Controversy over workplace stress and the legal consequences seems likely to continue following a new House of Lords decision that re-states the principles that apply to cases of workplace stress.
In Barber v Somerset County Council, their Lordships ruled in favour of Mr Barber, a former teacher, overturning the Court of Appeal’s decision made on his case in 2002 in Hatton v Sutherland.
Trades unions believe that this significant ruling restores employers’ responsibility for taking the initiative where employees report occupational stress.
The principles that now apply in workplace stress cases now seem to be, according to the leading judgement, as follows:
The practical guidance given by the Court of Appeal in Hatton v Sutherland should not be read as having anything like statutory force; every case will depend upon its own facts. The best statement of principle remains that of Swanwick J in Stoke v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776.
Law firm Cloisters, which represented the successful employee, said this means that employers must keep up-to-date with the developing knowledge of occupational stress and the probable effectiveness of the precautions that can be taken to meet it.
An “autocratic and bullying style of leadership” which is “unsympathetic” to complaints of occupational stress is a factor that courts can take into account in deciding whether there has been a breach of the employer’s duty to an employee.
Once an employer knows that an employee is at risk of suffering injury from occupational stress, they are under a duty to do something about it. This duty continues until something reasonable is done to help the employee.
Employees who complain do not need to be forceful in their complaints and need not describe their troubles and symptoms in detail. Their complaints should be listened to sympathetically.
Certified sickness absence due to stress or depression needs to be taken seriously by employers. It requires an inquiry from the employer about the employee’s problems and what can be done to ease them. They should not be brushed off unsympathetically or by sympathising but simply telling him or her to prioritise his work without taking steps to improve or consider the situation further.
A management culture that is sympathetic to employees suffering from occupational stress and “on their side” in tackling it, may make a real difference to the outcome.
Monitoring employees who are known to be suffering from occupational stress is mandatory. If they don’t improve more drastic steps may need to be taken to help them.
Temporary recruitment may be required. Although this will cost money, it will be less costly than the permanent loss through psychiatric illness of a valued member of staff.
The statutory duty to carry out risk assessments is also recognised by the judgement.
“At the very least the senior management team should have taken the initiative in making sympathetic inquiries about Mr Barber when he returned to work [after three weeks absence due to stress], and making some reduction in his workload to ease his return. Even a small reduction in his duties coupled with the feeling that the senior management team was on his side, might by itself have made a real difference. In any event Mr Barber’s condition should have been monitored, and if it did not improve, some drastic action would have had to be taken,” said Lord Walker.
“Supply teachers cost money, but not as much as the cost of the permanent loss through psychiatric illness of a valued member of the school staff,” he said.
