Andrew Egan, employment lawyer and Michael Berrett, head of litigation at Oxfordshire firm, Charles Lucas & Marshall explain why employers and employees need to know their rights when the issue of stress arises at work.

Around 6.5 million working days are lost to British industry due to stress, depression and anxiety.

Figures, recently issued by the Health and Safety Executive, would seem to indicate that the price we are paying for a higher material standard of living is a more stressful life.

Stress at work is moving higher up the legal agenda. It is relatively new territory for lawyers.

Lawyers operating in courts and tribunals are very familiar in handling compensation cases from employees for unfair dismissal or discrimination based on disability, gender, or race.

However, compensation awarded by industrial tribunals is only geared to compensate for short term or temporary loss of earnings. There is no power to compensate for pain, suffering or loss of earnings resulting from a stress-related condition.

Employees are looking to the civil courts, using the law of negligence, to obtain more adequate compensation.

A recent Court of Appeal case (Hatton v Sutherland) has brought ‘stress at work’ closer to the surface. It sets out the current thinking as to what a claimant employee has to prove in order to be successful in a claim for compensation.

The Court found that an employer has a general duty to take reasonable care to ensure an employee’s physical and mental well being. The Court ruled that no job is more stressful than any other. It is the way that the job is performed that leads to a perception that some jobs are more stressful than others. This will involve making a comparison of the demands made of employees in comparable positions.

An extreme example is to be found in an earlier case where a social worker had worked over 100 hours overtime within a short space of time and actually wrote to his employers requesting a week’s time off in lieu of the overtime.

This was an express communication to the employer that he was exhausted and in need of a break. In this instance, the social worker was successful in making his claim.

Once an employee has mentioned their state of mind, the duty is on the employer to take reasonable and proportionate steps to try to prevent harm occurring.

For the employee to establish that the employer’s actions – or inactions – have led to deterioration in health there are a number of factors that must be established.

Firstly, the employer must have been aware of the pressures of the workload and paid no heed to its effect on the employee.

Secondly, the employee must show that it was reasonably foreseeable that the workload pressure would cause the employee to suffer ill health.

Thirdly, the employee would have to show that the employer must have been aware of all the consequences that would flow from their treatment in the workplace.

Stress-related claims are particularly difficult to prove. Despite the publicity surrounding the issue, the only in-roads that have been made are in the fields of discrimination laws. Unless the claim is based upon sex, race or disability discrimination, an Employment Tribunal will not make an award for injuries to feelings of pain and suffering.

There are, however, a number of claims being made in the Employment Tribunals where employees have issued claims for constructive dismissal based on injuries to feelings.

However, unless there is evidence of recognised psychiatric injury having been caused by the dismissal itself, Tribunals have been unwilling to explore the issue of compensation in this area.

Increasing numbers of lawyers now believe the courts will have to re-examine the whole area of stress at work. The UK workforce is the hardest working in Europe – hence the number of days lost to stress-related illness.

It is a complex area. On the one hand, employees need all available compensation for their future financial security; on the other hand, lost working days, time spent on human resources issues and paying for insurance cover are expensive for employers, both in terms of hard and soft costs.

There are interesting times ahead for both employment and personal injury lawyers as we see a growing awareness of the implications of stress overload.

Charles Lucas & Marshall has produced some guidelines and a stress policy for employers who wish to treat the issue seriously. There are simple checks, which can be made. If you would like a copy or you would like to discuss this issue, please contact Andrew Egan on 01793 511055 or andrew.egan@clmlaw.co.uk