Workplace stress – employer’s liability

By September 25, 2017Employment, Legal Updates

‘Work related stress’ as a reason for absence can send chills through any HR manager because such sickness absence is not easily cured with a week of rest or a dose of antibiotics.  It requires careful handling, patience and time.

Although stress is not an illness in itself, but a state of mind, it can lead to mental illnesses and physical ailments.

Stress is often brought about in the workplace due to some kind of change.  For example, that might be a change in expectations or management structure. Often there can be relationship issues or communication problems at work which then only add to any personal difficulties an employee may be having at home. Bullying and harassment at work can also be another reason why employees are absent from work with stress.

When managing an employee who is absent with stress, it is worth remembering that every case depends on its own facts and it is important not to make general assumptions. The employer wants to ensure they are dealing with the matter reasonably and fairly, whilst also balancing the needs of the business alongside the risk of any potential claim the employee may have.

Employer’s liability

An employee suffering from stress at work could potentially have claims against their employer, including:

  • Negligence claims in the civil court
  • Harassment claims in the criminal or civil courts under The Protection from Harassment Act
  • Employment tribunal claims

We take a brief look at each of these below.

Negligence

If an employee feels they have been injured because of the way they have been treated by their employer, they must show that the:

  • Injury was foreseeable
  • Employer failed to take reasonable care to eliminate or reduce the risk of injury
  • Injury was caused by that failure

Negligence claims in the civil courts for injuries such as mental illness brought about by stress at work require the employee to jump high hurdles of foreseeability and causation. However, employers must be aware of this and take steps to prevent risks where possible.

The HSE website has some helpful guidance not only on stress and bullying in the workplace, but also on workplace risk assessments. Where an employer has a policy on managing stress at work, or has undertaken risk assessments, clear records should be kept to show how these have been implemented. This will also help the employer to show that they have taken ‘reasonable care’.

Protection from Harassment Act 1997

This Act was originally known for prohibiting stalking but it also covers harassment. Claims could arise under this Act if an employee is absent with work related stress because they have been harassed at work.

Employers can be vicariously liable for the act of their employees, hence why employers should be aware of this.

In order for an employee to bring a claim they must be able to show:

  • a course of conduct (which means at least two occasions)
  • That the conduct amounted to harassment by the employer (causing alarm or distress)
  • And the perpetrator knew, or ought have reasonably known, that the conduct amounted to harassment

As well as being a criminal offence, there are civil remedies available under the Act which include damages for anxiety caused.

To help prevent harassment in the workplace, some employers have harassment and bullying policies which set out what behaviour is expected and what is prohibited. It helps set clear expectations for all employees.

Employment Tribunal claims

If an employee is being harassed at work they could seek redress through the employment tribunal.

If they are being harassed due to one of the ‘protected characteristic’ under the Equality Act 2010 they will have a claim for harassment under this Act, as well as perhaps a discrimination and victimisation claim depending on the facts. The ‘protected characteristics’ are age, disability, gender reassignment, marriage and civil partnerships, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Harassment under the Equality Act is when the conduct has the purpose or effect of either violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

An employer can have a defence against a harassment claim if they can show that they have taken all reasonable steps to prevent the perpetrator harassing the victim. Again, good internal policies and training can assist an employer in such a defence.

Damages awarded in the tribunal are uncapped for injury to feelings but current guidelines recommend awards ranging from £800 for the least serious cases, up to £42,000 for most serious cases.

An employee may also have claims in the employment tribunal for:

  • Constructive unfair dismissal, if the way they have been treated amounts to a breach of the implied duty of trust and confidence.
  • Disability discrimination/failure to make reasonable adjustments, if they have an illness which amounts to a disability under the Equality Act.

As can be seen above, there are many legal and financial reasons which highlight why it is important for employers to deal with cases of stress at work sensitively and carefully. However, preventing incidents of stress at work and bullying in the workplace can lead to a happier, healthier and more productive work force, which must benefit employers and employees alike.

If you require advice on this topic or any other employment law matter, please contact us at linda.wilson@macdonaldoates.co.uk or 01730 268211 to see how we can help.

N.B. Please note that the above information is a guide only and does not constitute legal advice. We recommend seeking specialist legal advice on your own particular circumstances.