Duty of care
Employers have a duty to take reasonable care to ensure their employees do not suffer injury, including psychiatric injury, at work. A breach can lead to a negligence claim against the employer if the injury was reasonably foreseeable.
The starting point is that employers can presume an employee is able to endure the normal pressures of their role, unless they know the employee is particularly vulnerable. However, foreseeability will depend on what the employer knew, or ought to have reasonably known, about the employee. For example, if an employee alerts their manager to raised stress levels, it will be more likely that any subsequent psychiatric injury they suffer was reasonably foreseeable.
While stress isn’t an illness in its own right, it can lead to conditions such as anxiety or depression, and physical illnesses such as migraines. Stress can also exacerbate underlying illnesses such as diabetes. Employers should approach mental health issues the same way they would physical illnesses.
Stress-related illnesses can also manifest as poor performance or misconduct. An employee may have a claim for unfair dismissal if they are dismissed for misconduct when their behaviour was caused by their illness or even by the medication they are taking for that illness.
In these circumstances, employers should flex their capability and conduct policies and, where appropriate, allow medical evidence during investigations.
With the number of disability discrimination tribunal cases growing eight times faster than any other kind, employers should be careful when handling allegations of stress-related discrimination. Stress is not a disability, but anxiety or depression caused by stress could be. This is regardless of whether the source of stress is at work or in the employee’s personal life.
Under law, ‘disability’ is any physical or mental impairment, which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.
Employers are under a duty to make reasonable adjustments for disabled employees. Failing to do this could also give rise to a claim for constructive dismissal.
Returning to work
If an employee is absent due to stress, upon their return it is important not to expose them to the same working environment that caused the stress previously. For example, if nothing is done to improve the situation, it will be easier for the employee to say that a second breakdown after returning to work was reasonably foreseeable.
Employers should hold a return to work meeting soon after an employee resumes work. The meeting should make the employee feel welcome back, check they are well enough to work and confirm any adjustments to their working arrangements, whether temporary or permanent.
Employers can guard against liability for stress claims by managing an employee’s stress proactively and sensitively. Improving mental health awareness in the workplace; implementing detailed stress at work policies; subscribing to an employee assistance programme; and monitoring workplace stress will help reduce the likelihood of claims and may assist in showing that the employer has discharged their duty of care.
Ultimately, with increasing awareness of mental health issues, claims arising from workplace stress are also likely to increase. Such cases are fact-sensitive and can be difficult for an employee to prove. However, employers can mitigate the risks by identifying and reducing sources of stress, engaging with employees to raise awareness and providing effective support for those suffering from workplace stress.
Michèle Aubertin is an associate, and Katy Carr a senior associate, both in the employment team at Stephenson Harwood