In the course of my work, on a daily or weekly basis, I meet employees who tell me they are ‘stressed’ or have been signed off work by their doctor due to workplace stress. When I discuss the matter more fully I discover a wide range of reasons as to why the employee feels stress.
She may have made a complaint about a colleague and there is an investigation under way; he may be subjected to a personal improvement plan as a consequence of perceived inadequate performance; she may be subjected to a disciplinary process arising from an allegation of misconduct; he may be feeling the pinch financially and the promised bonus or pay rise has failed to materialise; she may be in danger of failing her probation.
All of these things cause stress.
But are they actionable? Can a legal action be successfully mounted and the employer held in breach of contract or found to be negligent?
Occupational stress v actionable workplace stress
There is an important difference between occupational stress and actionable workplace stress.
The Courts have long held that occupational stress is normal and inevitable.
Work is not play or recreation or entertainment, after all, and it is natural and inevitable that a certain amount of stress will attach to the job. You may work in a shop, you may be a nurse, Garda, pilot, cleaner, solicitor, accountant, work in a factory or warehouse-regardless, your job will always have a certain amount of stress attached.
What is actionable workplace stress? The courts have addressed this question in a number of seminal cases including Berber -v- Dunnes Stores Limited [2009] IESC 10, a Supreme Court decision. In this case the Supreme Court accepted and approved the principles set down in an England and Wales Court of Appeal (Civil Division) Decision of Hatton v Sunderland [2002] 2 All ER 1.
These legal principles are:
1. The ordinary principles of employer’s liability apply.
2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.
5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.
7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.
9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.”
If you read through these principles you will see, in essence, that the employee must prove at least 4 things:
- There was a duty of care to the employee
- The harm was reasonably foreseeable
- The harm caused an injury to the employee’s health
- The harm was a consequence of stress at work
The easy part of this test is proving the employer had a duty of care to the employee for this is self evident.
Conclusion
There is a world of difference between ordinary occupational stress and actionable workplace stress. Occupational stress is a simple fact of working life and will not give rise to a successful legal action; actionable workplace stress is actionable but you must prove you have suffered a recognised mental injury and the employer was legally negligent.