The New Personal Injury Claim?

Until some years ago the concept of employers’ liability in respect of their employees had generally been related to physical injury claims. However, in more recent times considerable attention has been focused upon employers’ liability for the physical and psychological (or psychiatric) illness caused by stress suffered by employees in the course of their employment.

What is Workplace Stress?

Workplace stress arises when the demands of a person’s job and/or the working environment exceed the person’s capacity to meet them. For example, this could be caused by lack of training, poor workplace environment (noise, heat, humidity, lack of space etc.), poor working relationships, dull repetitive work or highly demanding tasks. In addition, the interaction between managers and their subordinates is increasing through email, resulting in less social interaction.

While the pressure of challenge can be a positive force in the workplace, when demands become excessive they may create a stress process that threatens the employee’s physical and/or psychological well being. The effects of stress within the workplace may result in higher than average staff turnover, increased levels of absenteeism, low morale, excessive accident rates and ultimately the possibility of legal action being taken against the employer.

Large compensation Awards

Employers mistakenly assume that Stress Related Claims are “employment claims” and are therefore of relatively small compensation value. These types of claims are however generally pursued as Personal Injury claims through the High Court and have the potential to be enormous. For example, the victim of sustained bullying while working for Mercury Mobile Communications Services, part of the Cable & Wireless Group, was awarded over £370,000 in compensation by the High Court in England in 2001.

Potential Breach of Health & Safety Legislation

The Health and Safety legislation in both the Republic of Ireland and Northern Ireland obliges employers to identify and safeguard against all risks to health and safety. Controlling workplace stress is no more optional than the control of any other hazard. If an employer fails in its duty of care to employees this may result in a civil action for compensation by the employee but it may also be a breach of the criminal law.

Potential for Disability Discrimination Claims

In addition to the Employment Equality legislation in each jurisdiction stress claims have potential implications for such workplace claims by providing other potential avenues of legal redress for the stressed employee if the stress complained of is caused by discrimination under any of the grounds cited in the discrimination legislation. For further information see our articles on Occupational Stress Claims.

It should be noted that the duty upon an employer is not an unlimited one. The onus is on the employee to show that the injury suffered was foreseeable and was caused by conditions in the workplace as opposed to some other factor. That is, it must be work-related and not, for instance due to domestic issues. In addition, the employee must prove a recognisable psychiatric illness. The employer will then be required to show that he acted reasonably in all the circumstances.

What Steps Can Employers Take to Safeguard Themselves?

Where employers are aware that a workload, or conditions of work, are particularly stressful, measures should be taken to reduce the workload and/or improve conditions.

Problems are more likely to come to light, and be dealt with effectively and in a timely fashion if the organisation adopts a clear policy on occupational stress and stress prevention as part of its management arrangements and as part of its safety policy. The key to the success of the policy is to show that it has the full support and commitment of senior management. This will invariably involve action to raise awareness of the issue. The policy should acknowledge that work related stress is not a personal problem nor a weakness but an issue which the organisation as a whole can address.

If stress is giving rise to risks in the workplace the employer must address it not only in a policy as outlined above but also in the organisation’s Safety Statement. The Safety Statement should also emphasize the duty of care imposed on employees to take care of their own health and safety whilst at work.

Employers Must Exercise Caution in Dismissal Cases

In the Irish case of Croke v. Oran, heard on the 29th November 2007, which concerned the failure of an employer to take into account properly the fact that a key employee was suffering from depression, the employee was awarded over €35,000 in compensation. The claimant (employee) who suffered from a depressive illness was dismissed by the respondent (employer) after being promoted to a more senior position. The Respondent conceded from the outset that the Claimant had been unfairly dismissed but contended that as the Claimant had been unavailable for work since the dismissal, he had suffered no loss attributable to the dismissal. The Claimant argued that the treatment he received from the Respondent during the period of employment when he was promoted had contributed to his current stress related illness.

The Tribunal determined that the Claimant had made the Respondent aware of his depressive illness and that the Respondent had nonetheless placed more responsibility on the Claimant by promoting him. The Tribunal also determined that the Respondent had not made a genuine effort to assist the Claimant with the increasing level of stress that resulted from the increased demands of his new role, such as providing training or an in-service course to assist with his promotion.

Check Your Employers liability Policy to Ensure Cover

Employers should check the company’s employer liability insurance to confirm that it covers awards in such cases, since psychiatric illness, by reason of the debilitating effect on the sufferer, may result in an enormous claim for loss of future earnings capacity. If in doubt, consult your Insurer.

Conclusion

Stress in the workplace is an important health and safety issue which cannot be ignored. By implementing appropriate measures, including measures such as those outlined above, employers should be able to reduce the risk of potential litigation.

For further information generally in relation to this emerging area of the law see our articles on Occupational Stress Claims.

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