With regards to the common law duty of care, I’ll be assessing whether the stressful nature of some jobs can result in employers being made accountable for employee’s illnesses resulting from workplace stress. Stress can be defined as “the adverse reaction people have to excessive pressures or other types of demand placed on them” 2018, Unison.org.uk (1). Stress is evident in all business practises and because of this manager’s need to focus on minimising the effects that it can have on the workforce. Individuals will react differently to stress, so it may be hard for businesses to accommodate for every individual employee. So, the question needing to be answered is at what point is stress considered to require a duty of care?
Establishing a duty of care
To establish if a duty of care exists, the three-part test (Caparo v Dickman) needs to be followed: was the harm or loss caused reasonably foreseeable? Was there a sufficient relationship of proximity between the claimant and the defendant for a duty to be imposed? In all circumstances is it fair, just, and reasonable that the law should impose a duty on the defendant? Jones, 2017 (2) In relation to stress, there is obligation owed by employers if it can be proven that the job was a contributory factor to the claimant’s illness. Even if it is one factor out of many, the employer can still be found liable.
Advantages of employer liability
One of the main advantages of employers being liable for workplace stress is that organisations are likely to have a better reputation if they are taking care of workers physical and mental well-being. They will be seen to have gone ‘above and beyond’ what is expected from them, and therefore will attract a higher number of valuable staff. In addition to this, if employees know that employers are taking their needs into consideration, then they will be more inclined to work harder, boosting labour productivity which can result in a better overall business performance. This can be supported by the organizational healthiness model which suggests to us that how healthy an organization is will directly affect service quality and indirectly via its impact on staff commitment and well-being. From this it can be determined employers that focus on enhancing the workforces welfare will provide a better performance than those who do not Cox and Leiter, 1992. (6)
Another reason why employer liability is advantageous is because there have been various studies demonstrating the effect stress can have on the human body. For example, it has been discovered that stress and depression are just as likely to cause a heart attack as being fat or having high cholesterol (Harvard Medical School. The Times, 28th September 2005). (7). If these studies prove correct, then stress should be taken just as seriously as physical health considering it has the same potential outcomes.
Disadvantages of employer liability
A major disadvantage of employer liability is the fact that it will sometimes be viewed as unjust. An employee could use their stress as a gain and put all responsibility on the employer even if there are many other factors contributing to the stress, such as home life or personal problems. The fact that responsibility would then be placed on the employer to prove otherwise, can be unfair as the likelihood is that they will be found liable. How can this be established when it is not quantifiable? It’s a normative statement meaning that there is no numerical way to measure liability making it more of a complex subject. (TRY USE A REFERENCE)
Furthermore, number 2 of the 16 ‘practical propositions’ allows us to understand the complexity around mental disorders being more difficult to foresee than physical. Its seen that employers are normally entitled to assume employees can withstand the normal pressures of work. Additionally, number 4 states that “an employer is normally entitled to take what the employee says at face value” Smith and Wood, 2018. (8) These propositions make apparent how problematic employer liability is and the negative effects of forcing employers to be responsible for the stress and various illnesses that staff can develop at the workplace.
Employers being accountable for workplace stress of employee’s
Irrespective of the nature of work, employers are liable for the well-being of their employees to ensure they are safe-guarded from the risk of psychiatric harm. (3) This can be illustrated in the Walker v Northumberland City Council case whereby an employee received reparations for damages suffered because of work related stress resulting in psychiatric injuries Smith and Wood’s, 2018 (4). This case demonstrates that the type of job is irrelevant when considering the legal responsibility that the employer owes: walker had a breakdown in which he was not given any support. When the second breakdown occurred, the employer was liable because of neglect to help. Therefore, the stressful nature of some jobs is beside the point when deciding if the employer has broken their duty of care with employers.
Another similar case representing employers being liable for workplace stress is Lancaster v Birmingham City Council, where reparations had to be given for the neglect of vulnerable staff.
It can be discovered that no occupation is deemed to be fundamentally any ‘more dangerous’ than an another to a person’s mental health. (9). It’s clear to see workplace stress occurs in all industries and some people are more prone to becoming ill as 1 in 4 people suffer from mental health at some point in their life mind.org.uk. (10) Considering the magnitude of figure, is it fair to shift liability onto just employers or should it be regarded as more of a societal issue?
Overall, even though many United Kingdom workers suffer from stress in the workplace, some job types can inherently cause more stress than others due to the excessive hours or the responsibility some jobs come with, for example a paramedic being potentially in control of people’s lives. Employers should be held accountable for their staff’s well-being as the common law of duty states if ‘psychiatric harm’ occurs then employers have breached their contract and can be made to pay compensation or reparations for their actions; shown by the Walker v Northumberland City Council case.
Possibly use – 5 step risk assessment on employee job – ensure low absentees and low staff turnover
Unison.org.uk. (2018). online Available at: https://www.unison.org.uk/content/uploads/2017/10/Tackling-Stress-at-Work-PowerPoint-HD-TK.pdf Accessed 26 Nov. 2018. (1)
Anon, (2018). online Available at: https://epdf.tips/stress-at-work-management-and-prevention.html Accessed 28 Nov. 2018. (3)
McManus, S., Meltzer, H., Brugha, T.S., Bebbington, P.E. and Jenkins, R., 2009. Adult psychiatric morbidity in England, 2007: results of a household survey. The NHS Information Centre for health and social care. (10)
Jones, L., 2017. Introduction to business law. Oxford University Press. (2)
Smith and Wood’s Employment Law 10 ed 137-143.pdf. (2018). 10th ed. pp.137-143. (4)
epdf.tips. (2018). Stress at Work: Management and Prevention – PDF Free Download. online Available at: https://epdf.tips/stress-at-work-management-and-prevention.html Accessed 28 Nov. 2018. (5)
Rose, J., Jones, F., Fletcher, C., 1998. The impact of a stress management programme on staff well-being and performance at work. Work ; Stress 12, 112–124. (6)
Smith and Wood’s Employment Law 10 ed 137-143.pdf. (2018). 10th ed. (8)
https://www.employment-relations.co.uk/wp-content/uploads/2012/05/Case-Law-re-stress-research-16.01.14.pdf. (2018). .(9)
(NEED TO ADD (7) and make sure references are in order.