It will come as no surprise that occupational stress is becoming a major issue for both managers, employees and HR professionals. A survey conducted for the year 2014/15 shows that occupational stress and stress-related absences/conditions were behind over a third of all work-related ill-health and 43% of all working days lost due to illness (a total of 9.9 million).
Equally serious for employers is the prospect of liability if the occupational stress contributes towards psychiatric illness and there was a foreseeability that this would happen.
It’s therefore very important that employers take into account their duty of care to employees who may be suffering from stress-related illnesses.
The case of Easton v B&Q plc
The degree to which the duty of care applies to employers was addressed in a recent case, Easton vs B&Q (2015) where the court looked at whether the employer had breached its duty of care for one of its employees.
Mr Easton had a great deal of experience in managing large retail stores and had coped with the pressures of the job without experiencing stress related to them. However, all this was to change when he started to work at a B&Q store that was undergoing refurbishment. Although this work progressed satisfactorily, Easton became unwell due to occupational stress and was signed off work for a period of five months.
When he returned to work, it was on a phased basis and at a different store, closer to where he lived. However, it was not long before he suffered a relapse.
Easton claimed that his occupational stress was as a result of B&Q’s breaches of its duty of care and the way that they had handled his return to work was a direct cause of his relapse.
B&Q did not deny that Easton was suffering from a psychiatric illness that was caused largely by workplace changes such as the removal of night staff and the introduction of a new system of work in his store. However, the issue in this case was not whether Easton was suffering from stress – he clearly was – but whether B&Q could have foreseen that stress.
The court case covered several alleged breaches raised by Easton but found that his recollections differed significantly from the near-contemporaneous notes made by his employer and submitted as part of their defence. Because of this, it was possible to disprove several of the alleged breaches, showing that Easton had not raised particular points with his employer that would have enabled them to be aware of his psychiatric state, meaning that B&Q were within their rights to assume that he was capable of coping with the everyday pressures of his job.
For example, the B&Q staff handbook enjoined Easton to speak to his manager if he was experiencing stress at work but it was shown that he had not done so.
In this case, because the illness was not brought to the attention of the employer, it was ruled that they were not liable.
Points to consider
Employers are entitled to take what an employee tells them at face value, unless they have reason to believe otherwise. This means that they are not expected to carry out further investigations into the employee’s circumstances or ask for a medical report.
However, if signs of stress, such as frequent or prolonged absence, complaints from the employee in question or a known history of stress-related illness are present, this may mean that enquiries should be started and a risk assessment drawn up.
What employers should do
Going forward from this case, employers should consider what actions they should take in order to protect themselves should such a situation arise in their company.
Have employees made any complaints or reports of experiencing levels of stress above and beyond what might be considered ‘normal’ for their job?
Does the employee have a history of stress-related illness and is the employer aware of this?
Is there a system of appraisal meetings whereby early signs of occupational stress can be spotted and actioned?
Has the employer put in place an early intervention programme/Employee Assistance Programme so that employees can be supported with any problems they are facing?
How can employees raise concerns about colleagues they are concerned are at risk?
Has training been put in place to enable both managers and employees to recognise the signs of stress?
As was shown by the case of Easton, the existence of comprehensive and near-contemporaneous notes made by the employer was crucial in aiding their case. Employers should ensure that all meetings that might have any bearing on a claim relating to occupational stress should be documented.
Because a long-term psychiatric condition may be counted as a disability for discrimination purposes, employers will need to ensure that they have made reasonable adjustments for the returning employee.
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