Commonly asked questions on the legal issues relating to stress and mental ill health in the workplace
Here we list a selection of key case, on stress and mental ill health in the workplace, providing a summary of the decision and implications for employers.
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Herry v Dudley Metropolitan Borough Council | Employment Appeal Tribunal | 16 December 2016
Herry v Dudley Metropolitan Borough Council; Governing Body of Hillcrest School | Employment Appeal Tribunal | 16 December 2016
Issue: Stress and disability protections
A design and technology teacher, who was also a part-time youth worker, was continuously absent from work for over four years. The reasons for his absences for half of that time related to physical injuries including a fractured ankle, post-operative recovery, leg and ankle pain, and stress. For the second half of the absence period, the reasons changed from physical to more mental aspects, including work-related stress and anxiety.
An occupational health report stated that, from a medical point of view, he was physically and mentally fit for work and could return to work as soon as possible, but that there were management issues at the workplace causing stress.
The teacher was eventually dismissed for gross misconduct. He made numerous tribunal claims containing over 90 allegations, ranging from sex and race discrimination, harassment, and victimisation. Most claims were dismissed but the remaining claims included direct disability discrimination; a failure to make reasonable adjustments; disability-related harassment; victimisation; and unfair and wrongful dismissal.
The EAT had to decide whether the teacher was disabled.
There was little or no evidence that his stress had any effect on his ability to carry out normal day to day activities. The stress was largely due to unhappiness at perceived unfair treatment and, therefore, was more of a reaction to life events.
There was a distinction between a mental impairment, which is protected under the Equality Act 2010 and is capable of being a disability, and a reaction to life events, which is not protected. The evidence that stress had an adverse effect on his ability to carry out day-to-day activities was insufficient, other than it had an occasional impact on his dyslexia. The EAT confirmed that the teacher was not disabled, so the disability discrimination claim failed.
Stress alone is, therefore, unlikely to be classed as a disability. The EAT provided useful guidance on:
- when workplace stress may amount to a disability
- issues to consider when awarding costs against a claimant who can’t pay but may be able to in future.
In the light of the many allegations, the teacher was found to be unreasonable in pursuing his claims and was ordered to pay the employer’s costs. He had ignored costs warnings in the lengthy case and he unreasonably refused to accept the explanations for the acts he complained of.
Implications for employers
Under the Equality Act, disabilities are physical or mental impairments that have a substantial and long-term adverse effect on an employee's ability to carry out day to day activities.
Mental health issues are an increasing factor in sickness absence and are a predominant cause of taking time off for illness, but not all types of mental issue, including stress itself, are a disability. Even if an employee has a very long period of time off work, this does not mean there is a mental impairment amounting to a disability for the purposes of the Act.
The court said there was a distinction between two conditions with similar symptoms:
- A ‘mental illness’ or ‘clinical depression’ which is an impairment under the Act
- Similar symptoms which are not a mental health condition but simply a reaction to adverse life events, such as problems at work.
This case contains some further guidance. Employers may be tempted to think that stress cases are not a disability. However, employers should be cautious when deciding if an employee suffering from workplace stress is disabled, and should obtain occupational health and other medical reports to help provide an informed decision about whether employees are disabled.
In this case, the occupational health report had said the employee was physically and mentally fit for work and there was little or no evidence that his condition had any impact on his day-to-day activities; but in other cases, there may be more evidence that it did have an impact.
Being unhappy with decisions made by an employer, having a grievance against a colleague, or refusing to compromise at work, are not mental impairments. However, employees with evidence of ways in which their life has been impacted may have work-related stress disability discrimination claims. If an employee provides evidence to demonstrate a substantial adverse effect on their day-to-day activities and can show that this has lasted, or will last, for 12 months, then the definition of disability will be met.
Hartman v South Essex Mental Health Community Care NHS Trust | Court of Appeal | 20 January 2005
Hartman v South Essex Mental Health Community Care NHS Trust| Court of Appeal |20 January 2005
 EWCA Civ 6
Issue: Stress at work – foreseeability
In this case, appeals were heard in six joined cases involving claims for damages for psychiatric injury arising out of stress at work, giving further guidance on the approach to take to liability in such cases.
In the Hartman case, a nursing auxiliary at a children’s home was present at the aftermath of a tragedy when one of the children was run over and killed. She accompanied the child to hospital. After the accident, staff were given two weeks’ compassionate leave and offered counselling, but she did not take up the offer. She had a history of problems herself, including an unhappy childhood involving sexual abuse by her stepfather, domestic violence and the death of a 17-year-old son from meningitis. She had a history of taking antidepressants and of regular GP appointments for depression, anxiety and so on.
Following the accident, her hours increased significantly, putting her under great pressure, and eventually she applied for ill health retirement because of depression.
The Court of Appeal decided that the employer was not in breach of its duty of care. Working in a children's home was not in itself unduly stressful, and Hartman had worked without any problems for a number of years, including after the accident. There was nothing to indicate she was unable to cope with the overwork.
Although confidential medical information was disclosed by the employee to the occupational health doctor, the latter had concluded that she was fit for employment. The employer did not know about the confidential information disclosed to the doctor and there was not a foreseeable risk of psychiatric injury. In the absence of signs that the claimant was particularly vulnerable, there was nothing to indicate that she could not cope with the work required.
Implications for employers
The principles governing liability for psychiatric injury caused by stress at work are, in general, no different from liability for physical injury.
If a foreseeable injury arises from the employer’s breach of duty, that gives rise to the liability. Just because an employee suffers stress at work, that does not mean that the employer is in some way in breach of its duty. The risk of a mental health breakdown has to be one which the employer ought reasonably to have foreseen.
An employer is usually entitled to assume that employees can withstand the normal pressures of the job unless the employer knew of some particular problem or vulnerability. Whilst this principle is good law, it needs to be applied with care to the particular facts in any case.
Melville v Home Office | Court of Appeal | 20 January 2005
Melville v Home Office | Court of Appeal |20 January 2005
 EWCA Civ 6
Issue: Stress at work – foreseeability and occupational health service
This case is another of the appeals in six joined cases involving claims for damages for psychiatric injury arising out of stress at work, giving further guidance on the approach to take to compensation in such cases.
A healthcare officer at a prison in Exeter had duties which included recovering the bodies of prisoners who had committed suicide. He had attended eight such suicides, helping to cut down the body, remove a ligature and attempt revival. He suffered from nightmares and flashbacks and developed a stress related illness. He retired on the grounds of ill health aged 49.
The courts had to consider how foreseeable the officer’s mental condition was. Before he stopped work, the officer had given no indication that he was developing a stress related illness. The employer’s documentation said that those who were called on to deal with certain traumatic incidents in prisons, including suicides, might sustain injury to their mental health, and that such officers should receive support from the prison care team under procedures for dealing with the risk of injury to health.
The Court of Appeal concluded that it was reasonably foreseeable that the claimant might suffer psychiatric damage.
The employer knew employees who are exposed to traumatic incidents might suffer psychiatric injury and had failed to implement its own system. It was, therefore, liable.
Implications for employers
If a foreseeable injury arises from an employer’s breach of duty, that gives rise to liability.
The role of occupational health service assistance and guidance, whilst essential in many cases, can give rise to legal complexities. Occupational health services offered by the employer do not lead to the automatic conclusion that the employer knew there was a risk of psychiatric injury due to stress at work. However, the court reiterated the position in the Hatton case, that the availability of such a service does mean that an employer is much less likely to be found in breach, even if harm is foreseeable.
Employers should consider offering health services, including a confidential counselling service, but should not completely rely on the fact that they have relieved themselves of liability by simply offering the service.
For employees with mental health issues at work, including signs of stress, employers should do what a reasonably prudent employer would do for the safety of employees. This includes monitoring working hours to ensure the employee is not working excessive hours and relieving them of some of their duties if necessary.
Employers should implement the Health and Safety Executive’s Management Standards for work-related stress and provide management training on mental health at work and the potential dangers of prolonged occupational stress.
After long-term sickness absence, employers should hold a formal meeting to assess appropriate steps to ease employees back into work on a graduated basis. When managing employees on long term sickness absence, employers should also form their own opinion as to whether or not the definition of disability has been met.
Barber v Somerset County Council | House of Lords | 1 April 2004
Barber v Somerset County Council; Hatton v Sutherland | House of Lords | 1 April 2004
 UKHL 13  2 AER 1
Issue: Stress at work – forseeability
Here the Court of Appeal considered three leading cases together, often known as Hatton v Sutherland, and provided clear guidance on when employers might be liable for employees’ work-related stress. One of the cases was appealed to the House of Lords (equivalent of the Supreme Court today), and this report sets out the key principles arising from all three decisions. The cases involved employers fighting against compensation for employees who had suffered stress-induced psychiatric illness.
The Sutherland case involved a teacher who became depressed and took several lengthy absences for personal and family reasons. Within a year of seeing a stress counsellor, to whom she did not report any symptoms, she went off sick with depression again and did not return.
In the Barber case, another teacher had been head of the maths department at a secondary school. After a school reorganisation he became 'maths co-ordinator' with extra responsibility for publicity and public relations for the school. The new role was very stressful and he was regularly working between 61 and 70 hours a week. Before the summer holiday he had been off with stress and complained to the school management about the pressure he was under. A key issue in the case was whether the school had a duty to check if he was still suffering from stress after the summer holiday. In the new term, the teacher received little sympathy, and stress and depression were followed by a nervous breakdown. He had a crisis at school and started shaking a pupil. He left immediately, never to return. He sued his employer for damages for personal injury.
In the joined cases, the court ruled that the general principle was that employers should not have to pay compensation for stress-induced illness unless the illness was reasonably foreseeable, and that employers are normally entitled to assume that employees can withstand the normal pressures of a job.
In the Sutherland case, the Court of Appeal held that the teacher’s condition was not reasonably foreseeable.
In the Barber case, the teacher’s condition was foreseeable and he was awarded more than £100,000. The court decided that the employer had breached its duty of care and was liable under negligence law. As soon as an employer knows an employee is in danger of suffering psychiatric injury from occupational stress, the organisation is under a duty of care to take action to alleviate that stress or is liable for damages for any failure to do so.
The employer's duty to take action arose before the summer holiday and it should have made inquiries about Barber’s problems and seen what it could do to ease them. The employer did have a duty to check whether he was still suffering from stress after the summer holidays. At the very least, the senior management team should have reduced his workload and made sympathetic inquiries about the employee when he returned to work, taking more drastic action if needed.
Implications for employers
These joined leading cases all involved stress-induced psychiatric illness. The key guidance given by the Court of Appeal means that employers can ordinarily assume that employees are capable of coping with their job. In some cases, as in Barber, employers should at least make sympathetic enquiries and consider what could have been done to help.
The ordinary principles of employers’ liability apply – there are no special exceptions in stress claims. In this case, detailed guidance was given by Lady Justice Hale, the key principles of which include:
- An injury to the health of a particular employee attributable to stress at work must be reasonably foreseeable for the employer to be liable (rather than the employer knowing the employee was simply under pressure).
- An employer can usually assume that an employee can withstand the normal pressures of a job, unless it knows the employee has a particular issue or vulnerability.
- Employers can generally take what an employee says at face value and do not generally have to make searching enquiries of the employee, or seek permission for further information from doctors.
- Any employee must show that the employer’s breach of duty has materially contributed to their harm and identify what steps the employer could and should have taken to prevent the breach of duty.
- The employer is only in breach of its duties if it failed to take reasonable steps to avoid harm to the employee.
Employers should consider the demands of the employee’s work and workload and whether this is more than normal for that job. Overall the courts’ guidance suggests employers should consider whether the demands are unreasonable compared with other roles, and whether the work is more emotionally or intellectually demanding for this particular employee.
Employers should be alert to abnormal levels of absenteeism and signs from the employee, including previous breakdowns, uncharacteristic absences, and complaints or warnings from the employee or others about stress. Employers will be liable if it would have been plain enough to a reasonable employer that it should have done something about impending harm to the employee’s health.
The scope and size of the employer is relevant when assessing what was reasonable to prevent harm in the circumstances. Employers should only pay for the proportion of harm attributable to them.
An employer that offers a confidential advice service, counselling and treatment is less likely to be found in breach of duty.
Walker v Northumberland County Council | High Court | 16 November 1994
Walker v Northumberland County Council | High Court | 16 Nov 1994
 IRLR 35, HC
Issue: Employer’s liability for mental health at work
This case is probably one of the best known examples of a stress claim. Walker was a social worker with a heavy workload of child abuse cases. He had a nervous breakdown and returned to work some five months later having been promised assistance and a reduced workload. The promised assistance did not materialise, and he suffered another breakdown.
This was a landmark case because the High Court held that the local authority was liable for psychiatric damage caused to the social worker through stress. It was the first major case of an employer being held liable for stress at work. The local authority had failed to provide assistance or reduce Walker’s workload and, therefore, was in breach of its duty of care, and the risk was reasonably foreseeable. The employer made a payment of £175,000 to the employee in an out-of-court settlement.
Implications for employers
For a workplace to be considered safe, there must be both safe premises and a safe working system and environment.
The organisation must meet the standards of a reasonably prudent employer. The duty to provide a safe system of working for employees includes a duty to protect them from psychiatric harm and a failure to do this could lead to a claim if the harm is reasonably foreseeable.
It is often hard for employers to foresee which employees might be adversely affected by stress. If an employee has contributed to their own misfortune, then what is known as contributory negligence may apply and may partially reduce the employer’s liability.
Employers should be on notice of a risk of harm if, for example, an employee is absent in circumstances that may indicate they are suffering from stress, and organisations should take adequate steps to provide help to employees when they return.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
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