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Ladies & Gentlemen,
After 23 years loyal service (and two short of the carriage clock) I'm considering a stress at work case via an employment tribuneral. The roots of this are long and quite complicated but I sought the best written advice about making a stress at work claim. I believe I have suffered by physical and mental harm although the latter may not qualify as a "psyciatric illness" under the legal definitions but I believe Amnesia is recognised and this is a rsult of the effects of prolonged stimulation of the stress response on the hippocampus.
It appears that stress from work is about the hardest thing in the world to prove and reading the law judgements it appears as if an employer can act with impunity to stress people provided they refer them to a councelling service. That seems plain wrong to me!
I've annotated each test for a stress claim with my case in blue below it, if anyone can give me their legal opinion I'd be grateful.
Whatyou need to make a stress claim
Fora stress claim to succeed the employee must show:
Further Salami slicing caused by having to do other work which was not wellmanaged and ended up in my effectively reporting to 3 separate people and other people disturbing me as well for work I wasn't supposed tobe doing.
Thisepisode resulted in a further reduction in short to medium termmemory and ability to concentrate, both essential components to theeffective execution of the job. However at this point they may havebeen able to claim that the consequences were NOT foreseeablealthough taking into account my total workload (home and work) plusthe emotional distress it was reasonable to expect that any normalperson would have been under extreme prolonged stress from bothsides.
Onreturn to work in June 2011 I restarted in my old job, wasimmediately under pressure as a course was starting in 3 weeks timeand the unnecessary ancillary meetings, scattered throughout the daycontinued despite these being cited as extreme stressors (they addedno value to the work I was doing, nor did I add any value to thesemeetings). Only after having lengthy discussions with Occ Health(which cost further time) were these meetings dropped temporarily. Itwas pointed out that this was causing me severe problems on theconcentration/memory front every time I had to stop/start the work.
In early 2012 I switched work roles to a new project but was asked toassist at weekends (some not all – about 2 weekends/month) toassist with another work avenue but this was not supposed to distractme from my mid week work. However, the need to answer queries fromthe contractor during the week and find additional informationcoupled by constant distractions from a work colleague who worked forthe same boss as me meant I was constantly being distracted by thisand the incessant meetings to a point that the “meaningful” timein the working day to progress the actual work was very low and thestress of the distractors, coupled with the already lowmemory/concentration made it near impossible.
Atthis point I effectively had 3 bosses and two other people taking upmy time, none of them taking much cognisance of the demands of theother work streams. The stress increased, so did the stress responseand the effects on memory and concentration to the point that theprimary work was becoming impossible.
At this point I believe that the effect on memory and concentration hadmoved from impairment to disability. I went off work with stress inlate June 2013.
Inaddition to the above, stress claims have to be considered inrelation to the criteria set down in the court of appeal judgement inFebruary 2002 which overturned three previously successfulwork-related stress cases.
Thecriteria in that judgement are the benchmark upon which solicitorswill measure the prospects of any claim.
Summaryof the key points on stress at work cases taken from the Court ofAppeal’s judgement on 5 February 2002
1. Thereare no special control mechanisms apply to claims for psychiatric (orphysical) illness or injury arising from the stress of doing the workthe employee is required to do. The ordinary principles of employer’sliability apply.
Not quite sure what this means – there is no work level which it wouldbe considered as excessive?
2. Thethreshold question is whether this kind of harm to this particularemployee was reasonably foreseeable. This has two components:
a) aninjury to health (as distinct from occupational stress) which
i)Cause of hypothyroidism (physical)
ii)Cause of memory/concentration to move to a disability (Research ofRobert Sapolsky)
b) is attributable to stress at work (as distinct from other factors).
i)The first injury (Hypothyroidism) was entirely due to work with norelated external factors
ii)The second is more complicated. There was stress at work due to agradually reducing time frame to complete work at the same time mymother was enduring Alzheimers which undoubtedly increased personalstress levels and that increased stress was known by the company. Thecombination of the two stressors undoubtedly put the total burdenabove the personal long term coping level, increasing chronic stresslevels above the bearable.
This resulted in the further decrease in mental powers(concentration/memory) and led to the stress illness episode in 2011.At this point the company should have been “on notice” and shouldnot have put me in a position of multiple competing tasks that werenot properly managed and left me with effectively 3 bosses and anumber of subordinates under the control of one of the managers whowere continually needing my time to complete their work.
The result of these competing pressures were discussed numerous times butno effective mechanism was put in place to cope with these. I hadsuggested working at weekends to get quiet time to complete theprimary tasks without disruption and I also tied to limit the effectby requesting “time off in Lieu” during the week to compensatefor weekend working. Both were denied.
Therefore the effect of these ill defined priorities, and additional createdjob distractors previously cited combined with a previous knowweakness meant that the outcome was “reasonably foreseeable” andled to the current stress episode in June 2013.
3. Foreseeabilitydepends upon what the employer knows (or ought reasonably to know)about the individual employee. Because of the nature of mentaldisorder, it is harder to foresee than physical injury, but may beeasier to foresee in a known individual than in the population atlarge.
An employer is usually entitled to assume that the employee canwithstand the normal pressures of the job unless he knows of someparticular problem or vulnerability.
My employer certainly knew I was under significant stress outside ofwork and was therefore more “prone” overall from 2008 onwards.Stress could have been reduced by removing additional add ons andthose elements which salami slice the days at work but may not havebeen aware of the effects of stress on me until return to work afterthe first stress illness in 2011.
However, the vulnerability to stress should now have been know and my motherhad gone into a care home and I had sorted out most of the majorissues surrounding my mother by mid 2011. Therefore the external towork stressors were much reduced but the work related issuesincreased from 2011 – 2013 due to the competing issues not beingproperly managed.
Therefore,during this time there was “above normal” pressures on a personwith a known vulnerability who had cited that the increased demands,constant interruptions and pressures from more than one boss notbeing effectively managed, coupled with an impaired memory andconcentration due to stress which was known.
4. The test is the same whatever the employment: there are no occupationswhich should be regarded as intrinsically dangerous to mentalhealth.
5. Factors likely to be relevant in answering the threshold question include:
a)The nature and extent of the work done by the employee. Is the workloadmuch greater than is normal for the particular job? Is the workparticularly intellectually or emotionally demanding for thisemployee?
Following the stress incident in 2011 the workload was competing and wasintellectually demanding, this is why I needed conditions whichallowed full concentration to do the work. Interruptions result inthe “mental threads” of a job being dropped when interrupted andtherefore difficult to pick up quickly. The naturally fragmentedworking day, exacerbated by meetings which were productivelyunnecessary combined with work related interruptions resulted in the“usable” time to carry out the supposed primary role decreasingtowards zero when the effects of stress on memory and concentrationare added in.
Are the demands being made of this employee unreasonable when comparedwith the demands made of others in the same or comparable jobs, orare there signs that others doing this job are suffering harmfullevels of stress? Is there an abnormal level of sickness orabsenteeism in the same job or the same department?
The particular job(s) I was doing between the start of 2012 and thesecond stress sickness episode in 2013 was new and to a high degreenovel. However, there was a general increase in departmental workload during this time and one new employee was obviously stressedseverely but was fortunately young enough to cope with this episode.Another employee (out of 10 in the group in total) confided that thestress was bad enough that he was grinding his teeth in his sleep andhad to sleep with a gum shield to prevent him damaging his teeth. Oneother employee who had suffered from stress had another episode anddecided to retire.
b) Signs from the employee of impending harm to health. Has she/he aparticular problem or vulnerability? Has she/he already suffered fromillness attributable to stress at work?
Following the 2011 sickness absence the employer should have been “on notice”as to the effects that stress was having on concentration and memory.In addition, reviews of annual medical assessment forms would havegiven a strong indication of a person suffering from stress over aprolonged period.
In addition, because of the stress impairment and the salami slicingcreating stress I had on annual stress surveys cited that workingarrangements were a major issue. Nothing was done or discussed andthe form “signed off”
Therefore there was a number of avenues by which the company should have been“on notice”
Have there recently been frequent or prolonged absences which areuncharacteristic of her/him? Is there reason to think that these areattributable to stress at work, for example, because of complaints orwarnings from her/him or others?
I had been off 2 other times in the last year, one due to a severecold, the other due to a gastrointestinal infection. However coldsare relatively frequent occurrences and I tend to suffer “man flu”when I get these and always have. Therefore there was nothing tosignificantly alert the company in these absences other that to saythat the total was higher than usual.
They were on notice that they were causing stress and they could have madethe link, however, it would be reasonable to have assumed they werenot the result of stress and genuine illness periods that generallyoccur in unstressed individuals. However, it is generally known thatstress lowers the immune response and therefore may be prone to moregeneral illnesses.
6. The employer is generally entitled to take what he is told by hisemployee at face value, unless he has good reason to think to thecontrary. He does not generally have to make searching enquiries ofthe employee or seek permission to make further enquiries of hismedical advisers.
They knew that I had been under pressure outside work and that there was acontinuing burden.
They knew I had been off with stress and the the primary causes were workrelated to the conditions, workload, poor management of that workloadand constant distractions which were causing the stress.
Personal stress surveys should also have alerted them along with annualmedical questionnaires and discussions with Occ Health advisor’s inaddition to the persistent general demeanour of a stressed person,(such as not being very humoured, clear external exasperation whenissues were not taken seriously etc.)
7. To trigger a duty to take steps, the indications of impending harm tohealth arising from stress at work must be plain enough for anyreasonable employer to realise that he should do something about it.
I think all the above indicates that it was “plain enough tosee”
8. The employer is only in breach of duty if he has failed to take the stepswhich are reasonable in the circumstances, bearing in mind themagnitude of the risk of harm occurring, the gravity of the harmwhich may occur, the costs and practicability of preventing it, andthe justifications for running the risk.
This is an area where there will always be debate as to what isreasonable.
Given two previous stress illnesses (one causing hypothyroidism which wouldnot have put them “on notice” although it could be argued thatthe high incidence of thyroid disorders in a small group (3 out of55) could have been investigated further and the company's doctorthought that this was warranted)
It is widely known what the effects of prolonged chronic stress are onthe body, the harm is real and the effects seriously interfere withthe persons ability to run their life and their job as a result.
Theprimary job I was supposed to do during the week on normal dailyhours was memory and concentration demanding and I had proposedworking at weekends to remove the daytime stressors which werepreventing me from doing the job effectively. The company during thisperiod was happy for me to work overtime at the weekends (on anentirely different job) and therefore I don't see why doing theprimary work in this time would have been unreasonable.
I do not believe it is possible to easily manage the stressors innormal working hours as there are too many people about and evengetting my own office would have seemed like favouritism andattracted attention that we would be trying to avoid.
9. The size and scope of the employer’s operation, its resources and thedemands it faces are relevant in deciding what is reasonable; theseinclude the interests of other employees and the need to treat themfairly, for example, in any redistribution of duties.
The employer has hundreds of thousands of employee's but the specificdivision has about 5500 FTE's and the site around 600 FTE's.
10.Anemployer can only reasonably be expected to take steps which arelikely to do some good: the court is likely to need expert evidenceon this.
Whatsort of evidence would they need?
11. An employer who offers a confidential advice service, with referral toappropriate counselling or treatment services, is unlikely to befound in breach of duty.
This needs to be challenged. It is flawed on two counts,
i)That it is OK if I break your leg as long as I pay your medical bill for your recovery. This is treatment after the fact rather than preventative.
ii)It effectively means that I don't need to fix the underlying problem because when we break people the psychologists will fix them again.(which in most cases doesn't work)
The company does offer a counselling service but I chose to go with my GP recommended service as I was already in this programme.
12. If the only reasonable and effective step would have been to dismiss ordemote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
This needs to be challenged to the degree that the stress causes REAL brain injury which inhibits the person from performing their job.Therefore repeated stress results in brain injury which cannot be repaired by counselling and diminishes the ability of the person todo their job. (See research by Prof. Robert Sapolsky)
Where the work has caused or materially contributed to the final statedismissal or demotion should not be seen as “reasonable” by anemployer.
In effect its like having someone who is lifting heavy boxes all daywhich creates and then aggravates the injury to then sack thembecause they can't lift boxes. If the injury was caused by work thenthey should not be able to do this. If the injury was created outsideof work, like a football injury then it may be reasonable.
13. Inall cases, therefore, it is necessary to identify the steps which theemployer both could and should have taken before finding him inbreach of his duty of care.
I believe that if their intention was to truly “ring fence” my“weekday” work then that should have been done by some or all ofthe following:-
i)Found me somewhere to work which “ring fenced” me EFFECTIVELY from the interruptions (very difficult to do effectively on a largeindustrial site)
ii)The line manager responsible for both me and two of the major distractors could have informed them not to disturb me (although its difficult to know how they would have got their work done)
iii)They could have taken up my suggestion to move my work to outside normal hours (not all work time, but the majority)
iv)They could have moved me to a job where the interruptions would have a lower effect (i.e. work that was not so intellectually challengingso that the effect of interruptions would be less severe.
14. The claimant must show that the breach of duty has caused or materiallycontributed to the hardship suffered. It is not enough to show thatoccupational stress has caused the harm.
Not sure I really understand this. The basis is that creating stress,even though that has a proven effect on the brain (injury) that ifthat injury is created by work stress then you cannot use that toshow a breach of duty of care?
Is this not a circular argument to say that causing stress, even if itcan be proven to have caused harm is not enough to permit asuccessful claim therefore no stress claim can ever besuccessful??
15. Wherethe harm suffered has more than one cause, the employer should onlypay for that proportion of the harm suffered which is attributable tohis wrongdoing, unless the harm is truly indivisible. It is for theemployer to raise the question of apportionment.
There are three planks here.
1)The first incident in 1996-2000 was not reported as stress though in hind sight this was the most likely cause. However, the lastingresult of this was an ongoing impairment to concentration and memorywhich needed careful management by myself to ensure it did not become“evident”
2)My mother's Alzheimers was a major contributing factor to the stress between 2008 and late 2010 and would have been contributory to the sickness absence with stress in 2011. Without this I may have coped through this period but work was becoming more stressful. This undoubtedly “exposed” my weakness in terms of memory and concentration and made the situation difficult to manage. However,the lack of adjustments at work and increased demands materially contributed to the final outcome.
3)Following the 2011 sickness absence the company should have been “onnotice” as to the stress, the work related causes and thedisability. From here on the injury progression is entirely down tothe company.
16. The assessment of damages will take account of any pre-existing disorderor vulnerability and of the chance that the claimant would havesuccumbed to a stress-related disorder in any event.
There was no “pre existing” disorder prior to joining the company. Theinitial hypothyroidism was primarily caused by work related stress sothe initial impairment which was subsequently made worse was workrelated in its entirety. The secondary worsening of this impairmentbetween 2008 to 2011 was partly due to outside of work factors. Thefinal transformation of the impairment to a disability is entirelywork related due to work pressures applied on a known impairment from2011 to 2013.
Youmust keep your employer informed
The court of appeal judgement placed the onus on the employee to havemade her/his problems known to the employer.
InMay 2004 the House of Lords ruled on an appeal lodged on behalf ofone of the three cases overturned by the court of appeal judgement inFebruary 2002. In what has become known as the Barber Ruling, theHouse of Lords restored the county court's original findings in thiscase.
However,whilst the Barber ruling has clarified the law it has not overruledthe 16 principles set down by the court of appeal judgement.
Its impact has been in re-establishing that the employer, where theyare aware that an employee has a potential stress related healthissue, has a responsibility to investigate the health of thatemployee rather than waiting for the employee to identify theproblem.
Right, well that's it, long enough you'll agree.
The problem I have is that a lot of it is circumstantial, Can I prove they caused the Hypothyriodism? How do you prove memory and concentration impairment to disability?
Some of the "tests" seem "circular" to prevent stress claims?
Any thoughts anyone?
Regards,
The Badger
After 23 years loyal service (and two short of the carriage clock) I'm considering a stress at work case via an employment tribuneral. The roots of this are long and quite complicated but I sought the best written advice about making a stress at work claim. I believe I have suffered by physical and mental harm although the latter may not qualify as a "psyciatric illness" under the legal definitions but I believe Amnesia is recognised and this is a rsult of the effects of prolonged stimulation of the stress response on the hippocampus.
It appears that stress from work is about the hardest thing in the world to prove and reading the law judgements it appears as if an employer can act with impunity to stress people provided they refer them to a councelling service. That seems plain wrong to me!
I've annotated each test for a stress claim with my case in blue below it, if anyone can give me their legal opinion I'd be grateful.
Whatyou need to make a stress claim
Fora stress claim to succeed the employee must show:
- they have a medically recognised psychiatric illness or injury
Hypothyroid due to stress and severe fall off in concentration & short-medium term memory
- their work posed a real risk of causing psychiatric illness and the employer knew (or ought to have known) that the employee was exposed to that risk.
Had already been off with stress previously due to exactly the same issues back in 2011, extra “stuff” added on, that salami sliced the day. Trying to do technically demanding work which required high levels of concentration. This was pointed out and the additional “non productive” meetings continued. Had to get Occ Health to step in but removal was only temporary.
Further Salami slicing caused by having to do other work which was not wellmanaged and ended up in my effectively reporting to 3 separate people and other people disturbing me as well for work I wasn't supposed tobe doing.
- given the foreseeable risk, the employer failed to take reasonably practicable or adequate steps to prevent or reduce the risk of psychiatric harm to the employee.
- It was known that the additional impositions were causing stress when I went off in 2011 and were cited on return to work. In addition they knew that I was under pressure outside work as a result of my mother having Alzheimer's and I had quite a few things to sort out which put me under pressure out of work.
- In addition, I also reported that it would be better to do the work out of hours so that I wouldn't keep getting disturbed and also that the working hours was making it difficult for me to do the work and to effectively sort out my home life as a result of the additional things I needed to do for my mother as well as catch up on my own things.
- the employee's psychiatric injury was caused, or materially contributed to, by the work and the employer's breach of duty.
The initial illness in 2000 (hypothyroidism) was I believe the result of prolonged stress at work. Two other people (3 out of 55 in total) doing the same job suffered with Thyroid complaints at about the same time. Hyper or Hypothyroidism is generally 7 times more prevalent in women than men and generally seen most in the over 60's. All 3 of us were men between 35 – 45 years. The site doctor thought this unusual and reported it to the company at the time. - The resultant effect of the hypothyroidism was a reduced ability to concentrate and poorer short term memory which made me more prone to the effects of disruptions. The injury is therefore both physical and mental. Physical cause of hypothyroidism and the triggering of the stress response releases cortisol which is known to “fry” memory and concentration.
In the second case I had been under some pressure as my mother's alzheimers (diagnosed in 2008) was getting worse but at this time work had been getting steadily busier with less time to do more tasks. About 2010 a new raft of meetings were added to the week which significantly salami sliced the day and with the existing work preparation time being interfered with and the techical nature making it difficult to continually drop and pick up this added significantly to the stress as there was no acceptance that work load would be reduced.
The effects of dealing with my mother's Alzheimers (she lived 90 miles away), the increased general workload and the imposition of additional meetings led to higher pressure at a time that it was known I had additional pressures outside of work and led to further distractions which was very disruptive to concentration, which created further frustration, stress, the stress response was near permanently triggered leading to Cortisol release which further affects concentration and memory.
By Feb 2011 the stress got so bad that I was off sick for 4 months. The stress should have been evident from:-
1) My general lacklustre demeanour
2) I had complained about the effect of the additional meetings and their effect of salami slicing and removing effective working conditions with tight deadlines but nothing was done
3) They were aware that I was under significant pressure outside of work with my mother.
Thisepisode resulted in a further reduction in short to medium termmemory and ability to concentrate, both essential components to theeffective execution of the job. However at this point they may havebeen able to claim that the consequences were NOT foreseeablealthough taking into account my total workload (home and work) plusthe emotional distress it was reasonable to expect that any normalperson would have been under extreme prolonged stress from bothsides.
Onreturn to work in June 2011 I restarted in my old job, wasimmediately under pressure as a course was starting in 3 weeks timeand the unnecessary ancillary meetings, scattered throughout the daycontinued despite these being cited as extreme stressors (they addedno value to the work I was doing, nor did I add any value to thesemeetings). Only after having lengthy discussions with Occ Health(which cost further time) were these meetings dropped temporarily. Itwas pointed out that this was causing me severe problems on theconcentration/memory front every time I had to stop/start the work.
In early 2012 I switched work roles to a new project but was asked toassist at weekends (some not all – about 2 weekends/month) toassist with another work avenue but this was not supposed to distractme from my mid week work. However, the need to answer queries fromthe contractor during the week and find additional informationcoupled by constant distractions from a work colleague who worked forthe same boss as me meant I was constantly being distracted by thisand the incessant meetings to a point that the “meaningful” timein the working day to progress the actual work was very low and thestress of the distractors, coupled with the already lowmemory/concentration made it near impossible.
Atthis point I effectively had 3 bosses and two other people taking upmy time, none of them taking much cognisance of the demands of theother work streams. The stress increased, so did the stress responseand the effects on memory and concentration to the point that theprimary work was becoming impossible.
At this point I believe that the effect on memory and concentration hadmoved from impairment to disability. I went off work with stress inlate June 2013.
Inaddition to the above, stress claims have to be considered inrelation to the criteria set down in the court of appeal judgement inFebruary 2002 which overturned three previously successfulwork-related stress cases.
Thecriteria in that judgement are the benchmark upon which solicitorswill measure the prospects of any claim.
Summaryof the key points on stress at work cases taken from the Court ofAppeal’s judgement on 5 February 2002
1. Thereare no special control mechanisms apply to claims for psychiatric (orphysical) illness or injury arising from the stress of doing the workthe employee is required to do. The ordinary principles of employer’sliability apply.
Not quite sure what this means – there is no work level which it wouldbe considered as excessive?
2. Thethreshold question is whether this kind of harm to this particularemployee was reasonably foreseeable. This has two components:
a) aninjury to health (as distinct from occupational stress) which
i)Cause of hypothyroidism (physical)
ii)Cause of memory/concentration to move to a disability (Research ofRobert Sapolsky)
b) is attributable to stress at work (as distinct from other factors).
i)The first injury (Hypothyroidism) was entirely due to work with norelated external factors
ii)The second is more complicated. There was stress at work due to agradually reducing time frame to complete work at the same time mymother was enduring Alzheimers which undoubtedly increased personalstress levels and that increased stress was known by the company. Thecombination of the two stressors undoubtedly put the total burdenabove the personal long term coping level, increasing chronic stresslevels above the bearable.
This resulted in the further decrease in mental powers(concentration/memory) and led to the stress illness episode in 2011.At this point the company should have been “on notice” and shouldnot have put me in a position of multiple competing tasks that werenot properly managed and left me with effectively 3 bosses and anumber of subordinates under the control of one of the managers whowere continually needing my time to complete their work.
The result of these competing pressures were discussed numerous times butno effective mechanism was put in place to cope with these. I hadsuggested working at weekends to get quiet time to complete theprimary tasks without disruption and I also tied to limit the effectby requesting “time off in Lieu” during the week to compensatefor weekend working. Both were denied.
Therefore the effect of these ill defined priorities, and additional createdjob distractors previously cited combined with a previous knowweakness meant that the outcome was “reasonably foreseeable” andled to the current stress episode in June 2013.
3. Foreseeabilitydepends upon what the employer knows (or ought reasonably to know)about the individual employee. Because of the nature of mentaldisorder, it is harder to foresee than physical injury, but may beeasier to foresee in a known individual than in the population atlarge.
An employer is usually entitled to assume that the employee canwithstand the normal pressures of the job unless he knows of someparticular problem or vulnerability.
My employer certainly knew I was under significant stress outside ofwork and was therefore more “prone” overall from 2008 onwards.Stress could have been reduced by removing additional add ons andthose elements which salami slice the days at work but may not havebeen aware of the effects of stress on me until return to work afterthe first stress illness in 2011.
However, the vulnerability to stress should now have been know and my motherhad gone into a care home and I had sorted out most of the majorissues surrounding my mother by mid 2011. Therefore the external towork stressors were much reduced but the work related issuesincreased from 2011 – 2013 due to the competing issues not beingproperly managed.
Therefore,during this time there was “above normal” pressures on a personwith a known vulnerability who had cited that the increased demands,constant interruptions and pressures from more than one boss notbeing effectively managed, coupled with an impaired memory andconcentration due to stress which was known.
4. The test is the same whatever the employment: there are no occupationswhich should be regarded as intrinsically dangerous to mentalhealth.
5. Factors likely to be relevant in answering the threshold question include:
a)The nature and extent of the work done by the employee. Is the workloadmuch greater than is normal for the particular job? Is the workparticularly intellectually or emotionally demanding for thisemployee?
Following the stress incident in 2011 the workload was competing and wasintellectually demanding, this is why I needed conditions whichallowed full concentration to do the work. Interruptions result inthe “mental threads” of a job being dropped when interrupted andtherefore difficult to pick up quickly. The naturally fragmentedworking day, exacerbated by meetings which were productivelyunnecessary combined with work related interruptions resulted in the“usable” time to carry out the supposed primary role decreasingtowards zero when the effects of stress on memory and concentrationare added in.
Are the demands being made of this employee unreasonable when comparedwith the demands made of others in the same or comparable jobs, orare there signs that others doing this job are suffering harmfullevels of stress? Is there an abnormal level of sickness orabsenteeism in the same job or the same department?
The particular job(s) I was doing between the start of 2012 and thesecond stress sickness episode in 2013 was new and to a high degreenovel. However, there was a general increase in departmental workload during this time and one new employee was obviously stressedseverely but was fortunately young enough to cope with this episode.Another employee (out of 10 in the group in total) confided that thestress was bad enough that he was grinding his teeth in his sleep andhad to sleep with a gum shield to prevent him damaging his teeth. Oneother employee who had suffered from stress had another episode anddecided to retire.
b) Signs from the employee of impending harm to health. Has she/he aparticular problem or vulnerability? Has she/he already suffered fromillness attributable to stress at work?
Following the 2011 sickness absence the employer should have been “on notice”as to the effects that stress was having on concentration and memory.In addition, reviews of annual medical assessment forms would havegiven a strong indication of a person suffering from stress over aprolonged period.
In addition, because of the stress impairment and the salami slicingcreating stress I had on annual stress surveys cited that workingarrangements were a major issue. Nothing was done or discussed andthe form “signed off”
Therefore there was a number of avenues by which the company should have been“on notice”
Have there recently been frequent or prolonged absences which areuncharacteristic of her/him? Is there reason to think that these areattributable to stress at work, for example, because of complaints orwarnings from her/him or others?
I had been off 2 other times in the last year, one due to a severecold, the other due to a gastrointestinal infection. However coldsare relatively frequent occurrences and I tend to suffer “man flu”when I get these and always have. Therefore there was nothing tosignificantly alert the company in these absences other that to saythat the total was higher than usual.
They were on notice that they were causing stress and they could have madethe link, however, it would be reasonable to have assumed they werenot the result of stress and genuine illness periods that generallyoccur in unstressed individuals. However, it is generally known thatstress lowers the immune response and therefore may be prone to moregeneral illnesses.
6. The employer is generally entitled to take what he is told by hisemployee at face value, unless he has good reason to think to thecontrary. He does not generally have to make searching enquiries ofthe employee or seek permission to make further enquiries of hismedical advisers.
They knew that I had been under pressure outside work and that there was acontinuing burden.
They knew I had been off with stress and the the primary causes were workrelated to the conditions, workload, poor management of that workloadand constant distractions which were causing the stress.
Personal stress surveys should also have alerted them along with annualmedical questionnaires and discussions with Occ Health advisor’s inaddition to the persistent general demeanour of a stressed person,(such as not being very humoured, clear external exasperation whenissues were not taken seriously etc.)
7. To trigger a duty to take steps, the indications of impending harm tohealth arising from stress at work must be plain enough for anyreasonable employer to realise that he should do something about it.
I think all the above indicates that it was “plain enough tosee”
8. The employer is only in breach of duty if he has failed to take the stepswhich are reasonable in the circumstances, bearing in mind themagnitude of the risk of harm occurring, the gravity of the harmwhich may occur, the costs and practicability of preventing it, andthe justifications for running the risk.
This is an area where there will always be debate as to what isreasonable.
Given two previous stress illnesses (one causing hypothyroidism which wouldnot have put them “on notice” although it could be argued thatthe high incidence of thyroid disorders in a small group (3 out of55) could have been investigated further and the company's doctorthought that this was warranted)
It is widely known what the effects of prolonged chronic stress are onthe body, the harm is real and the effects seriously interfere withthe persons ability to run their life and their job as a result.
Theprimary job I was supposed to do during the week on normal dailyhours was memory and concentration demanding and I had proposedworking at weekends to remove the daytime stressors which werepreventing me from doing the job effectively. The company during thisperiod was happy for me to work overtime at the weekends (on anentirely different job) and therefore I don't see why doing theprimary work in this time would have been unreasonable.
I do not believe it is possible to easily manage the stressors innormal working hours as there are too many people about and evengetting my own office would have seemed like favouritism andattracted attention that we would be trying to avoid.
9. The size and scope of the employer’s operation, its resources and thedemands it faces are relevant in deciding what is reasonable; theseinclude the interests of other employees and the need to treat themfairly, for example, in any redistribution of duties.
The employer has hundreds of thousands of employee's but the specificdivision has about 5500 FTE's and the site around 600 FTE's.
10.Anemployer can only reasonably be expected to take steps which arelikely to do some good: the court is likely to need expert evidenceon this.
Whatsort of evidence would they need?
11. An employer who offers a confidential advice service, with referral toappropriate counselling or treatment services, is unlikely to befound in breach of duty.
This needs to be challenged. It is flawed on two counts,
i)That it is OK if I break your leg as long as I pay your medical bill for your recovery. This is treatment after the fact rather than preventative.
ii)It effectively means that I don't need to fix the underlying problem because when we break people the psychologists will fix them again.(which in most cases doesn't work)
The company does offer a counselling service but I chose to go with my GP recommended service as I was already in this programme.
12. If the only reasonable and effective step would have been to dismiss ordemote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
This needs to be challenged to the degree that the stress causes REAL brain injury which inhibits the person from performing their job.Therefore repeated stress results in brain injury which cannot be repaired by counselling and diminishes the ability of the person todo their job. (See research by Prof. Robert Sapolsky)
Where the work has caused or materially contributed to the final statedismissal or demotion should not be seen as “reasonable” by anemployer.
In effect its like having someone who is lifting heavy boxes all daywhich creates and then aggravates the injury to then sack thembecause they can't lift boxes. If the injury was caused by work thenthey should not be able to do this. If the injury was created outsideof work, like a football injury then it may be reasonable.
13. Inall cases, therefore, it is necessary to identify the steps which theemployer both could and should have taken before finding him inbreach of his duty of care.
I believe that if their intention was to truly “ring fence” my“weekday” work then that should have been done by some or all ofthe following:-
i)Found me somewhere to work which “ring fenced” me EFFECTIVELY from the interruptions (very difficult to do effectively on a largeindustrial site)
ii)The line manager responsible for both me and two of the major distractors could have informed them not to disturb me (although its difficult to know how they would have got their work done)
iii)They could have taken up my suggestion to move my work to outside normal hours (not all work time, but the majority)
iv)They could have moved me to a job where the interruptions would have a lower effect (i.e. work that was not so intellectually challengingso that the effect of interruptions would be less severe.
14. The claimant must show that the breach of duty has caused or materiallycontributed to the hardship suffered. It is not enough to show thatoccupational stress has caused the harm.
Not sure I really understand this. The basis is that creating stress,even though that has a proven effect on the brain (injury) that ifthat injury is created by work stress then you cannot use that toshow a breach of duty of care?
Is this not a circular argument to say that causing stress, even if itcan be proven to have caused harm is not enough to permit asuccessful claim therefore no stress claim can ever besuccessful??
15. Wherethe harm suffered has more than one cause, the employer should onlypay for that proportion of the harm suffered which is attributable tohis wrongdoing, unless the harm is truly indivisible. It is for theemployer to raise the question of apportionment.
There are three planks here.
1)The first incident in 1996-2000 was not reported as stress though in hind sight this was the most likely cause. However, the lastingresult of this was an ongoing impairment to concentration and memorywhich needed careful management by myself to ensure it did not become“evident”
2)My mother's Alzheimers was a major contributing factor to the stress between 2008 and late 2010 and would have been contributory to the sickness absence with stress in 2011. Without this I may have coped through this period but work was becoming more stressful. This undoubtedly “exposed” my weakness in terms of memory and concentration and made the situation difficult to manage. However,the lack of adjustments at work and increased demands materially contributed to the final outcome.
3)Following the 2011 sickness absence the company should have been “onnotice” as to the stress, the work related causes and thedisability. From here on the injury progression is entirely down tothe company.
16. The assessment of damages will take account of any pre-existing disorderor vulnerability and of the chance that the claimant would havesuccumbed to a stress-related disorder in any event.
There was no “pre existing” disorder prior to joining the company. Theinitial hypothyroidism was primarily caused by work related stress sothe initial impairment which was subsequently made worse was workrelated in its entirety. The secondary worsening of this impairmentbetween 2008 to 2011 was partly due to outside of work factors. Thefinal transformation of the impairment to a disability is entirelywork related due to work pressures applied on a known impairment from2011 to 2013.
Youmust keep your employer informed
The court of appeal judgement placed the onus on the employee to havemade her/his problems known to the employer.
InMay 2004 the House of Lords ruled on an appeal lodged on behalf ofone of the three cases overturned by the court of appeal judgement inFebruary 2002. In what has become known as the Barber Ruling, theHouse of Lords restored the county court's original findings in thiscase.
However,whilst the Barber ruling has clarified the law it has not overruledthe 16 principles set down by the court of appeal judgement.
Its impact has been in re-establishing that the employer, where theyare aware that an employee has a potential stress related healthissue, has a responsibility to investigate the health of thatemployee rather than waiting for the employee to identify theproblem.
Right, well that's it, long enough you'll agree.
The problem I have is that a lot of it is circumstantial, Can I prove they caused the Hypothyriodism? How do you prove memory and concentration impairment to disability?
Some of the "tests" seem "circular" to prevent stress claims?
Any thoughts anyone?
Regards,
The Badger
and welcome to Legal Beagles
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