EMPLOYMENT LAW SEMINAR

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EMPLOYMENT LAWSEMINAR

• Yasmin Tayob Solicitor
• yasmintayob_at_howlettclarke.co.uk
• DD Tel. [phone]
• www.howlettclarke.co.uk

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EMPLOYMENT LAW UPDATE

• STRESS -
• A MODERN PLIGHT

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WHAT IS STRESS?

• The adverse reaction people have to excessive
  pressure or other types of demands placed on
  them (HSE)
• Is not an illness itself but can lead to
  alcoholism, heart disease
• Good and bad stress
• Stress costs employers 598 per employee (ACAS)

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CAUSES OF STRESS

• Job dissatisfaction
• Money problems
• Neighbours
• Moving House
• Family/Marital Problems/ Children

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CAUSES OF WORK-RELATED STRESS

• Six main causes of stress-
• Poor/sloppy management style
• Long hours culture
• Heavy workloads and crippling targets
• Threat of unemployment
• Shift work
• Bullying

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CAUSES OF WORK-RELATED STRESS

• Other causes of stress include-
• Lack of praise
• Lack of self motivation
• Poor problem solving support
• Boredom
• Poor communication
• Poor training
• Poor working relationships

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STRESS INDICATORS

• Stress can be shown in various ways at work and
  the usual tell-tale signs are-
• Poor work performance
• Attitude and behaviour e.g.. Poor time keeping,
  erratic behaviour
• Relationships breakdowns or cracks
• Absenteeism frequent and intermittent

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WAYS OF REDUCING STRESS

• Improve general management and work culture
• Good communication
• Close Employee involvement
• Good management support
• Appropriate training and support
• Dealing with problematic relationships at work
  i.e. bullying and harassment, grievances
• Proper investigation of complaints

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WAYS OF REDUCING STRESS CONT

• Decision making and planning
• Staff contribution re planning
• Induction process plan for employee to settle
  in
• Defining employee roles within organisation
  support and clear objectives
• Defining job responsibilities review job
  descriptions
• Proper training and use of skills
• Setting realistic targets

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Rorrison v West Lothian College and Lothian
Regional Council

• R was a nurse
• Bullied at work by Case Manager off sick for 6
  wks anxiety depression
• Given reduced duties then new job, mainly
  clerical had panic attacks, anxiety and
  depression
• R claimed psychological injury after her nervous
  breakdown
• Court of Session said no duty to safeguard
  employees against psychiatric injury unless
  reasonably foreseeable
• Requirement on R to show recognised psychiatric
  disorder
• Emotional distress is not the same as psychiatric
  illness - no disability or PI

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CASE LAW

• Rugamer v Sony held that functional overlay was
  not sufficient to bring a claim under the
  Disability Discrimination Act (DDA). Functional
  overlay person says physical injury but DR can
  find no signs is mental state
• Morgan v Staffordshire University held that use
  of terms such as stress, anxiety,
  depression and nervous debility do not
  entitle employees to bring a claim under the DDA
  no proof of mental impairment

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MEDICAL EVIDENCE

• It is essential to have medical evidence to
  support a diagnosis of mental/illness impairment
• There are two general methods of classifying
  mental illness/impairment
• Insist in your letter of instruction to a doctor
  that s/he classifies the mental illness/impairment

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EMPLOYMENT TRIBUNAL CLAIMS

• Loss of earnings (past future)
• Damages for injury to feelings
• Damages for psychiatric illness
• Cost of treatment (past or future)
• 3 month time limit from last act
• One bite of the cherry PI claim

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EMPLOYMENT TRIBUNAL CLAIMS

• Advantages of bringing claim at ET-
• Quicker
• Additional Claim Injury to Feelings
• Unnecessary to prove negligence
• Injury does not have to be foreseeable

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COUNTY/HIGH COURT CLAIM

• Cause of action - Negligence or breach of duty
• Duties arise under health and safety legislation
  or working time regulations 1998
• Three essential elements
• Duty
• Breach objective test
• Injury

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SUTHERLAND v HATTON

• Guidelines to how courts deal with negligence
  claims re psychiatric injuries
• Considered circumstances in which it can be said
  that psychiatric injury is reasonably foreseeable
• Commented that no occupations are so
  intrinsically stressful that injury would always
  be foreseeable
• Identified various factors relating to demands of
  job and employee

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SUTHERLAND V HATTON GUIDELINES

• Nature extent of work
• Workload greater than normal?
• Is work intellectually or emotionally demanding?
• Are demands of job unreasonable compared with
  other jobs?
• Are there signs that others doing the same job
  are also suffering from stress?
• Are there higher levels of absenteeism?

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SUTHERLAND V HATTON

• Court said following factors may be relevant-
• Are there signs of impending harm?
• Is the employee vulnerable?
• Is there a history of illness due to stress at
  work?
• Absences uncharacteristic frequent
  prolonged?
• Court said employer can expect employee to cope
  with job
• Employer not expected to make intrusive enquiries
  face value

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THE BARBER CASE

• Barber v Somerset County Council (HOL)
• Employer liable to employee for damages
• the overall test is still the conduct of the
  reasonable and prudent employer, taking positive
  thought for the safety of his workers in the
  light of what he knows or ought to know
• In Barber the Court concentrated on one question
  At what point is the employers duty to take
  action triggered, what the action should have
  been, whether it would have been good?
• Employers reactive proactive

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THE BARBER PRINCIPLES

• Sympathetic management culture necessary
• Do not assume employees have to complain before
  action taken
• A sick note tells you something is wrong take
  steps
• No occupations are intrinsically more stressful
• Generally an employer can take what he is told by
  the employee at face value
• The employer can only be expected to take steps
  that are going to do some good

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YOUNG V POST OFFICE

• Court of Appeal case - 2002
• Contributory negligence is an argument
• Claimant wrote HELP! on a large piece of paper
  and handed to employers
• CA held contributory negligence did not apply as
  Claimants earlier complaints ignored

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RECENT CASE LAW

• Pakenham-Walsh v Connell Residential (2006)
• Claimant divorced, bankrupt, daughter had serious
  illness
• Claimant discovered daughter had had an affair
  with her husband
• Claimed breakdown due to work
• She lost!

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RECENT CASE LAW CONT

• Intel Corporation v Daw
• Court of Appeal upheld decision of High Court in
  2006 that employer negligent as failed to reduce
  workload of stressed employee
• Damages of over 134,000 awarded
• Hatton relied on in Appeal as they had offered a
  counselling service
• Appeal dismissed by CA presence of workplace
  counselling will not alone discharge employers
  duty of care, had to reduce workload ultimately

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STRESS DISABILITY DISCRIMINATION

• In order to claim disability discrimination an
  employee must be disabled. The key ways of
  indicating that there is a disability are-
• Physical or mental impairment
• Long-term effects
• Normal day to day activities
• Substantial adverse effects
• Mental impairment must be clinically recognised

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REASONABLE ADJUSTMENTS

• Duty to make reasonable adjustments
• 1st Oct 2004 - defence of justification gone
• ETs test is objective - reasonableness
• Key criteria of reasonableness-
• Whether the adjustment would have the desired
  effect
• Costs incurred, disruption
• Employers financial resources

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REASONABLE ADJUSTMENTS

• Beart v HM Prison Service - employee off sick 8
  months with depression. Unfairly dismissed for
  claiming sick pay whilst working. OH said after 6
  months should have been redeployed. Failure to
  act by employer, despite disciplinary
  proceedings, was a failure to make a reasonable
  adjustment

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SHORT-TERM ABSENCES

• Review absences reasons
• Decide whether medical evidence necessary
• Decide whether you are potentially dealing with a
  disability and seek legal advice if necessary
• Use of disciplinary warnings/trigger warnings so
  employer can consult
• Dismissal may be for conduct or capability or
  some other substantial reason

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LONG-TERM ABSENCES

• Keep under review
• Personal contact
• Obtain medical evidence, consent
• Obtain all the facts
• Investigate further
• Consult before dismissal
• Consider PHI

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LONG-TERM ABSENCES CONT

• Consider reasonable adjustments
• Alternative position
• Assistance
• Reducing work load
• Lower paid/lower status roles
• Part-time role
• Dismissal would be on the grounds of capability
  or some other substantial reason
• The Employment Tribunal would ask how long
  should the employer be expected to wait for the
  employees return to work

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EMPLOYERS BEWARE

• Employers should not-
• Rely on Co Dr or 3rd party
• Take short cuts
• Become medical experts
• Employers should look at all the facts

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RETURN TO WORK INTERVIEWS

• Introduce return to work interviews
• Should be recorded in writing
• Find out reason for absence
• Is it likely to reoccur?
• Return to work questionnaire complete face to
  face

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GOOD PRACTICE RECOMMENDATIONS

• Review your induction process
• Review job descriptions
• Decide on a policy for stress management
• Consult with managers and employees
• Address stress prevention and stress counselling
  issues

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GOOD PRACTICE RECOMMENDATIONS cont

• Communicate policy to employees and management
• Train all Managers and key employees
• Set up arrangements for monitoring and review
• Review Absenteeism and introduce Return to Work
  interviews

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