This Update concentrates on the legal impact of undue stress in the workplace and bullying and harassment.
The recent decision in Green v Deutsche Bank Group Services Ltd will no doubt cause alarm amongst employers.
According to reports, the compensation package was as much as £800,000. Helen Green’s award against her employer followed acute stress and a nervous breakdown resulting from bullying and harassment at the hands of colleagues at the Bank. The High Court decided that the Bank was in breach of its duty of care and had a vicarious liability for the bullying. Importantly the High Court applied the House of Lords ruling in Majrowski v Guys and St Thomas’ NHS Trust, the import of which is an employer would be liable to pay damages under the Protection from Harassment Act 1997, even without negligence, because of its vicarious liability for the acts of its employees.
In reaching its decision the High Court was doing no more than applying what are now firm principles in personal injury cases. Significantly the Majrowski case leaves an employee with another route to claiming stress related injuries that may not need him to overcome the hurdles set out in Sutherland v Hatton. That decision confirmed the need for the injury to be foreseeable and suggested that an employer offering a confidential advice service would be unlikely to be found in breach of duty. However, as Majrowski imposes strict vicarious liability on the employer for the acts of its employees, the whole issue of forseeability may not be so relevant, if the case can be founded on the Protection from Harassment Act.
Litigation by an employee for stress related injury or harassment may take place in the Civil Courts or in the Employment Tribunals. Normally speaking employers will be insured against claims in the former, but probably will not be for the latter. We will look at claims through the Civil Courts first.
Stress claims in the civil courts
For an employee to successfully claim that he has suffered injury as a result of workplace stress, the employee will need to comply with the Sutherland and Hatton requirements. Essentially the employee will have to be able to show that the signs of stress should have been obvious to the employer and, as we have indicated above, that an employer with a confidential counselling service is not likely to be liable. However the case of Majrowski case held that an employer could be liable for an act of harassment committed by an employee against another in breach of Section 1 of the Protection from Harassment Act 1997. This says that a person must not pursue a course of conduct which amounts to harassment of another and he which he knows or ought to know, amounts to harassment of another. A course of conduct would require more than a single incident. The significance of the case is that unlike a case founded solely on stress, the victim does not need to show that he has suffered psychiatric injury only that he has suffered anxiety and stress. The strict vicarious liability would, we believe, override any issues relating to forseeability and confidential counselling. An employee not taking advantage of confidential counselling might suffer some reduction in damages, but it should not present a bar to a claim.
Employers ought also to implement the stress management standards available from the Health and Safety Executive, or available from their website. The HSE have set out a number of standards including those relating to relationships at work which offer invaluable assistance.
The Protection from Harassment Act offers the opportunity for an employee to bring a claim based on the vicarious liability of the employer. This may have a significant impact on the statutory framework defining harassment in the context of sex, race, religion or disability.
The Equal Treatment Directive 2002/73/BC defined sexual harassment as taking place “when unwanted conduct related to the sex of the person occurs with the purpose for effect of violating the dignity of the person and/or creating an intimidating, hostile, degrading, humiliating or offensive environment. This definition of harassment was adopted for the other forms of discrimination by the UK in 2003. There is a “get out of jail free card” for the employer in that liability can be escaped if it can be shown that he took such steps as were reasonably practical to prevent the employee from doing the discriminatory act. However if the claim can be framed in the context of the Protection from Harassment Act, our view is that this statutory defence will offer little help.
Tribunals
Given that there is no legislation in force that directly governs bullying in the workplace, an employee has to look elsewhere to bring a Tribunal case. Clearly in potential high value claims it is not worth trying to pursue a Tribunal claim if the case can be defined as a workplace injury caused by stress or can be framed under the Majrowski guidelines. However, compensation in the Tribunals is unlimited for discrimination and if the behaviour of fellow employees or the employer can be categorised as harassment or the consequences can be viewed as a disability, then a tribunal may be the appropriate place to bring a claim.
The Disability Discrimination Act may now have a significant impact on any claim relating to stress through the Employment Tribunal. Until December 2005 a mental impairment was only recognised as a disability if it resulted from or consisted of a clinically well recognised illness. However, that requirement has now been removed. The impact of these changes is that provided that a person meets the definition of disability, then a Tribunal does not have to enquire into whether it is a clinically well recognised disorder. From May 2006 new guidance also exists on the matters to be taken into account in determining questions relating to the definition of disability. It is quite likely therefore what where the impact of stress is long term (i.e. more than 12 months) an employer may have to consider reasonable adjustments to cater for that disability. That might entail, after a lengthy absence, a graduated return to work and a detailed stress risk assessment of the workplace for the returner. In any event that does not do much more than offer the echo the guidance offered by the HSE.
An employee may be able to resign and claim constructive dismissal, subject to the usual grievance provisions, on the basis of the breach of an implied term by the employer. In the 1979 case of Wigan Borough Council v Davies, the Court held an employer “shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers”. That decision was approved in the case Walters v Metropolitan Police, with the House of Lords recognising that there was an obligation on the employer to take care of its employees including an obligation to prevent ill treatment or bullying. The House of Lords though, was careful to say that “not every course of victimisation or bullying would give rise to a cause of action against the employer”. The employer, to be liable, would need to know or should know that harassment is taking place.
Finally in relation to stress the impact of the Working Time Regulations should not be forgotten. These were introduced by the Government following an EU Health and Safety Directive. The rationale of the Directive was that excessive working hours and inadequate rest breaks could impact on the health of a worker and therefore the State had an interest in regulating the working hours of the employee. If the employer is responsible for a serious breach of the regulations, then the Courts are entitled to take this into account in determining whether a psychiatric injury was reasonably foreseeable. In the case of Hone v Six Continents Retail Ltd, the Court of Appeal held that Mr Hone who had been employed as a licensed house manager and in practice was working 90 hours a week, was entitled to damages for psychiatric injury following a collapse at work. Lord Justice Dyson stated “the significance of the regulations is that, where an employee refuses to give his consent, an employer may not require the employee to work more than 48 hours per week. The plain and obvious purpose of the regulations is to protect the welfare and health of employees”.
This is an area in a state of constant flux, but it is quite clear that the Majrowski and Green and Deutsche Bank decisions have opened up a whole new potential line of attack for employees and employers would be well advised to pay attention to their policies on stress and bullying and harassment in the workplace. Just as important are the training given to employees on those policies and the efforts made on implementation. Many employers brandish their handbook policies in a Tribunal, but are unable to produce any records to prove the implementation of those policies and training given to management on their use.
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