Cases on Stress I
A number of cases have been successfully taken in the UK and Ireland, for the consequences of stress. The leading UK case involved a nervous breakdown brought on by overwork. The employer had failed to take steps to reduce the workload or provide the appropriate support. The claimant managed a number of teams of social service field workers, in an area with a large number of difficult childcare issues.
The employee suffered a nervous breakdown because of stress and was absent for three months. He discussed the position with a superior, and it was agreed that assistance should be provided to reduce his load. In the event, very little assistance was given, and he was expected to clear the backlog that had built up during his absence. Six months later, he suffered a more serious mental breakdown and was forced to cease working permanently.
After dismissal, he took an action claiming breach of the employee’s duty of care to provide a safe system of work and not to cause psychiatric damage and loss, by reason of the nature and circumstances of his work. The court held that the risk was reasonably foreseeable, that the employer breached his duty and that it was liable for the mental injury thereby occasioned.
Cases on Stress II
In another leading case, a teaching head of department took on an additional role. This resulted in working long hours, stress, and work overload. He informed management, took periods offs, producing sick notes saying he was stressed and suffered from depression.
He informed management, took periods off and produced sick notes stating that he was stressed and suffered from depression. He discussed the issues with senior management, but nothing was done to investigate or remediate the situation. He then suffered a serious mental breakdown and became permanently incapable of work. The teacher sued his employer for personal injuries as a result of the illness.
The House of Lords allowed the teacher’s appeal. It accepted that liability for negligence might be established on the facts, although it believed the case was on the borderline.
It said the test was whether the employer’s conduct was reasonable and prudent, in light of what it knew ought to have known. The three-week period of certified stress leave should have led the employer to make further enquiries and /or take steps to reduce the employee’s workload and monitor the position.
Basis of Claim
The general principles of the law of negligence apply to claims for mental injury. An employer may be liable for loss and damage which an employee suffers by reason of the negligence in the failure to provide a safe system of work and/ or by the breach of statutory obligations. Under the principle of vicarious liability, an employer is liable for the actions of his employees.
It is now well established that an employer may be liable for psychiatric injury suffered in consequence of the employer’s breach of duty, even where it is not a consequence of personal injury. Loss or damage can include psychiatric injury and stress. The injury must be a definite identifiable and diagnosable psychiatric or psychological injury or illness.
The courts accept that it is harder to foresee mental injury than physical injury. Normally an employer can assume that an employee can withstand ordinary pressures. However, where the employer knows of a particular problem or vulnerability, it is more likely that that mental injury will be deemed foreseeable if nothing is done to mitigate the causes.
The employer must weigh the likelihood of risk of mental injury occurring and its potential consequences. It must balance the effectiveness of precautions and their expense and inconvenience.
The size of the employers’ operations and its ability to allocate resources is relevant to the extent of its duty. An employer may, for example, offer a confidential advice service or reference to counselling or treatment services.
Where there is a recognised general practice which has been followed for a substantial period, and similar circumstances occur, it is entitled to follow it unless common sense shows the practice to be flawed. The employer must keep abreast of developing knowledge.
Duty to Respond I
A finding of negligence entails the identification of the steps which the employer should have taken. Civil claims have succeeded on negligence principles, in some cases of grossly excessive workloads, which caused a mental breakdown. In these cases, the employer had prior notice, through sick-notes medical reports, etc. and took no action to counter the stress.
If the particular job entails high levels of stress and / or is particularly demanding, if the demands of the job are unreasonable or if there is an abnormal level of sickness or absenteeism, then the risk of employer liability is higher and should be monitored.
There may be indications of impending harm to health from stress. It may not be initially foreseeable, (for example in the case of a high workload), that an employee may suffer a mental injury such as a nervous breakdown. If, however, he has shown evidence of stress or possible mental breakdown, an employer may risk liability if this is ignored.
Duty to Respond II
Where an employer has greater than average knowledge of the risk, it may be obliged to take more than average precautions. The employer must weigh up the risks, the likelihood of injury occurring and the potential consequences. In this case, the three-week period of certified stress leave should have led to inquiries, and steps should have been taken to reduce workload and monitor the position.
An employer may be liable for failure to facilitate an employee in overcoming stress. In a case involving people’s subject to post-traumatic stress disorder in employment, the reasonable employer may be expected to refer the employee to counselling or treatment.
Where an employee has taken time off for stress, employers should take particular care to monitor the risk of further stress, depression, or a nervous breakdown.
In addition to the risk of civil liability for occupational stress, bullying, and harassment raise issues of health, safety, and welfare legislation compliance for employers. Breach of much of the legislation constitutes an offence which can be enforced by administrative notices and ultimately by prosecution, fines, and even imprisonment. The legislation is enforced by the Health and Safety Authority.
The legislation requires that employers manage workplace activities, in such a way as protects the health, safety and welfare of employees. The general duties of employers in relation to health, safety and welfare at work, embrace an obligation to prevent in so far as reasonably practicable, factors and circumstances which may lead to serious occupational stress. Similar duties apply to fellow employees.
The employer may be subject to liability for breach of statutory duty, due to failure to prevent stress which causes a diagnosable injury to its employees. The risk assessment requires the identification of potential causes of stress. The HSA Guidance assists in this regard. Failure to undertake an assessment and implement its results is likely to constitute a breach of duty, sufficient to be the basis for a claim for damages. It is also likely to constitute evidence of negligence.
Destruction of Mutual Trust
There is an implied duty on the employer to maintain trust and confidence. A number of stress claims have been founded on breach of the contractual obligation of trust and confidence, owed by the employer to the employee. In a number of cases where there is evidence of a specific breach of trust by the employer, causing specific psychological injury, the employer has been held liable.
The courts have been willing to impose liability on the basis of breach of the duty to maintain trust and confidence in relatively extremescenarios only. Employers have been held liable in some cases where employees have been isolated and systematically undermined and have thereby suffered ill health, anxiety and ultimately nervous breakdowns.
Nervous shock embraces post-traumatic stress disorder. Recovery is allowed in principle where negligence causes nervous shock, without physical injury, subject to certain limitations. The courts have allowed recovery for primary victims, who are involved directly and witness the shocking incident or event. The courts have sought to limit recovery by secondary victims, such as bystanders and persons who hear of the event later or see it in the media.
Exposure to a traumatic event, leading to post-traumatic stress disorder, may lead to liability for the employer if it is negligent in respect of the occurrence of the traumatic event. The UK courts have held that the primary victim, who is one within the zone of physical danger, may recover if a psychiatric injury is suffered. They have sought to limit the extent to which the secondary victims may recover for personal injury.
Shock / Trauma
A sudden traumatic incident may lead to post-traumatic stress disorder. The employer may be liable for the incident concerned and its consequences. He may also be liable for failure to take steps to mitigate it, once it has occurred. In appropriate cases, the employer should recognise the symptoms and take steps to deal with them
If an employer closes its eyes to the signs of post-traumatic stress disorder, it may fail in its duty to the employee. If evidence comes to the employer’s attention, then, depending on the circumstances, there may be an onus on the employer to take steps to assist the employee in dealing with the consequences. The principles are similar to those set out above,
There have been a number of cases where compensation has been granted for post-traumatic stress disorder, where an employee has witnessed a traumatic workplace incident and suffered shock. As applies generally an employer may be liable where its negligence or that of a person for whom it is responsible, causes foreseeable psychiatric injury / nervous shock to witnesses.
The Irish courts have taken a more liberal approach to recovery, than that taken by the UK courts. Recovery for nervous shock or post-traumatic stress disorder has been permitted in the workplace context in Ireland, subject to less restrictive limits.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 4
Civil Liability for Industrial Accidents 1993 White Vol 1 Part 1
The Law of Torts McMahon & Binchy 2013 4th Ed Ch18
Insurance Law Buckley 4rd Ed 2016 Ch 13
Charlesworth & Percy on Negligence 2014 Walton Ch 10