stress and the law
by Wendy Moore
Most people find work stressful at times. Many people cope with stressful jobs on a daily basis. But when excessive demands, impossible deadlines or long hours make work intolerable and cause your health to suffer too it can be tempting to think the law might hold the answer.
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Increasingly, people are taking employers to court to claim compensation for damage to their health caused by stress. Teachers, council workers and others have won large payouts in legal challenges over stressful working lives. Many more cases are in the pipeline. So is court action the way to make employers take stress seriously?
Taking legal action against employers on stress is no easy option. The legal route is a minefield and can cause further stress.
'It is a growing trend right now. People are bringing a lot of stress claims,' says Warinder Singh Juss, a solicitor with Thompsons law firm, who has fought several such cases. But he warns: 'Bringing a claim for stress is quite stressful in itself.'
a legal minefield
One difficulty is that there is no specific law governing stress at work. Companies have a 'duty of care' under the Health and Safety at Work Act 1974 to ensure people are not made ill by their jobs. The Health and Safety Executive (HSE) has made clear this covers stress-related illness. Employers also have a responsibility under the Management of Health and Safety at Work Regulations 1992 to assess risk to staff health and take reasonable steps to prevent harm. Again, the HSE has stipulated this covers stress.
However, employees cannot use this legislation directly to take action against an employer. And so far the HSE has not itself taken action against companies where stress is a problem, although this is not ruled out in future.
All stress actions to date have used civil law, where an employee sues their employer for negligence and makes a claim for damages through the county or high courts.
landmark cases
There have been several high profile actions including:
the social worker
John Walker, a social worker with Northumberland county council, suffered two nervous breakdowns due to stress at work. He was awarded £175,000 in an out-of-court settlement in 1995, in the first successful claim for damages on stress grounds.
the council officer
Beverley Lancaster was a draughtswoman with Birmingham city council who suffered a breakdown after she was moved to a front-line post in housing, without proper training. She was awarded £67,000 in court in 1999. This was the first case in which an employer admitted liability for causing personal injury due to stress.
Read her personal story in life experiences.
the teacher
Teacher Muriel Benson won £47,000 damages in an out-of-court settlement against Wirral local education authority in 1999. She had been forced to retire after suffering stress for years due to excessive workload and other pressures.
the cook
NHS cook Denise Beechill took a case in 1999 against Community Health Sheffield NHS Trust after she was transferred without proper training into a nursing job, leading to two nervous breakdowns. Her case was settled out-of-court, with a 'gagging order' preventing details being publicised.
Few stress cases ever get as far as a court but many others a settled out of court, including cases against private businesses. The cases which do reach court set legal precedents which help decide future claims. There are three main principles courts look for in potential cases.
a watertight case
stress is not enough
- An employee has to prove they have suffered damage to their physical or – more likely – mental health. 'Normal stress is not compensatable,' says stress lawyer Mr Juss. Although many people suffer stress at work, they are not entitled to claim compensation unless they can show injury, he says. Most successful claimants have suffered at least one nervous breakdown.
work is to blame
- Claimants must prove their health was damaged by work not anything else. Employers may try to prove stress was due to a divorce, bereavement or other personal problems. Most people who have won cases not only had stressful jobs but were also denied appropriate training or support to deal with this pressure.
injury was foreseeable
- The employer must have been able reasonably to foresee that pressures at work could cause a stress-related injury. Often this is the stumbling block. Successful claims have often involved an employee who had already suffered a nervous breakdown being returned to a stressful situation.
the problem has been flagged up
- A ruling by the Court of Appeal in February 2000 laid down a new requirement. In a case which stripped two teachers and a factory worker of awards totalling nearly £200,000, previously given by county courts in compensation for work-related stress, the judges set out guidance for future county court hearings clarifying which cases should succeed.
The judges' ruling made clear that any employee feeling excess stress should alert their boss to the problem and give them a chance to sort it out before pursuing legal action. The guidance states that employers are right to assume staff can cope with normal pressures unless they are warned of a particular problem. Any employer offering confidential counselling and treatment for stress is likely to be exonerated from failing to tackle stress.
Stress cases are also time-consuming and costly. There is no legal aid for personal injury claims any longer and most claims have been pursued by trade unions acting on behalf of members. Some cases have also been won on a 'no-win, no-fee' basis – where you only pay your solicitor if you win damages – but many solicitors may be unwilling to take this risk.
way forward or last resort?
Despite their leading role in fighting stress cases, unions are not quick to recommend the legal route. Public service union UNISON has been at the forefront of stress claims and has several more in the pipeline. But spokesperson Anne Mitchell says legal action is the 'last resort'.
'It is not an easy path for anybody to choose,' she says. 'We would rather not have to take one single stress case because when it gets to that stage you have a person whose career and often their home and personal life has been destroyed or certainly put under huge strain,' she says. But court action has at least forced public service employers to 'sit up and take notice' of stress as a problem.
Teachers' union the NUT has won several stress cases and has more claims waiting. Spokesperson Olive Forsythe agrees legal action is not the preferred route but says: 'High profile cases like these make it clearer and clearer to employers that they have to take their responsibility seriously.'
life experiences
Beverley Lancaster, who won £67,000 damages against Birmingham city council in 1999, says fighting her case for stress was 'one of the most harrowing experiences' she has ever had. 'I would not want to go through it again. If it was not for the support I had around me at the time, I would have just crumbled.' Beverley, 45, was redeployed from a technical job as a draughtswoman to a neighbourhood housing office where she had to deal with tenants' problems on a daily basis. She was promised but given no training. She began to feel ill after three months, then felt progressively worse and was forced to take long periods off sick. She finally consulted her union, Unison, who believed she had a strong case. She went ahead because she felt she 'had nothing to lose'. The council admitted liability on the first day in court and the court awarded damages. Beverley has finally begun working again, as an assistant with special needs children in school but believes the stress she suffered has left lasting damage.
know your rights
There is no specific right in law to a stress-free job but various employment laws can help limit some of the worst pressures at work. Knowing your rights in itself can be reassuring.
British and European laws lay down maximum working hours, minimum pay and proper health and safety regulations. New laws also now allow employees to spend more time with children and cope with emergencies.
fair dues
Discrimination can be hugely stressful. Everyone has a right not to be discriminated against on grounds of race, sex (including being pregnant), disability and trade union membership in applying for a job and at work. You are entitled to equal pay with workers of the opposite sex in a similar job.
pay
Low pay causes stress. You should receive at least the minimum wage set by government. Check out the current rate on the Department of Trade and Industry website www.dti.gov.uk.
health and safety
You have the right to work in a place which is safe and does not make you ill or cause you injury. This means the pressures of your job should not make you ill.
being ill
If you are off sick – with stress as any other illness – you are entitled to statutory sick pay (SSP) after you have been away for four days in a row, for up to 28 weeks. If you have to give up your job because of sickness, including stress-related illness, you should be entitled to incapacity benefit, which you can claim from your local social security office. There is no statutory limit on taking sick leave but your job contract may stipulate conditions.
working hours
We work longer hours in Britain than anywhere else in Europe and this is a clear cause of stress. Now the European working time directive has set a limit on working hours and outlined rights to proper breaks and holidays. For most employees this means:
- a maximum average of 48 hours a week
- four weeks' paid holiday a year
- at least 11 hours not working every day
- a day off every seven days
Some groups of workers are not covered by the rules.
being sacked
If you are unjustly sacked – for whatever reasons – you can take your case to an employment tribunal.
new rights to help families
Juggling demands of work and family can be immensely stressful. The government has promised to make work more family-friendly. New rights introduced in 2000 are a step forward.
having a baby
Anyone who is pregnant is now entitled to 18 weeks' maternity leave (previously 14 weeks). This applies from day one of your job, even if you are pregnant when you start. If you have worked for your employer for more than one year (previously two years) you can take another 29 weeks' unpaid leave.
dads too
Fathers too are now entitled to time off when a new baby is born. A new law entitles either parent to take up to 13 weeks' unpaid leave to look after a child within the first five years of its life, so long as the child was born after December 15 1999 and you have worked for your employer for at least one year.
emergencies
All workers – male and female – are now entitled to take reasonable time off work to look after people they are responsible for when emergencies crop up. This new right is designed to let you sort out an unexpected problem which affects your child, partner, parent or someone who lives with you as part of the family. The amount of time off is expected to help you deal just with the immediate problem. Emergencies might include
- a breakdown in childcare such as when your childminder is ill
- when a child or other dependant is ill
- when a child or other dependant dies
- an accident or incident involving your child at school.
Our stress at work feature has more information on work-related stress and you can find ideas for relieving work stress in our managing stress in the workplace feature.
help and info
taking action
If you feel you are being denied any workplace rights you can take your case to an employment tribunal. Legal aid is not available to fight such cases, so you could seek help from your trade union or – if you are not a member – a local citizens advice bureau or law centre.
You can find a local citizens advice bureau from the National Association of Citizens Advice Bureaux website at www.adviceguide.org.uk.
You can find a local law centre from the Law Centres Federation.
If you are thinking of taking a stress claim you can find a local solicitor in the Law Society's online directory at www.solicitors-online.com or you could try the Accident Line.
information
You can get several leaflets about your employment rights from the TUC.
Information on stress and the law can be found on the www.hse.gov.uk/pubns/stresspk.htm.
There is more employment information on the Department of Trade and Industry website www.dti.gov.uk/er.
Information for working parents is available from the Working Families' Free Legal Helpline for Low Income Families (Tel 0800 013 0313) and on their website www.workingfamilies.org.uk.
reading
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Essentials of Employment Law by David Lewis and Malcolm Sargeant (Chartered Institute of Personnel and Development, 2004) |
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Know Your Employment Rights in a Week by Hilton Catt and Pat Scudamore (Hodder & Stoughton Educational, 2002) |
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Managing Workplace Stress by Steve Williams (John Wiley and Sons Ltd, 2002) |
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The Penguin Guide to Employment Rights by Hina Belitz and Dominic Crossley-Holland (Penguin Books, 2002) |
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Your Rights at Work by Bob Watt and Rosy Border (Cavendish Publishing, 2003) |
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(updated October 2002, resources updated April 2005)
