Pre-Emptive and Tactical Action in Stress at Workclaims

PRE-EMPTIVE AND TACTICAL ACTION IN STRESS AT WORKCLAIMS

The process of litigation by its very nature, is unpredictable and stressful. The statutoryinstruments which govern the employment relationship, whilst at their core seeking to regulate, protectand assist both employees and employers are subject to interpretation and practically, when applied to the unique and varied facts of each individual case, result in the outcome rarely being certaindue to the number of moving parts that comprise a claim. Despite these uncertainties, litigation before the Courts and Tribunals does not appear to be ceasing or stalling. Litigators therefore may want to consider how they can not only assist their clients at an early stage, but ensure that the facts at least where they can, fall to their client’s advantage.

Whilst it isoftenobvious for employers to understand and accommodate the needs of a physically disabled employee,how to deal with an employee who suffers from a psychiatric injury is more complicated. The issue is often aggravated by a central theme that permeates stress claims (particularly in the current economic climate),namely a genuinely held belief by employees that they may be dismissed, suspended or treated less favorably by their employers if they raise any concerns. This belief often factually serves as a catalyst or a significant contributing factor of a Claimants subsequent breakdownin stress at work claims as theysuffer in silence, and choose not to inform their employer of the difficulties they are facing.

The question therefore is what can be done to alleviate a Claimants concerns but also to protect them in the event that their concerns turn out to be well founded. Whilst it is correct to say that stress at work claims in the County and High Court primarily deal with the aftermath of a breakdown, Claimant’s will find a source of pre-emptive protection in the Employment Tribunals in circumstances where an employer either dismisses or discriminates against a Claimant following their disclosure that they are suffering from a work related stress condition. Further, this pre-emptive protection can in certain circumstances factually assist in the formation of the bedrock of a claim in the County or High Court following a psychiatric breakdown.

Stress as a disability

In most circumstances involving stress at work claims, an employee suffering from stress related symptoms will be suffering from a disability within the meaning of the Equality Act 2010.Section 6 Equality Act 2010 provides that an individual qualifies as having a disability if they have a physical or mental impairment, and this impairment has a substantial or long-term adverse effect on their ability to carry out their normal day to day activities. Schedule 1 of the Equality Act 2010 provides at part 2 (1) (a – c) that the effect will be long term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the remainder of the affected individuals life. Further, under part 2 (2), if any impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is still to be treated as continuing to have that effect if it is likely to recur.

These broad parameters benefit Claimants in stress at work claims for a number of reasons. Firstly, while a Claimant’s condition may be satisfactorily controlled by medication, it does not remove it from the definition as cessation of medication may result in a recurrence of such symptoms. Secondly, psychiatric issues can lie dormant and are often not deemed to have resolved or dissipated. Thirdly if an employee has suffered from a condition but has recovered, they may still be disabled if the condition it is likely to recur. Therefore, in a case where a Claimant who has had a period of “mental impairment” as a result of stress (even if relatively brief), employers should be advised that it is safer to assume that the impairment remains as present for the purposes of the Equality Act 2010, at least until they are presented with medical evidence upon which they can firmly rely to rebut this presumption.

The duty to make reasonable adjustments

Once an employer is notified of an employee’s disability, an employee should expect them to seek to make reasonable adjustments. This is set out in section 20 Equality Act 2010, with the requirement being broken down into three criteria. Firstly (section 20 (3) Equality Act 2010) dictates that there needs to be a “provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”. Secondly (section 20 (4) Equality Act 2010), requires that “a physical feature [must] put a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage” Finally, (section 20 (5) Equality Act 2010) requires that “a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid”.

Whilst it is unlikely that section 20 (4) Equality Act 2010 will apply in stress claims, section 20 (3) and (5) Equality Act 2010 have a clear application and failure by an employer to make such adjustments will invariably be met with a claim for disability discrimination by virtue of section 21 Equality Act 2010.

Reasonable adjustment or the bedrock of a successful claim?

Where ill health arises because of an employee’s work or working environment, employers may be acting unreasonably or even negligently if they do not take reasonable steps to remove the cause. Within the context of the Equality Act 2010, this would be done by way of reasonable adjustments. There is factually a natural intersect between the requirements and application of the Equality Act 2010 and the operation of a stress at work claim based in negligence in the County or High Court. Considering the guidance of Walker v Northumberland CC [1995] 1 All E.R. 737and Barber v Somerset CC [2004] UKHL 13,as well as the operation of theManagement of Health and Safety at Work Regulations 1999,where an employer has identified firstly that their employee is suffering from a disability, secondly that preventative measures within the meaning of regulation 4 Management of Health and Safety at Work Regulations 1999are needed to ensure that the potentialClaimant does not aggravate or worsen their condition, and thirdly, that these procedures are not put in place or followed by an employer, then a Claimant can point to these failings in order to identify an arguable breach of duty of care on the part of their employer.

Recent support for this argument is found in Bailey v Devon Partnership NHS Trust [2014] WL 3387689whereHHJ Cotter Q.C. atparagraph 280 of his Judgment held that “…given the developments in the state of knowledge and information post early 2002, a duty to risk assess in relation to stress in a workplace can now arise at a much lower threshold than that set out by Hale LJ. Such a risk assessment may well then (and this is a question of fact) put an employer on clear notice of the need to take adequate steps to prevent an employee or employees from injury. Such steps may include a more detailed personal assessment… which may then provide indications of impending harm to health arising from stress at work which are plain enough for any reasonable employer to realise that he should do something about it”. Within the context of applying sensible reasonable adjustments in a stress at work case, but also the investigateprocess necessary to identify what adjustments were needed, there is a good argument that the threshold identified by HHJ Cotter Q.C would be reached and crossed.

However, the tactical application of reasonable adjustments goes further, adding to arguments pertaining to the foreseeability of psychiatric injury. In Daniel v Secretary of State for the Home Department [2014] EWHC 2578 (QB)the Claimant’s claim that her injury was foreseeable failed on the basis that there were no outward indicators of the stress she was suffering from. The reason for this was that the Claimant did not wish to appear weakand whilst her stoic nature was commendable, it was to the detriment of her health and also to the success of her claim. Had she made her concerns known at an early stage then the outcome of the claim could have been very different and appears to have been hinted at by Sir Robert Nelson at paragraph 195of his judgment where he stated that “whilst she did not exhibit signs of this or make it known to the Defendant in such a manner as to give rise to a duty, it was, I am satisfied having an effect upon her”. It is certainly arguable that if reasonable adjustments had been sought, then the Defendant would have been aware of the effect her workplace stress was having on her, and accordingly would face a significantly more difficult case when seeking to argue that psychiatric injury was not foreseeable.

A Claimant, through utilising the Equality Act 2010in order to place theiremployer on notice of the danger and risk they face of psychiatric injurynot only legitimately seeks the assistance they need to managetheir psychiatric condition for their employer, but furthermore, where reasonable adjustments are identified and recommended coupled with an employer’sfailure to implement them, such failings can be argued to amount to an acceptance that positive and intervening action was required by an employer to avoid a foreseeable risk to their employee, and that the employer either willingly or negligently failed to follow such steps resulting in the employees psychiatric injury. These types of circumstances would be far more likely to result in a successful result akin to Young v Post Office [2002] EWCA Civ 661 or Daw v Intel Corp (UK) Ltd [2007] EWCA Civ 70.

Letting sleeping snakes lie

Employees can also be confident that in the event they raise concerns regarding their health as a result of occupational stress but feel that they are being managed out, or their roles are being diminished in some way, that they may have strong claims in the Employment Tribunals by way of constructive dismissal. In short, what if an employer bides their time, then seeks to remove an employee in such a way as to limit a potential litigation risk to themselves.

In Chief Constable of Avon and Somerset v Dolan EAT 22 April 2008Mr Dolan complained to his employer of stress related symptoms in 2004 and early 2005, and was found to have been suffering from “mental health symptoms”. He was placed on sick leave and upon his return to work he was assessed a further seven times, and his condition described as “non-medical”. His employer also decided that afterthe “adjustments” had been made, there was no reason why he could not perform his work as an inspector. Mr Dolan accepted a supernumerary CID role on the basis of an unequivocal promise that his pay would not be reduced, yet he had received a letter in August 2006 threatening to place him on half pay. In response to this he resigned and brought claims of failure to make reasonable adjustments, disability discrimination and constructive dismissal. While an appeal to the EAT was successful in part, the finding of constructive dismissal was, on the evidence, upheld due to the employer’s failings. It was in essence, the combination of his Employers failure to make reasonable adjustments and the proven acts of disability-related discrimination had led Mr Dolan to conclude that he had lost trust in his employer, and that such loss of trust was the reason for his resignation (see also Greenhof v Barnsley MBC [2006] IRLR 98).

Conclusion

There can be little doubt that employees who highlight issues they are suffering due to work related stress at an early stage deserve support and assistance. Tactically, within the context of County and High Court proceedings, placing a Defendant on clear notice of concerns regarding a Claimants health as a result of stress through the application of the Equality Act 2010 is likely to help create a favorable factual matrix for the Claimant regarding any subsequent claim brought in the County or high Court based in negligence.

Whilst it’s right to say that the onus is on employees to take the first step in and raising issues caused through stress with their employers, the law is weighted in their favor if they do so. In this sense, Claimants who make a genuine attempt at the prevention and management of stress related symptoms will benefit themselves in the short and long term, as well as insulating their positon in the event of litigation.

LIAM RYAN