Stress - your responsibility

STRESS-related conditions are among the most common causes of absence in the workplace.

The difficulty facing employers is not only identifying the causes of stress in the workplace, but identifying stress in itself.

Stress is dealt with through a variety of sources such as Health and Safety legislation, the Equality Act 2010, common law duties, the Employment Rights Act 1996 and contractual duties. Employers are under a common law duty to take reasonable care of the health and safety of employees in the workplace.

The Court of Appeal decision in Sutherland v Hatton; Somerset County Council v Barber; Sandwell Metropolitan Borough Council v Jones: Baker Refractories Ltd v Bishop [2002] EWCA Civ 76, which were heard together, provide guidance on an employer’s common law duties in relation to workplace stress-related illness.

The Court of Appeal held that employers should not be held liable unless they either know or ought reasonably to have known, that the employee in question was susceptible to workplace pressures.

The question facing employers is whether the kind of harm to a particular employee was reasonably foreseeable. Although the Court of Appeal decision has put the onus on employees to communicate with their employers, the difficulty lies in whether the employee feels able to communicate this with their employer for fear of being deemed unable to cope. Ultimately, employers will be responsible even though they are not under an obligation to be proactive.

Thus, an employer can reasonably accept what the employee says at face value, unless the employer has good reason to think to the contrary. However, employers must be careful as they are under a duty to take steps in situations where an employee is particularly vulnerable and failure to do so will result in the employer being in breach of that duty.

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In order to reduce the risk of falling foul of legislation and subsequently having to defend potentially costly claims either in a county court or employment tribunal, it is important that employers take measures to reduce the risk of this happening. There are many ways in which this can be accomplished; by having appropriately drafted contracts of employment, policies, staff training and support services.

This article is for general information purposes only and does not constitute legal or other professional advice. You should not act or rely upon this information.

Ashton KCJ is authorised and regulated by the Solicitors Regulation Authority (Recognised Body number 45826) and by the Financial Services Authority.