Employment Law

Foreseeability of stress related illnesses

Health and Safety in the workplace is usually a straight forward matter. In most industries, say construction, building, forestry, it is easy enough to identify the major hazards and take precautions. Countless rules and regulations tell the employer exactly what systems they have to have in place to ensure the safety of their employees.

However, when it comes to office environments and stress related ‘injuries’, i.e. burn-out, stress, depression, there are not many rules around. This is partly because it is difficult to define what ‘stress’ actually is. It is even harder, if not impossible, to measure the impact of stress on the individual. Stress creeps up on you and can go from stimulating to depressing in a very short period of time. The main problem with stress is that not even the people directly affected by it, the employees, know what is going on until its too late. So how can the employer protect them and do something about it? Most HR departments offer free education courses and encourage people to take leave and recharge whenever possible. Often this sounds very hollow and out-of-touch when there are deadlines to meet and staff shortages to cope with.

In a recent UK case the High Court considered whether an employer was liable for an employee’s psychiatric illness, allegedly caused by stress at work. The case turned on whether the psychiatric injury was “reasonably foreseeable”.  Foreseeability depends on what the employer knows, or ought reasonably to know, about the individual employee. This may include:

– the nature and extent of the work done by the employee, as compared to others in similar roles, or whether the relevant role is particularly physically or emotionally demanding for that employee; and
        
– any signs indicating impending harm to health, or particular problems or vulnerabilities (e.g. recent absences which the employee or others in similar roles have indicated may be due to stress at work).

Absent contrary indications, the employer is generally entitled to take the employee’s representations, including a return to work, at face value, and need not make searching enquiries.

This makes sense. An employer can not mind read and has to rely on the employee’s representations (including medical certificates). Technology and more relaxed data laws might in the future allow employers to more closely monitor an employee’s stress levels and take pro-active steps to avoid stress related illnesses, but we are not there yet.

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