A recent High Court case has shed more light on the circumstances in which an employer may be liable for psychiatric illness caused by occupational stress.
In the case of Easton v B&Q plc, the manager of a retail outlet became ill through occupational stress and alleged this was due to the negligence and/or breach of statutory duty on the part of B&Q.
In particular, Mr Easton’s case focused on the lack of risk assessment for stress by the employer.
Background to the case
Mr Easton had initially been away from work with depression for about five months and received medication and therapy. He returned on a phased basis at a less busy store that was also nearer to his home. However, after a short time he was recertified as unfit for work due to depression, and launched a claim.
At trial, the judge relied upon the 2002 case Hatton v Sutherland which ruled on claims by employees for damages in respect of psychiatric injury caused by stress in the workplace. The question in this case was whether the injury was ‘reasonably foreseeable’ by the employer.
According to the trial judge, an employer has no general obligation to make searching or intrusive enquiries and may take at face value what an employee tells him. In particular, an employee who returns to work after a period of sickness without qualification is usually implying that he believes himself to be fit to return to the work he was doing before.
On the facts of the case Mr Easton’s claim failed at the first hurdle ‘foreseeability’ in respect of his first breakdown. This was because of his long managerial career in charge of large retail outlets with no psychiatric history. In terms of the relapse he suffered, B&Q clearly now knew he had suffered a psychiatric illness. But the fact he was still taking medication was not pivotal as to how his employment should have been handled – the point being that there are many people holding down demanding jobs who still require medication. On the facts, given the high standard of proof required, the relapse was also not foreseeable by the employer.
There remained the issue of the lack of a general risk assessment. However, the court heard B&Q had a document about managing stress, inviting individuals to identify and notify the employer of any symptoms they were suffering. The trial judge was of the opinion that Mr Easton had made insufficient efforts to do this and therefore concluded that, on the facts of the particular case, a wider risk assessment would have had no effect on the outcome.
The lessons for employers and my five top tips
Clearly, stress in the workplace is a major risk for employers. Not only does it significantly increase the risk of employment claims, it has serious ramifications for employee health and can damage your business in terms of productivity, reputation and relationships.
This sounds obvious, but the best way to reduce the risk of employment claims relating to occupational stress is to reduce the likelihood of stress occurring in the first place.
This is not necessarily about creating a more relaxed workplace. We all know that in many occupations, this is simply not possible. It is more about identifying and recognising the causes of stress, putting measures in place to mitigate it, and creating an environment where employees are aware of their own responsibilities in dealing with stress.
Here are my five top tips for reducing workplace stress and, subsequently, the risk of stress-related employment claims:
1. Become stress aware
The first step to reducing stress in the workplace is having a good understanding of what stress actually is. At the risk of oversimplifying it, stress can be defined as a feeling of being under too much mental and emotional pressure. The Stress Management Society defines it as “a situation where demands on a person exceed that person’s resources or ability to cope”. The feeling of stress can be a trigger for other psychiatric illnesses, such as anxiety and depression. It’s an issue that has to be taken seriously by senior management who may wish to consider stress awareness training courses or online resources. Being able to demonstrate you’re a ‘stress aware’ business will also strengthen your ability to defend stress-related employment claims.
2. Help employees recognise and report stress
Some people look on their ability to handle stressful situations as a badge to be worn with pride. The trouble with this is that others may feel less able to admit to being stressed, as if it is a sign of weakness. For example, they may feel unable to report their feelings of stress for fear of harming their prospects of promotion. However, just as businesses take steps to minimise the risk of physical injury, they must also look to reduce the prospect of psychological injury. Creating an environment where workloads are effectively managed and employees feel able to communicate concerns over excess workload should be a priority.
3. Conduct a risk assessment for stress
In the case above, B&Q’s lack of a risk assessment for stress did not actually prevent it winning, but if it’d had one there’s a good chance the claim wouldn’t have ended up in court in the first place. Conducting a thorough risk assessment for stress in your business will ultimately lead to a healthier organisation that’s also at a much smaller risk of employment claims. The Health and Safety Executive (HSE) website has a great section detailing its Management Standards for reducing work related stress, which offer a great starting point if you don’t already have a risk assessment in place.
4. Ensure you can spot the warning signs of stress
High staff absence rates, arguments between staff members, lack of communication, individual mistakes, insubordination, or an increase in customer complaints can all be symptoms of an over-stressed workplace. Business owners and managers need to be able to spot these warning signs so that any issues with stress are addressed at the earliest possible stage. Again, the HSE website is a useful resource which offers practical advice for people at all levels of an organisation, including CEOs, directors, HR managers, line managers and so on.
5. Have a robust stress policy as part of your staff handbook
Ensure your staff handbook has a stress policy that clearly communicates what you will do to help employees manage stress and what’s expected from employees themselves when it comes to reporting stress. Of course, you have to ensure that all employees have received and read the stress policy. This is what saved B&Q’s skin in the case above and it will be a major part of your defence if you find yourself on the wrong end of an employment claim for occupational stress.
For more information on the law surrounding stress in the workplace, or any other employment law matter, contact Roger Spence on 01772 258321. Roger is a director at Harrison Drury’s head office in Preston, but the firm also have lawyers in Lancaster, Clitheroe, Garstang and Kendal.