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Managing work place stress – tips for employers & employees in light of Easton v B&Q

Lydia Banerjee

According to many of my clients there has been an increase in
reports of stress at work, absence due to stress related conditions and
termination of employment for the same.
Many reasons are offered as to why this might be the case. Perhaps we are more aware of our
psychological health. Perhaps some of
the taboo of psychiatric illness has fallen away. Perhaps the workplace has become more stressful. Perhaps being signed off with stress is a
convenient way to avoid difficult work place situations. Whatever the reason there is no doubt that
legal advisers working with employers and employees need to be aware of the
duties arising in these situations[i].

In the recent High Court decision Mr Justice William Davis had to
determine whether or not B&Q had been in breach of a duty of care to their
employee Mr Easton. Mr Easton was a high
performing manager at B&Q who was diagnosed with depression in May 2010 and
was unable to work thereafter. Mr
Easton was an experienced manager of large retail stores who had managed the
pressures of such work over a considerable period without experiencing any
undue stress relating to his work.

Mr Easton’s claim in the High Court focused on issues in the store
around a refurbishment, a restructure in relation to staff hours and the handling
of Mr Easton’s return to work.

The judgment contains detailed findings on the facts and of course
every case of this naturally is highly fact specific however it also serves as
a helpful reminder to advisers on some common issues[ii].
 

  1. Not granting an ex gratia
    extension of sick pay is not a breach of a duty of care. It may become so if there evidence of some
    form of promise. In the present case no
    such evidence was available.
  2. The fact that a grievance
    procedure reaches a conclusion which is adverse to an employee and that this
    adds to their distress is not, of itself actionable. Inadequacy or impropriety in the grievance
    process may amount to a breach of duty but on the facts of this case no such
    allegations were made.
  3. An employer is generally
    entitled to take what he is told by his employee at face value, unless he has
    good reason to think to the contrary.
    There is no general obligation to make searching enquiries of the
    employee or seek permission for medical input.
  4. Outward signs of stress may
    trigger an obligation to make enquiries and potentially to complete a risk
    assessment. Factors such as frequent or
    prolonged absence, complaints from the employee or others, or a known history
    of stress related illness are all relevant.
  5. Employers are not expected to
    be telepathic. An employer is usually
    entitled to assume that the employee can withstand the normal pressures of the
    job unless he knows of some particular problem or vulnerability. If there is a particular situation in the
    workplace which is causing stress or anxiety it needs to be raised expressly
    with an appropriate person. Hints,
    jokes, sarcastic remarks do not assist.
    There is no harm in saying “
    X is a
    problem and I need assistance to deal with it
  6. The threshold for breach of
    duty is high, the test requires foreseeability of the harm in fact suffered,
    the courts recognise that many or most employees will experience periods of
    being overworked and stressed at work.
    Very few go on to suffer psychiatric illness as a result. An employer’s obligation to act arises when
    the indications are plain enough for any reasonable employer to realize that he
    should do something about it.
  7. Many people hold down demanding
    jobs with the support of medication for underlying psychiatric illnesses. The mere fact that a person remains on
    medication is not an indication as to how their work should be managed.
     

Much of what is said in these cases is common sense. Employers need to look after the mental
health of their employees: it is good for business, good for the economy and
good for society. Employees must also
look after their mental health including using established processes for raising
concerns and seeking help as required. Effective
management of people involves two-way communication. Whoever we are asked to advise we should
start with the questions: what do we know; what do we need to know; have we asked
for it? Whether it be assistance in a
job or medical advice in relation to how to handle a situation – if we do not
ask we cannot complain if we do not receive.



[i] This comment does not address situations where the psychiatric illness
meets the definition of a disability under the Equality Act 2010. Many situations may well be covered by this
Act.

[ii] The leading authority in respect of psychiatric injury caused by stress
in the workplace remains Hatton v Sutherland [2002] ICR 613 in
particular paragraph 43 which was expressly relied upon in this case. For advisers this paragraph should always be
in mind.

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