In the wake of a ruling awarding u67,000 to a victim of stress, Fraser Younson warns employers – including law firms – to take it seriously. Fraser Younson is a partner and head of employment law at McDermott Will & Emery's London office.
With the UK's workforce working a longer average week than its mainland Europe counterparts, the management of stress has come to the top of the agenda for most employers – including law firms.
The recent ruling in Lancaster v Birmingham City Council on 5 July 1999, when the Birmingham County Court awarded u67,000 for personal injury damages on account of stress, is just the tip of the iceberg.
Ms Lancaster had been occupying part-time clerical and technical posts for 22 years when her position was abolished and she was offered a post which involved substantial dealings with the public. Although she had no experience or training to perform this role, she was promised it. It was not forthcoming, despite her numerous requests. Her workload increased and minimal clerical support was given. Eventually the stress of the job affected her health.
The psychological problems caused by the stress meant she found it difficult to cope with everyday living, developing clinical depression, lethargy, mood swings and inability to focus attention. Following lengthy sickness absence she was retired on ill health grounds. The council admitted liability.
Although the Lancaster case is being hailed as a landmark decision, it isn't. In Walker v Northumberland County Council (16 November 1994), the High Court similarly declared a council liable for personal injury damages resulting from an overworked and under-supported employee. As in Lancaster, the signs of overwork were apparent to the employer but it did nothing to solve the problem.
One of the problems with stress is that it is not an illness in itself – it is a "catch all" situation which manifests its symptoms in different ways for different people. Furthermore, the fact that a particular employee is exhibiting some of the classic symptoms of stress (for example, lateness, mistakes at work and mood swings) may be due to problems outside work. But, in practice, the employer will always see the symptoms at work because that is where the employee spends most of their time.
Since "negative" stress, or stress which damages health, will almost always have an adverse impact on an employee's performance and productivity at work, the employer has an obvious interest in helping sort out or alleviate the problem, whatever its cause.
All employers have a legal obligation to hold regular risk assessments with their employees in respect of their individual jobs. The identification and management of stress should play a major part in this process, thus enabling employers to take preventative steps to ensure that the stress remains "positive". It will also enable employers to identify where further training is required.
The fact that only one employee from a large department finds their job too stressful does not mean that he or she is a "wimp". There may be a variety of reasons – but the law of tort requires employers to take their employees as they find them (the "egg shell skull" rule).
The risk assessment process can be a double-edged sword because once it has highlighted a potential problem, the employer is on notice and must do something about it.
The practical reality is that employers should be reasonably flexible in finding ways to enable their employees to minimise negative stress. This could mean more flexible working arrangements, training, temporary adjustment of hours, or more support. Some employers provide confidential helplines or counselling.
The rewards for employers of taking a proactive and preventative approach are obvious – greater efficiency and productivity and a motivated workforce. Employers who ignore their employees' genuine pleas for support or regard such employees as wimps are likely to face many more claims for damages as in the Lancaster case. In that case the damages were relatively low because of the nature of her job and that she worked part-time – but the cost implications for "stress damages" for senior executives or assistant solicitors are likely to be considerably higher.