Jonathan Trott, who today returned home from the Ashes series in Australia, is the latest high profile casualty of stress related illness. Trott is different to many others in their own place of work due to the focus of the media and pressure of fans expectations. However, the fundamentals of the problem and the end result for the individual are the same whether you are in the public eye or not.

Given the increased uncertainty across all industries since 2008, combined with pressures on personal finances it is perhaps not surprising that rates of stress related illness are at record levels. In the workplace, what are the obligations of the employer and the employee? David Denovan-Smith of rhw Solicitors takes a look:

The legal obligations of an employer

Whilst there is no one statute that addresses workplace stress, employers do have varying duties under the Health and Safety at Work Act to ensure the health, safety and welfare of their staff. A more general obligation to provide a safe working environment also arises under common law.

Causes of work related stress can vary widely and the trigger point obviously also varies from person to person. Typical causes may involve an overload of work, bullying, repeated lack of support or a very poor working environment. Other contributing factors can be bereavement, family problems or illness.

If you are suffering from stress and are concerned it is interfering with your day to day work life, you should bring the matter to the attention of your employer. Your employer should be able to then provide you with the right level of support. If the situation worsens and you want to raise a grievance against your employer, they could raise a defence if they can show they were simply not aware of the stress you were under and the effect it was having upon you.

Resolving your stress in the workplace

If you wish to flag up the stress you are under, initially approach your line manger or the HR section. Keep records of all exchanges with individuals in the business, such as emails or written correspondence. Hopefully the situation will improve but if you wish to take matters further you may need to produce evidence of what you told your employer, whilst working.

What can be done to alleviate the situation and find a workable solution?  Some ways to take the matter forward would be to:-

  • Request a flexible working arrangement or change in hours.
  • Ask for clarification of your exact roles and responsibilities. It’s too easy to accept new responsibilities as you go along in a role which can add up to much more than one persons job!
  • Request training or support to help alleviate your overload of work.
  • If one of the problems is related to communication problems, look at implementing more regular meetings or simplifying lines of management.
  • Educate yourself over the grievance process.
  • If you really find yourself in a position where you just don’t want to carry on, a mutual termination of your employment on suitable financial terms might be an option. You should take professional advice before proceeding in that direction.

What are my rights when I am off work for long term stress?

There is often a contractual right to sick pay within an individual’s employment contract, whereby the employer spells out what the employee is to receive when sick and over what period. In the absence of a contractual provision, employees are entitled to receive Statutory Sick Pay (SSP) from the employer.

In order to safeguard itself against a claim for unfair dismissal, the employer should consider consulting with the employee’s medical advisors and possibly have an employee examined. If the employer can show it has properly informed itself of the state of employee’s state of health and prognosis and following such prognosis the employer makes a perfectly reasonable decision to dismiss the employee, the employee is likely to have little come back. Once again you should obtain professional advice before embarking on this course of action.

Of course, if the ill-health or sickness was caused by the employer’s actions, this may well have a bearing on whether there will be further repercussions.

Can you make a claim?

Stress claims against an employer are not easy claims to win. A claim would generally be either for personal injury or constructive dismissal. A personal injury claim would arise from the duty of care that employers have to their staff. You would have to have suffered a recognised psychiatric illness, such as clinical depression, and you would have to show this was caused primarily by stress at work. A formal diagnosis will need to be made by the relevant physician.

It would need to be shown that it was reasonably foreseeable by your employer that you would develop a mental illness. Your employer will need to have been aware of your worsening condition. An employer is usually entitled to assume that an employee can withstand the normal pressures that the job entails unless there are reasonably clear signs that this is not the case.

If you are in the situation where you have contracted out of the Working Time Regulations and work in excess of 48 hours a week, then that, in itself, is usually not enough to bring a claim against an employer for stress on the basis that such stress was reasonably foreseeable by that employer.

An additional claim you may be able to bring is for constructive dismissal. It would have to be shown that your employer is in breach of the implied term in every contract to provide a safe system of work, or the further implied term of mutual trust and confidence between employer and employee. The breach must be sufficiently serious for you to resign and so this is not a step which should be taken lightly. Constructive dismissal cases can be difficult to win and there is a need to act quickly in response to any breaches of contract. You should, therefore, obtain legal advice as soon as you are contemplating such a claim.

If you have been dismissed whilst absent from work due to stress, it is possible that this may amount to an unfair dismissal if your employer has acted unreasonably or has not followed the correct procedure. Strict time limits apply and you should seek urgent professional advice if you think this may apply to you.

Conclusion

If you have any concerns about the matters covered in this article or any other employment law issues, please contact rhw’s employment law team on or