Work-related stress - employee rights

By Ivor Adair

An unwelcome consequence of the current economy is that many employees find themselves trapped in a demanding work culture, working without sufficient breaks, late into the evening or over lunch - or even the weekend. Stress is often the result and, left to fester and worsen, this can result in health problems, in some cases severe mental illness. The stigma attached to mental health disorders in the workplace compounds the problem.

Stress is a slippery concept which can mean different things to different people. It is not the same as 'pressure' - which very often pushes individuals to excel. Stress may be described as the adverse reaction people have to excessive pressures or other types of demand.

Stress is sometimes accompanied by physical and/or psychological problems. Regrettably, some employees try to hide their stress symptoms at work for fear that they will be seen as weak or unable to cope.

No legislation in the UK specifically deals with stress. However, employers do have a duty of care to employees. An employer who is not vigilant and does not identify staff who are suffering from stress may find that an employee falls seriously ill. In some circumstances this may result in a civil or employment tribunal claim.

Your employer must take reasonable care for your health and safety. If you have become ill to the extent that you develop a diagnosable psychiatric illness, for example depression, and if you can show that your employer breached its duty of care to you, that your injury was reasonably foreseeable and that your injury resulted from that breach, then you may have a claim in negligence.

The courts have confirmed in principle that a claim can succeed where an employee is able to show that it was reasonably foreseeable that the employer’s requirement for excessive work hours would damage health. In Mark Hone v Six Continent Retail, the Court of Appeal upheld a finding that a pub landlord’s psychiatric injury had been caused by excessive hours and that injury was foreseeable. In practice however, it is extremely difficult to establish that an injury was reasonably foreseeable.

If you have had a mental breakdown and return to work following a period of sickness absence, your employer will know of a risk of repetition of the breakdown. If a second breakdown occurs it may be easier to establish injury was reasonably foreseeable. As soon as your employer is put on notice that you are suffering from mental illness it is obliged to take action to avoid exacerbation of that illness.

The Working Time Regulations 1998 give you the right to a 48 hour limit on your hours per week, along with daily and weekly rest periods. However, many work long hours and opt out of the 48 hour limit by agreement. There remains a long hours culture in the UK, despite the rights provided by the Regulations. This is very often a significant contributing factor to occupational stress.

If you are disabled for the purposes of the Equality Act 2010 (the definition of disability is wide and includes mental impairments) you could argue that your employer is obliged to make reasonable adjustments where any arrangement made by your employer places you at a substantial disadvantage compared to non-disabled employees. If your impairment is stress related, adjustments could include a reduction in working hours, reallocation of excessive of work, further supervision, or counselling. This can sometimes be an effective negotiating tool where the objective is to reduce an excessive workload. Disability discrimination claims can also be brought by employees who have less than one year’s service and are not eligible to bring an unfair dismissal claim.

If you have more than one year’s service and face unreasonable behaviour by your employer, you may in some limited circumstances be able to establish that the behaviour is so unreasonable it amounts to a fundamental breach of the implied term of mutual trust and confidence between you, entitling you to leave employment and claim unfair dismissal (constructive dismissal), along with your notice monies.

Stress in the workplace remains a big and growing problem. If your employer is sensitive to the risks of staff being under stress and takes steps to reduce or avoid it or make adjustments where appropriate, this will often increase staff productively and efficiency as well as their general well being.

Ivor Adair is a solicitor in the employment team at Russell Jones & Walker.

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