Banks are facing a rising tide of stress at work claims, according to Reuters yesterday. The report refers to anecdotal evidence by GQ Employment Lawyers to the effect that the number of “stress related lawsuits” is on the increase, but doesn’t say what type of lawsuits, nor give any statistics to back up the assertion.

 Never mind, the Health & Safety Executive’s own statistics for 2010/11 state the following;

“The number of new cases of stress, depression or anxiety has fallen from an estimated 254,000 in 2001/02 to 211,000 [in 2010/11]” *

Whether that downward trend will continue in 2011/12 or be broken as the report suggests we will have to wait and see. In my view it is unlikely that we will see a tidal wave of stress claims in the courts or Tribunals for various reasons – see below – but because when the next recession, which looks inevitable now, strikes it will be accompanied by job losses.  The CIPD produced a report yesterday predicting a “slow, painful contraction” in the jobs market in Quarter Four this year as many employers impose a hiring freeze. It isn’t actually predicting a rise in redundancies merely that once you’re out of a job you may find it hard to get another one.

I’ve acted for many employees over the years with occupational illnesses or injuries (including stress cases) and the one factor that usually concerns most, if not all of them, is the reaction of their employer if they bring a personal injury claim or assert their legal rights in some way.  Bankers are prey to this concern just as much as any other workers, arguably more so if they think it might jeopardise their annual bonus. The other concern, which should be ameliorated by the banning of pre-job offer health enquiries by employers under the Equality Act but probably isn’t, is that having a lengthy spell off work with stress will render a job-seeker “damaged goods”.

If I‘m wrong and a flood of stress at work claims does arise there’s another important consideration to bear in mind.  It’s relatively easy to commence a claim, start a protocol or issue proceedings, but quite another to win and recover compensation. Most employers faced with a stress at work claim aren’t likely to simply roll over and pay up.

There are several possible claims; in negligence for personal injury, for harassment under the Protection from

Harassment Act 1997 (PHA), or for injury to feelings at an Employment Tribunal if the stress is caused by harassment on the grounds of sex, race, disability, age, religious belief or sexual orientation (known as “Protected Characteristics”) . All it says is that claims from financial services staff are increasing, in the face of challenging economic conditions, long working hours, the threat of redundancy as well as being the occupation that currently everyone loves to hate (well, it gives estate agents and solicitors a break I suppose).

To sue for personal injury in the tort of negligence (which is the type of claim you would make if you suffered a whiplash injury in a car crash or a back injury from lifting something heavy at work) a Claimant has to have suffered a medically recognised illness or injury.  “Mere” stress won’t be enough, it has to go beyond that and will need to be verified by a medical practitioner, preferably a Consultant Psychiatrist.  That will be expensive.

The first legal issue is whether the illness/injury was reasonably foreseeable to the employer, in other words would the reasonable employer have realised, or should they have realised, that an employee subjected to those particular working conditions would suffer a psychological injury or illness.  That can be a difficult hurdle to overcome because mental illness tends to be “invisible” and most people don’t admit they have a problem until they become very unwell.  An employer is entitled to view his/her staff as being ordinarily robust and able to deal with the ups and downs of the workplace unless they have particular knowledge to the contrary.  It is in those cases where an employee has suffered mental illness, notified the employer of it, been off work as a result and then returned only to have another breakdown later on that have tended to be successful with claim for personal injury.

The second main problem tends to be in proving that the illness/injury was caused by or contributed to by the actions of the employer.  That usually means a forensic examination of the Claimant’[s medical records to see if they have any other stressors in their life – such as a prior history of mental illness, or have been going through a divorce, in trouble with the police etc.

Finally, these type of claims tend to be very expensive to put together, usually vigorously contested by the employer’s EL insurer and, because the claim is taken through the Court (High or County), there is a risk of losing and having to pay the other side’s costs – at least until the Jackson litigation reforms are introduced and we have “Qualified One-Way Costs Shifting”.

Claims under the PHA are, perhaps, slightly easier if the Claimant can show a near criminal standard of harassment from, e.g. their line manager, but that sort of claim doesn’t help an employee who is grossly overworked and trying to do the work of three people.  The ET claims for harassment and victimisation also require a “Protected Characteristic” to be the motivating factor in the employer’s behaviour.

Personal injury law is very unhelpful to people suffering from mental illness caused by the workplace. There won’t be a great increase in the number of claims going through the courts because the substantive law hasn’t changed.

• HSE Annual Statistics 2010/11 p.5

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. Stress at work
3. Seven Top Stress Management Tips for Employees

UK Banks Facing Rising Lawsuits over Stress? Really? originally appeared on Jobsworth by Michael Scutt on 15/11/2011.

According to research by mental health charity Mind,  workers fear that if they admit to being depressed or suffering from stress they will be selected for redundancy or “forced out of their jobs”.

Their statistics showed that 22% of those surveyed who had disclosed a mental health issue in a previous job had been fired. It’s  a natural reaction and it undoubtedly happens, but proving that the selection for redundancy was because the employee said they were unwell is quite another matter. As the Mind website reveals, sometimes an employer can be very supportive.  Sadly, that often isn’t the case.

• Workers cited the following as being factors inducing stress;
• Excessive workload
• The threat of redundancy
• Poor Management
• Unrealistic targets

Stress is a nasty insidious illness when it becomes more than just being under pressure.  It takes away a person’s ability to cope and lowers self-esteem.  It can make lives utterly miserable.  Not surprisingly employees don’t speak up about it when they fear they are becoming or have become unwell through stress: it’s a stigma and no one likes to think they will be perceived as not being able to cope.

However, if a worker thinks they have been made unwell by work are there any remedies available to them?

1. Termination of employment on the basis that the employee has been suffering from stress is unlikely to be a fair reason for dismissal, unless the employer has followed a thorough investigation and performance management process, which concludes  that the employee is incapable of working.  Selection for redundancy because the employee was suffering from stress would probably constitute unfair dismissal (provided the employee had 12 months continuous employment experience).
2. Dismissal because a person is suffering from stress or any other mental illness may be an act of discrimination under the Equality Act (disability discrimination) if the person would be deemed to be disabled within the meaning of the Act.  It’s a complex definition but note that the illness has to endure for at least 12 months or be permanent  to “qualify”.
3. If the illness has been caused (or exacerbated) by the work environment then it may be possible to bring a claim in the tort of negligence in the County or High Court.  In order to succeed with such a claim the employee would need to show that the work conditions made it reasonably foreseeable that a person would suffer mental illness.  Secondly, the work conditions must have caused the illness and that is often a major hurdle for Claimants because stress, depression etc can have many causes. The case of Sutherland v Hatton in 2001 made it difficult for Claimants to succeed with  these type of claims.
   

   Don't wait until it's too late

4. On the same point, because employees tend not to flag up the fact they are struggling to cope.  Mental illness is often referred to as a hidden illness and it is often not obvious that someone is suffering until too late.  The stress at work cases that have succeeded have often had a history of two bouts of illness: the first sets up that the employee has a problem caused  by overwork etc and the second demonstrates that the employer was on notice that the employee had suffered illness and did not take steps to address the problem – cf: Walker v Northumberland County Council.
5. A claim under the Protection from Harassment Act 1997.  An employer can be held vicariously liable for the actions of an employer if there have been at least two incidents of bullying or harassment which have caused the employee distress.  However, the severity of the behaviour needs to be of a “near criminal standard” (Conn v Sunderland City Council) so “ordinary” line management, however assertive or micro-managing, might not suffice to found a claim.
6. An often overlooked remedy, because not that many employees have access to it, is Permanent Health Insurance (PHI) aka, Long Term Disability Benefit or similar.  Some employers provide it as a “perk” of the job and if an employee goes on long term sick leave the employer can apply after a qualifying period (often six months) for the employee to be accepted onto the scheme.  If granted, PHI will pay a percentage of benefit – usually 50 – 60% of full salary until the person recovers or retires or dies.  The contract is between the employer and the insurance company and not with the employee, although it may be possible for the employee to assert their rights if the Contract (Rights of Third Parties) Act 1999 applies.

None of the above are wholly satisfactory and the law really does not adequately assist employees who have been made mentally unwell by their workplaces.  Claims in negligence at (3) above are highly expensive to run and  have poor success rates. More fundamentally all litigation is an unwelcome prospect, particularly if you’re unwell.The effects of it can be mitigated to an extent by having an early mediation to resolve the issues, but that requires both parties to be prepared to negotiate.

For employees who do not have 12 months continuous employment experience and thus cannot bring a claim for unfair dismissal or do not qualify as disabled under the Equality Act they are in a vulnerable position, assuming they do not have any other employment claims available to them (such as for whistleblowing or trade union membership etc).  The ET does not award compensation for injury to feelings (ie personal injury) in unfair dismissal cases.

Get advice to find your direction

In all these cases though an employee suffering from mental illness faces the prospect of difficult and expensive litigation or negotiations, probably at a time when they feel least able to cope with it.  One answer is to find another job and move on – often that removes the cause of the stress and enables the person to get better but that may be easier said than done.

One strategy we often advocate in situations where the employee is becoming unwell is to either file a grievance and in addition, or as an alternative, to write to the employer on a without prejudice basis setting out the problem and seeking a negotiated settlement.  This can be a quick and relatively cheap solution, but will only work where the employer considers that they are at risk.

Having said all the above, it is no wonder that some employees do think it best to keep their worries to themselves.  Being sacked might seem dreadful (and it is), but suffering from stress or depression can be a whole lot worse.  As ever, if you’re worried about your own personal position, don’t rely upon the above comments but go and get advice – not just from a solicitor but from a charity like Mind where you can speak to people who have “been there”.

Mind is running a campaign at the moment to promote mental health in the workplace – click here for the “small simple steps” you can take to make the workplace a better place.

The above does not constitute legal advice and should not be relied upon.  Go and speak to a solicitor instead!

Related posts:

1. UK Banks Facing Rising Lawsuits over Stress? Really?

Are Stressed Workers More at Risk of Redundancy? originally appeared on Jobsworth by Michael Scutt on 25/05/2011.

On the 6^th April next month[1], the government’s new medical certification scheme comes into force replacing the current “Med3” sick note system.  It was decided to do away with the scheme because it focussed too much on what employees could not do and not enough on what they could.  In other words, a person was either too sick to work, or they were well and it ignored any, temporary or rehabilitative options that there might be to allow the person to remain in work.  For instance a person with back ache might be fit to work provided they did no heavy lifting or were allowed to get up and walk about every hour to ease discomfort whilst sitting.  With a Med3 that person can’t go to work despite the fact that they could do light duties.  The government’s aim, of course, is to reduce the number of days lost to sickness and the number of people from claiming benefit. The government has long been exercised by how to reduce the number of people on long-term sick leave, suffering from chronic conditions and the new “fitness to work” certificate tries to remedy that.

 Statutory Sick Pay will remain in being and, as before, a person will need a “Fit Note” from the eighth day of absence.  The certificate contains the following wording;

“I advise you that: you are not fit for work OR you may be fit for work taking account of the following advice: If available, and with your employer’s agreement, you may benefit from: a phased return to work; altered hours; amended duties/workplace adaptations”

The main thrust behind this is unobjectionable but, in practice, I can see it causing trouble.  G.Ps are unhappy about it because it places them in a potentially difficult position.  Margaret McCartney, a G.P based in Glasgow, writing in this weekend’s Financial Times, said that it requires G.Ps to become Occupational Health Physicians -  which is a separate discipline altogether and one which most G.Ps are not trained for.  She was also concerned that G.Ps might breach confidentiality to their patients in completing these forms because there is also space on them for further notes to be written in explanation of their recommendation. 

But, with my employment lawyer’s hat on, I can see two main impacts of this change.  The first is that people with less serious stress at work claims are going to find it more difficult to pursue their claims, especially for those employees who claim “stress at work” as a tactical weapon in response to disciplinary proceedings.   That must be a positive, especially for employers.  The second, less helpfully, is that employers may find themselves bogged down in arguments with their employees on just what they can and can’t do and precisely what the G.P had in mind.  Most employers are not occupational health experts anymore than most G.Ps are.  That could lead to grievances and, potentially, claims.  G.Ps might find themselves accused of professional negligence as well if they are too optimistic about what a patient can do. 

 Time will tell how this change will work and if it is successful in keeping more people in work.  It is a laudable aim and one that deserves to succeed.  I just worry that the government has tried to achieve it “on the cheap”. As usual.

[1] Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 SI 2010/137

No related posts.

Fit Notes: Fit for Purpose? originally appeared on Jobsworth by Michael Scutt on 22/03/2010.

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

Related posts:

1. Seven Top Stress Management Tips for Employees
2. Stress at work
3. UK Banks Facing Rising Lawsuits over Stress? Really?

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. UK Banks Facing Rising Lawsuits over Stress? Really?
3. Stress at work

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

I don't like Mondays - The Boomtown Rats

So, it’s Monday again.  It always seems to be Monday and they never seem to get any better.  The Boomtown Rats didn’t like them, still less Brenda Spencer the 16 year old girl whose 1979 shooting spree in San Diego and subsequent blunt explanation inspired their song.    Even if most people aren’t drawn to actually shooting their fellow workers, the third Monday in January is the worst, bleakest, most depressing day of the year.  This is supposedly because Christmas is a distant memory, the credit card bills need paying, the weather is awful and the next holiday is months away.  See this article from Mail Online last year for the full horror story: http://www.dailymail.co.uk/health/article-509367/Its-miserable-Monday-How-think-positive-bleakest-day-year.html   

Of course, there is feeling down and there is full on mental illness, which is of a different magnitude altogether. Mental illness is still stigmatised and not properly understood.  It is a real issue for society as levels of depression and anxiety seem to be increasing.  This is particularly so in the workplace.  The Health and Safety Executive (HSE) has produced statistics for 2008/09 which suggest that;   

• In that year 415,000 people in work believed they were suffering from work-related stress at levels to make them ill
• The 2009 Psychosocial Working Conditions Survey said that around 16.7% of all working individuals thought their job was very or extremely stressful
• The Labour Force Survey (LFS) suggests that 11.4 million working days were lost through “self-reported work-related stress, depression or anxiety” in 2008/09
• GP data collected by a research group called THOR, run by Manchester University, shows that 30.9% of all diagnoses of work-related ill-health are mental health related and the average length of sickness is 26.8 working days

Click here for the full HSE summary.  The statistics show that, despite what might be thought anecdotally, the levels of self-reported stress was broadly level throughout the last decade, although THOR’s figures show that Occupational Health Physicians report a clear upward trend over that period (but psychiatrists don’t: they report levels remaining stable).  What does this say about Occupational Health Physicians: correctly sympathetic or not applying the right tests?   

 These are worrying figures and demonstrate that stress at work is a significant problem.  However, the first two statistics above only deal with self-reported stress and that must raise concern that some employees exaggerate their symptoms or actively “play the system”.  For a combatively worded argument in favour of the latter proposition, please see the letter from Helen Giles, an HR Director in Personnel Today on the 7th January.  The central point she makes is that there is a difference between people who claim to be ill from those who actually are;   

“Any HR practitioner will … [say] … that in nine cases out of 10 where an employee is told they are facing any sort of disciplinary or capability procedure, they run to the doctor for a certificate saying “work-related stress” and stay off work for several weeks, at the employer’s expense, as a way of avoiding or delaying proceedings”    

Strong stuff, but not untrue, although I would query whether the rate is really as high as nine out of 10.  Without doubt though, it happens.      

Ian Barratt of Mind Strengths

What can be done if you’re an employer, or how to deal with stress if you are an employee? I have no magic wand but I’m delighted to announce that  I’ve asked Ian Barratt of Mind Strengths Limited, to write his “Seven Top Tips for dealing with Stress” which will provide common-sense ways to keep stress under control.  Mind Strengths is a specialist consultancy advising both employees and employers on how to cope with stress at work.    

 In their own words   

“(Mind Strengths) specialise in helping clients identify, reduce and manage the risk of stress in the workplace. In turn, this helps clients save money, reduce absenteeism caused by stress and improve productivity and morale.”   

 To coincide with “Miserable Monday” Ian’s Seven Top Tips will be published on this blog next Monday 18th January, along with my own tips for employers on how to avoid stress at work claims.   

To ensure you don’t miss it, please subscribe to the RSS feed or subscribe to the email updates.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. Plough Monday
3. Seven Top Stress Management Tips for Employees

Coming Soon … Miserable Monday originally appeared on Jobsworth by Michael Scutt on 11/01/2010.

simply having a wonderful Christmas time ...

Everyone is producing reviews of the decade at the moment – they seem to be everywhere in the newspapers and online.  I was taken by The Independent’s sports poll in which Thierry Henry is a leading candidate for “Villain of the decade” for his recent handball against the Republic of Ireland, presumably on the basis that it is still fresh in everyone’s minds (and isn’t The Independent Irish-owned?).  That’s always the problem with these polls, it becomes hard to remember who the villains were in 2008, let alone 2000. 

In the employment law sphere, one villainous issue has stayed with us and probably deserves the title more than Thierry Henry: stress at work.  It has been a constant theme throughout this decade, simmering away in the background since the case of Hatton v Sutherland prevented it from becoming a rolling boil (perhaps running sore would be better?) back in 2002.  That case placed a very heavy burden on employees wishing to sue their employers for negligently causing their stress.  Then the case of Majrowski v Guy’s Hospital NHS Trust came along in 2005 and held that an employer could be vicariously liable under the Protection from Harassment Act 1997 (“PHA”) for causing distress or anxiety at work.  For a while that case looked like it would turn the temperature right up again, only for Conn v City of Sunderland [2007] to cool matters by saying that employers would only be liable where the bullying and harassing behaviour amounted to “near-criminal” standards of behaviour.

The recent case of Judy Veakins v Kier Islington Limited [2009], recently heard before the Court of Appeal (CA), has been cited as threatening to raise the temperature again on this difficult issue, by holding that Ms Veakins had been the victim of “oppressive, unreasonable and criminal (behaviour)”. I don’t think it will do so and I don’t think it takes the law any further forward.  In the WLR report of the case Maurice Kay LJ is reported as saying

 “It should not be thought from the present unusually one-sided case that stress at work would often give rise to liability for harassment.” 

 In this case, for reasons not explained, the employer did not challenge the evidence of the Claimant nor contest whether there was vicarious liability.  The CA was prepared to find that the Claimant’s allegations did reach the required standard but it must be open to question whether it would had the employee’s conduct been subjected to examination. To that extent this case does not assist in taking matters much further forward.  PHA claims are heard by the County Court, not the Employment Tribunal, which reminds us that the PHA was initially brought on to the statute book to give protection to people being “stalked”. To require “criminal” behaviour, as stated in the Conn case  doesn’t necessarily help: think about the offences of “threatening behaviour” or breach of the peace, where very low thresholds of behaviour can lead to the Old Bill feeling your collar.  The CA stated that whilst the PHA does not preclude employers being held vicariously liable this type of claim should be more properly heard in the Employment Tribunal.

Undoubtedly this case will be used by employees trying to pursue claims under the PHA, but I suspect that County Court judges will hesitate to rely upon it.  Instead the law on stress at work will remain as difficult and convoluted as before and that is not good news for either employers (for whom stress at work claims cause much stress) or employees. In the 1990s back injury claims were all the rage, to be replaced by stress at work in this decade.  It is time for the Courts to hand down a judgment that will resolve just what constitutes behaviour that is “oppressive and objectionable” in the workplace.  

I was going to do my own review of interesting cases from this year, but I’ve run out of time.  Thankfully, Daniel Barnett came to the rescue and pointed me in the direction of Wragge & Co’s review of the year.  It’s very good and is on their website so I don’t suppose they’ll mind me linking to it.

I’ve been rather snowed under with work this month and I’ve not had chance to devote as much time to the blog as I would have liked.  Normal service will be resumed in the New Year when I hope to unveil some (hopefully) interesting new features.  In the meantime, Happy Christmas and all best wishes for the New Year to you all.

Michael

No related posts.

Villainy afoot! originally appeared on Jobsworth by Michael Scutt on 24/12/2009.