can do. - encourage members to speak up as soon as they feel that their working environment is beginning to affect their health. - use the facilities laid out in the Safety Representatives and Safety Committees (SRSC) Regulations and the Management of Health and Safety at Work Regulations to tackle work related stress

TOWARDS A SAFETY CULTURE - Investigate potential hazards and complaints from their members and receive information from employers to protect members health and safety - Liaise with management to carry out risk assessments including reviewing absence figures and linking these with other policies that may be available

TOWARDS A SAFETY CULTURE -Encourage members to keep a written records of any problems and to put things in writing to management so that there is evidence of that problem and that management is aware of it. -Encourage the development of an effective risk management approach to workplace stress with Education, Training, Audit and appropriate Policies and Practice -Refer early for legal advice – these time limits can be short

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