The ever increasing boundaries of stress

In recent years, we have seen a substantial increase in the number of claims where issues of bullying, harassment and stress have been considered by the courts and employment tribunals.

In terms of litigation, the cases initially focused on claims for personal injury. In bringing claims for negligence, claimants would try to establish that the actions of the employer represented a breach of duty of care towards them. As a direct consequence of this breach the claimant/employee would seek to allege that they had suffered a foreseeable personal injury, namely stress/depression and therefore should be compensated.

The issue of stress, bullying and harassment in the workplace took on an extra dimension in the case of Majrowski -v- Guys & St Thomas NHS Trust. In this recent House of Lords decision an alternative course of action for employees was created who have been subjected to harassment, namely a right to bring a claim against their employer under the Protection from Harassment Act 1997. The House of Lords held that an employer can be vicariously liable under the legislation for acts of harassment committed by an employee in the course of their employment. An employee will need to prove only that he or she has suffered from anxiety as a result of harassment whereas under common law an employer must prove that the harassment resulted in a recognisable psychiatric condition.

Other angles that have been utilised by employees have included establishing that the stress or depression could be a disability, therefore attracting protection under the Disability Discrimination Act 1995. This will mean that an employer cannot treat the person less favourably, directly discriminate against them and/or may be under a duty to make reasonable adjustments to the workplace. Obviously, there are situations where employees have legitimate claims and, incidents of bullying and harassment should not be tolerated as a matter of good practice. Of added difficulty is the situation where an employee claims that the stress has been caused by the employer and is on long-term sick.

There has been an interesting recent case dealing with such circumstances, namely, Royal Bank of Scotland Plc -v- McAdie. This is an Employment Appeal decision. Here, the employee was on long term stress related sickness absence caused by bullying at work and the employers mishandling of her grievance. Eventually, she was dismissed for incapability. The medical evidence showed that there was no prospect of her ever returning to work and, consequently, an Employment Tribunal decided that her dismissal was unfair as her illness has been caused by her employers unreasonable behaviour. The employer won its appeal against the finding as the Tribunal had made an error of law in holding that the dismissal was unfair simply because her illness had been caused by the employers unreasonable behaviour. The EAT has now held that the fact that the employer caused the incapacity in question does not preclude it from affecting a fair dismissal. The real question is whether or not the employer acted reasonably in all the circumstances in dismissing the employee. The cause of the employee’s capability, however, is a relevant factor for the Tribunal to consider when determining whether or not the dismissal is fair. Therefore, in such circumstances, if the employer is responsible for the employee’s incapacity it should normally be expected to “go the extra mile” in finding alternative employment for the employee or to put up with a longer period of sickness absence than would otherwise be reasonable. However, the employer is not precluded from dismissing the employee.

This is an important case for employers and the lessons are as follows:-

• Be proactive - try and avoid stress being created in the workplace by having good job descriptions; a good grievance procedure so employees can pursue legitimate complaints and, good communication channels between employees and line management to ensure that stress points are quickly identified.
• Get information on the employee’s condition as soon as possible - make sure that your contracts of employment enable you to send the individual for independent health assessment/occupational health assessment so that problems can be identified.
• Think laterally - if there are disciplinary/grievance issues then would it ease the situation if the hearings were held at a neutral venue; written submissions were made rather than oral representations and/or hearings took place over a couple of days rather than a truncated one to two hour session?

The central point is that employers can still dismiss even in the situation whereby they have created the stressful situation, however, Employment Tribunals will closely examine whether there has been full consideration of the employee’s condition and alternative options, before the final decision is taken.

Please contact David Gibson for more information on 0191 233 9762.

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