New regulations ensure employers must respond seriously when staff complain of mental injury at work.
Some employees are likely to treat Andrew Oswald's research findings with scepticism. The university o Warwick professor has concluded that most British employees are satisfied at work, even though they are under much greater pressure than they were 10 years ago.
Few will quibble with the statement about increased pressure but some may take issue with the comments on satisfaction. Those taking issue are likely to include some o the one-fifth of employees who according to the Health and Safety Executive, admit to taking time of because of work-related stress.
The HSE estimates that 60 per cent of all work absence is caused by stress-related illness. In order to succeed with a claim for stress related injury, employees must leap the same hurdles as in any personal injury case.
They must establish that the employer had a duty of care that was broken, that the injury caused was as a result of the employer's breach and that, in the circumstances, the injury was reasonable foreseeable.
It was in a ground-breaking case several years ago involving a social worker that it was established that the employer's duty to provide a safe place of work extended not only to physical but also to mental injuries. The success or failure of stress- related claims will usually revolve around two points. First, was the risk of a stress-related illness reasonably foreseeable? And second, was the injury caused as a result of the employer's actions?
On the issue of whether the injury was reasonably foreseeable, the case involving the social worker made much of the fact that he had suffered two breakdowns. It was only after the first that it was established that it was reasonably foreseeable that an excessive workload would expose him to the risk of injury.
Since that case, the Working Time Regulations have been implemented. They regulate hours and rest period entitlements not just for employees but also for broader categories of "worker". In addition, the Health and Safety Commission published a draft discussion paper last year entitled Managing Stress at Work, although the accompanying draft Approved Code of Practice relating to workplace stress will not now be issued.
These changes, together with increasing awareness of research into stress-related injuries, are likely to make it harder for employers to argue that they cannot reasonably be expected to foresee health risks to employees who are exposed to long hours and tight deadlines.
Employers will in the future have to take more seriously complaints from employees who feel unable to cope with their workload.
However, even if it becomes easier to show that the injury was foreseeable, proving that any stress-related illness suffered by employees was caused by work-related factors remains problematic. Stress-related illness is often a result of a combination of problems, some of which may not be work-related. In such cases the employer will argue that he was not the cause of the illness.
The potential problems faced by employers have been aggravated since the Disability Discrimination Act 1995 came into force. It provides wider protection for employees because it covers a variety of health problems - not just those caused by the working environment.
For example, employees who can establish, under the Act, that they are "disabled" could in certain circumstances be afforded protection against dismissal even if their stress-related depression "disability" were the result of factors entirely unconnected with their work. The problem for employees bringing such claims is to convince an employment tribunal that their stress-related illness amounts to a "disability", which must have a substantial long-term adverse impact on the individual's day-to-day activities.
However, employment tribunals are now experiencing a steady flow of such claims and the likelihood is that employers will be exposed to an increase in the future. Claims for disability discrimination must submitted to an employment tribunal within three months of the alleged act of discrimination. Importantly, for employers the employment tribunal's power to award compensation in such cases is not, subject to any cap.
Recently the courts have given greater power to employment tribunals to award compensation for stress-related injury, as opposed to just compensation for injury to feelings.
Previously it was thought that personal injury claims could be pursued only in the courts. In future, individuals who have suffered a stress-related illness that has been induced as a result of sex or race discrimination will be tempted to use the tribunals as opposed to the courts on the basis that they may provide a quicker route to compensation.
The Chartered Institute of Personnel and Development has produced an action plan for employers. The CIPD says: "The management of stress and employee mental health has become more important as organisations become leaner and more flexible and step up the pressure to remain competitive."
The CIPD suggests that employers should be involved in regular risk assessment procedures and that steps should be taken to increase stress awareness coupled with training for employees.
In addition, the CIPD recommends that steps be taken to ensure that adequate support is given to employees recovering from serious ill health as the result of stress.
The CIPD also recommends that where there is evidence of damaging stress, a workplace audit should be carried out. With stress-related absence reportedly costing British businesses £5bn a year, employers continue to ignore it at their financial peril.
First published in the Financial Times on 4 December 2000.