A case to answer in stressed-out Britain?

In today's compensation culture, stress is more than a feeling. But employees hoping to use the law to cash in may find the road...

In today's compensation culture, stress is more than a feeling. But employees hoping to use the law to cash in may find the road to riches is rockier than they think, warns employment law expert Sue Nickson.

Despite recent headlines that employers risk paying out fortunes to stressed employees when they feel that work is getting too much for them, it is in practice far from simple to establish a case and successfully bring a claim against an employer.

The legal position is clear - every employer is under a duty to take reasonable steps to ensure the health and safety of employees in the workplace, ie. a duty of care. The duty extends to both physical and mental health. An employer will be negligent in failing to take such steps if the risk is reasonably foreseeable.

Hurdles to a claim
However, in practice to make the employer legally liable for a stress injury, an employee must show that he is suffering from an actual illness, that it was caused by the employer, and that it was reasonably foreseeable that the employer's actions would cause the illness. These requirements place higher hurdles in the way of a successful personal injuries claim than is generally appreciated.

Case law has reinforced the difference between a psychiatric illness on the one hand and ordinary unpleasant emotions and feelings such as anger, resentment, disappointment, depression or anxiety on the other. As the saying goes, the human condition is "poor, nasty, brutish and short" (much like some of my sister's earlier boyfriends) and nobody has a right to be protected from that.

Where an employee claims "stress", therefore, it pays to take a fairly hard line unless and until you have received evidence that their complaint amounts to a recognised psychiatric illness. This is evidence best obtained from a specialist - employers should not accept a simple "work-related stress" sick note from the employee's GP as deciding the issue.

So establishing a breach of duty is quite a hurdle to start but then the employee will have to show that the employer's breach caused the injury. When looking at causation, it is worth considering all the other different sources of stress that may have an effect upon an employee.

Strain on the train
A recent survey by the International Stress Management Association indicates that some workers in London are made more anxious by their commute than by issues such as work or their children's future. If the employee arrives at work already frothing, metaphorically speaking, the employer should not carry the can for the whole of any subsequent stress complaint.

Where medical evidence is being sought by the employer, therefore, the attention of the doctor used should always be drawn to the possibility that all or a substantial part of the pressure which the employee is under stems from such external factors. It should not be accepted without challenge that because an employee becomes stressed at work this is necessarily the product of any culpable act by the employer.

The last part of the test is that the injury is one which is reasonably foreseeable. The question of what is "reasonably foreseeable" has tortured the Courts for years in the realm of personal injury cases. An employer who does not have specific fore-knowledge of an employee's psychiatric fragility will probably not be expected to foresee that the ordinary wear and tear of office life (including common nasties such as arguments, disciplinary proceedings, tight deadlines and so on) will go beyond merely upsetting an employee, let alone causing them actual mental damage.

Where the employer is aware that there may be weakness, for example where the employee has recently had a breakdown or specifically asked for a less responsible position on health grounds a more circumspect approach will clearly be necessary.

Boozing and smoking
Generally workers within the IT sector may not really consider themselves as potential victims of personal injury. Signs of stress such as drinking more alcohol, smoking more, sleepless nights, may be presumed as quite normal for the job. However things may reach a stage when the thought of project deadlines actually makes a person physically ill.

Stranger things have been known - while it might surprise non-IT that an employee at the cutting edge of technology should feel stressed, recent cases have shown no profession is invulnerable.

Sue Hickson is partner and national head of employment law at commercial law firm Hammond Suddards Edge.

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