Stress disability discrimination and absenteeism Paul Callegari Jackie

Stress, disability discrimination and absenteeism Paul Callegari Jackie Cuneen 20 June 2007

Cost of Stress § HSE estimates that 12. 8 million working days were lost to stress, depression and anxiety in 2004/5 § Each new case of stress leads to an average of 31 days off work § Work-related stress costs society about £ 3. 7 billion every year (at 1995/6 prices)

What is stress? § HSE defines stress as: § "the adverse reaction people have to excessive pressure or other types of demand placed on them"

The legal framework § No legislation in the UK which specifically deals with stress: § § § Health and safety legislation Common law negligence Disability Discrimination Acts 1995 and 2005 Sex, race discrimination, etc (harassment) Unfair/constructive dismissal Contractual duties

How do you avoid/tackle stress or other absences? § Purpose of session to provide: § practical guidance on identifying and tackling stress and sickness absence § an update of recent developments at common law and under the DDA

§ Stress at work claims broadly fall into 2 categories: § overwork § bullying

Common law negligence – personal injury § Employers have a common law duty to take reasonable care for the health and safety of employees in the workplace § Employers can be liable for negligence if they fail to prevent a reasonably foreseeable risk of physical or mental injury to the employee

When is an employer liable for work related stress? § Hatton -v- Sutherland others (2002) § Reasonable foreseeability § CA overturned 3 of the rulings in 4 joined stress cases: § Held employers should not be liable for work related stress unless they know, or reasonably ought to have known, that a particular employee is vulnerable to workplace pressures

Hatton Guidelines – Foreseeability / breach of duty 1. 2. 3. 4. No special control mechanisms apply to claims arising from stress at work. The ordinary principles of employer's liability apply The question is whether the injury to a particular employee was reasonably foreseeable: is there injury to health (not occupational stress), and is the injury attributable to stress at work? Foreseeability depends on what employer knows or reasonably ought to have known about the employee. Mental disorder is harder to foresee than physical injury, but may be easier to see in a known individual. Employer entitled to assume employees can withstand normal pressures of job unless it knows of vulnerability No special occupations that should be regarded as intrinsically dangerous to mental health*

Hatton Guidelines – Foreseeability / breach of duty 5. 6. 7. 8. Various factors relevant to issue of foreseeability: (i) the job: heavier workload, abnormal level of sickness or absenteeism; and (ii) the employee: problem/ vulnerability/ uncharacteristic frequent/prolonged absences Employer entitled to take what he is told by his employee at “face value”. He does not generally have to make further enquiries of the employee or medical advisers To trigger the duty to take action the signs must be “plain enough for any reasonable employer to realise that he should do something about it” Employer only in breach if failed to take reasonable steps, having weighed up the risk and seriousness of injury occurring, costs and practicability of prevention, and the justification of running the risk

Hatton Guidelines – Foreseeability / breach of duty 9. 10. 11. 12. 13. Size and resources of employer are relevant when deciding what is reasonable. Balancing act the individual and interests of other employees Only expected to take steps which are likely to do some good. Employers who offer confidential counselling are unlikely to be in breach* If only reasonable step is dismissal/demotion, employer will not be in breach by allowing a willing employee to continue at work* Need to identify steps which employer could/should have taken before finding breach

Hatton Guidelines - Damages 14. Employee must show that breach has caused/ materially contributed to the injury 15. Employer should only pay for the injury which is attributable to his wrongdoing 16. Assessment of damages will take account of any pre-existing disorder or vulnerability

Heavy work load § Barber -v- Somerset County Council (2004) § HL: Hatton Guidelines "useful practical guidance" but do not have statutory force § Not clear case of a flagrant breach of duty, but duty to act triggered by B's 3 week absence due to stress § To avoid liability employers must take immediate action once on notice of an employee suffering from mental health problems at work

Long hours / Working Time Regulations § Hone -v- Six Continents Retail Ltd (2005) § Publican's injury foreseeable and caused by working hours § Highly relevant that H had to work 90 hours per week and refused to opt out of the 48 hour working week under the WTR § Packenham–Walsh -v- Connel Residential (2006) § PW’s injury not reasonably foreseeable or caused by hours § CR in breach of WTR but P voluntarily worked extra hours and did not complain

Knowledge of medical condition § Pratley -v- Surrey County Council (2002) § P concealed stress and doctor’s certificate did not record stress § SCC could not have reasonably foreseen P at risk of breakdown § Hatton “take at face value” but caution “constructive notice” § Vahidi –v- Fairstead House School Trust Ltd (2005) § School was not in breach of duty when it permitted V to continue working following absence for depression § Relapse was foreseeable. School foresaw this, provided support § Knowledge does not mean liability

Confidential counselling § Daw -v- Intel Corporation (2007) § D employed in a financial role from 1988. She had two children, the second in 1998. She suffered from post-natal depression May 2000, D was promoted. Her workload/ hours increased § By March 2001, D's health had deteriorated. She e-mailed her line manager saying she was "stressed out" and "demoralised" and referred to her Post Natal Depression § June 2001, D was absent with depression. D attempted suicide

Daw -v- Intel Corporation (2007) HC § HC held IC liable for psychiatric injury § IC was on notice by March 2001, but not before then § Despite D's medical history and complaints about workload the risk of a breakdown could not have been reasonably foreseen before then. D had made a full recovery from PND and was considered to be a "resilient employee" § The counselling service alone was not sufficient. IC had the resources to ameliorate D's situation. Urgent action should have been taken to reduce D's workload and ensure she saw a doctor

Daw -v- Intel Corporation (2007) § CA upheld HC's decision § It rejected IC's submission that, applying the guidance in Hatton, providing a counselling service was sufficient. Management could have ameliorated D's situation and knew what action was required § "counselling services are not a panacea by which employers can discharge their duty of care in all cases"

Work place bullying § Green v DB Group Services (UK) Ltd (2006) § § § G company secretary assistant from 1998 to 2003 She had disclosed to DB that she had suffered from depression G suffered daily abuse from peers and junior colleagues She complained to manager in 1998, but behaviour continued G had 2 breakdowns. G did not return after the second in 2001 G brought claims for both personal injury and under Protection from Harassment Act 1997 (PHA)

Green v DB Group Services (UK) Ltd (2006) § G was subjected to concerted bullying campaign § DB's HR department was guilty of a "culpable want of care". It failed to take appropriate steps to discipline / relocate individuals § G's injury reasonably foreseeable. DB directly for negligence and also vicariously liable for employees’ acts as done in employment § DB also liable for harassment under the PHA

Green v DB Group Services (UK) Ltd (2006) § Office banter can have a cumulative, serious effect § Stereotype bullying by senior management but can be junior colleagues § Awards substantial. G was awarded £ 800, 000! § Employers need to advocate zero tolerance § Employees enjoy greater protection against bullying and harassment at work. In addition to other rights of action employees can now bring claims under PHA

Disability Discrimination § "physical or mental impairment" § physical – no need for physical cause or illness (Millar -v- Inland Revenue (2006)) § mental – "impairments" covered (e. g. dyslexia), not just illnesses (Dunham -v- Ashford Windows (2005)) § cancer, HIV and multiple sclerosis automatically covered

§ Types of discrimination: § direct discrimination (reason for treatment is disability) – cannot be justified § disability–related discrimination (reason for treatment is related to disability but is not disability itself) – can be justified § failure to make reasonable adjustments § harassment

§ Direct discrimination § comparator needed § High Quality Lifestyles Ltd -v- Watts (2006) § HIV and employee dismissed § comparator is employee with equally infectious disease, rather than employee with no disease

§ Disability-related discrimination and reasonable adjustments § O'Hanlon –v- Commissioners for HMRC (2007) § disabled – clinical depression. 365 days' absence over 4 years, 320 disability-related § HMRC policy: full pay for 6 months' absence in any 12 months, half pay up to a further 6 months, subject to overriding maximum of 12 months' paid leave in any 4 year period

§ Mrs O'Hanlon: § failure to pay full pay meant HMRC had failed to make reasonable adjustments; § subjected to disability-related discrimination by failure to pay in full, which was not justified

§ Court of Appeal § payment in full is not a reasonable adjustment § disability-related discrimination claim succeeded: § comparator was someone not absent NOT someone absent for non-disability-related reason § BUT justified – economic reasons

§ Justification § must be "material" and "substantial" – subjective (Jones -v- Post Office (2001)) § Closely linked to reasonable adjustments

Reasonable adjustments § Does the "provision, criterion or practice" place a disabled person at a substantial disadvantage? § Smith -v- Churchill Stairlifts plc (2006) § S – lumbar spondylosis § not able to lift cabinet so refused training § ET: majority of population would have same difficulty so no "substantial disadvantage" § CA: proper comparator = successful candidates who could lift, so there was a substantial disadvantage § duty to make adjustments triggered

§ Assessment of adjustments required § Tarbuck -v- Sainsbury's Supermarkets Ltd (2006) § failure to consult employee is not an automatic breach of duty § has employer complied with duty? § EAT: employer would be "wise" to consult