Q: We have an employee who has been off work regularly with stress and are concerned where this is leading. Could she claim disability discrimination when absent for a stress-related condition? Furthermore, how do we manage this properly to avoid any stress related claims?
A: Yes, the employee could have a claim if the stress satisfies the statutory definition of a disability and as a result of such condition, they are treated less favourably.
The Equality Act 2010 defines a disability as 'a physical or mental impairment which has a substantial and long term adverse effect on (the person's) ability to carry out normal day to day activities'.
Stress could give rise to a mental impairment as the latter includes various forms of depression provided the prognosis is long term and there is appropriate medical evidence, so getting an independent medical opinion via an OH specialist is certainly worthwhile.
'Long term' is stated as being for a period of one year or longer.
The Act also requires that the employer makes reasonable adjustments to working arrangements so the disabled employee is not at a disadvantage.
The employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows, or is reasonably expected to know, about the employee’s disability.
Assessing whether an employee is disabled is not easy, particularly in a case of stress related conditions, as some stress is not a disability (which is a legal definition, not a medical one).
For example, in the case Gallop v Newport City Council [2013] a council worker was suffering from depression brought on by work related stress. An independent occupational health report concluded that the depression did not meet the legal definition of disability. Relying on this report the council dismissed him. A claim for unfair dismissal succeeded but a claim for disability discrimination reached the Court of Appeal who decided that an employer must make a factual judgment themselves as to whether or not the employee is disabled and although assistance and guidance from an occupational health report was helpful the employer cannot simply 'rubber stamp' an external opinion. The issue was should the employer have actual or constructive knowledge of the facts constituting the employee's disability.
To avoid claims against you, you need to keep an eye out for stress in particular individuals or for a general stressful environment in the organisation as a whole.
For example: Is the employee showing deterioration in relationships with colleagues, irritability, indecisiveness, reduced performance, absenteeism, health problems, increased consumption of alcohol or cigarettes. This could all be stress related.
Symptoms of stress in your organisation may manifest itself in employees being disillusioned with low morale, higher levels of absenteeism, more lateness, increased disciplinary issues, higher staff turnover and reduction in quality of performance or product and lower level of profits. Hence it“s worth managing properly!
Effective HR management should help to avoid stress problems. The following are good examples of what could be done:
- Risk assessments
- Regular appraisals
- Education and training e.g. stress management courses
- Managerial support e.g. handle changes carefully, keep employees informed, avoid periods of uncertainty
- Management's approach to stress shows that it is taken seriously and demonstrates an understanding attitude
- A helpline and counselling and an occupational health service
- Encouraging employees in seeking medical help
- Policies and procedures which reflect and reiterate the above points where relevant
- Provision of a mentoring system.
- Using regular staff surveys to gauge things.
- Being open to flexible working options to improve work–life balance.
What claims may you be at risk of?
Most stress claims arise under the breaches of the law known as contract or negligence. However, there are three main types of duties employees may use as a basis for a stress claim:
1. Negligence
You must take such steps as are reasonably necessary to take care of the safety of your employees. Breach that duty and you may be sued for a claim in negligence for damages. The duty extends to both physical and mental health.
2. Contract
There are also implied terms in a contract of employment that would be relevant to stress claims for example:
- implied duty regarding health and safety:
In all contracts of employment there is an implied term that the employer will provide the employee with a safe system of work. A failure to take reasonable steps to protect the employee from stress may result in the employee claiming breach of that term.
- implied duty of mutual trust and confidence:
This implied duty means that the employment relationship is based on trust and confidence, and an employer will not, without reasonable and proper cause, behave in a manner that is calculated or is likely to destroy or seriously damage that trust and confidence.
3. Statute
Under statute numerous further duties arise, for example:
Under Health and Safety at Work etc. Act 1974 Section 2, employers have an obligation to provide and maintain systems of work and a working environment which are, as far as is reasonably practicable, safe and without risk to health. The duty extends to providing maintenance of safe plant and systems of work, information, training, supervision and adequate support. The general duty to provide a safe and healthy working environment, including risk assessment, will apply to the prevention of stress-related ill health. Employers must assess the risk of stress-related ill health arising from work activities and take measures to control that risk. Carrying out a proper risk assessment for stress could enable an employer to avoid prosecution and litigation.
An employee can also obtain damages for stress related claims under the breach of the Management of Health and Safety at Work Regulations 1999 which gives employers duties to assess the risk of stress-related ill-health arising from work activities.
Lots to consider but stress related absence is now very common sadly.
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