Claims for mental health issues arising out of employment – collectively known as ’occupational stress claims’ although covering a wide variety of potential causes such as overwork, lack of support and bullying – are not new. They are, however, on the increase and employers would be wise to be alert to this.
Such claims tend to fall into two broad categories: 1. occupational stress; and 2. bullying,
harassment and discrimination.
In regards to occupational stress, there is nothing inherently unhealthy or inappropriate about an employee being busy, feeling under pressure or being emotionally invested in a piece of work. This is experienced in many if not all types of employment at some point.
The duty of care owed by an employer to an employee is not to ensure their safety or the absence of any foreseeable risk of injury, the duty is to take such care for their safety as is reasonable in the circumstances and not expose them to unnecessary risk of injury.
The foreseeability of impending risk of actual harm to health is what a tribunal court considers and, upon an employer being aware of such an impending risk, what (if any) positive steps were taken in respect of it.
Mental health issues relating to bullying/harassment and discrimination fall into two broad categories, and both can give rise to personal injury claims as well as claims in the employment tribunal.
Under the Protection from Harassment Act 1997, employers can be held vicariously liable for acts of harassment committed by their employees. It is not uncommon to see allegations of bullying said to constitute breach of the common law duty of care in occupational stress cases.
As a quick reminder, discrimination in the workplace occurs when an employee is treated unfavourably due to a protected characteristic; including gender, sexuality, race, religion, pregnancy or disability. Such behaviour can cause mental health issues in the victim which can give rise to claims as above.
Psychiatric injury is not required for an employment tribunal claim. A claim can be successfully submitted without formal diagnosis.
Advice for you - the employer
You cannot guarantee that your employees will not suffer mental health issues whether related to work or otherwise, nor are you expected to. However, you are expected to take such care for the safety of your employees as is reasonable in the circumstances.
Practically, the following will be important in preventing and defending claims:
Risk Assessments that cover the risk in question.
Documented procedures for grievances.
Identification of ‘Red Flags’, so requests for help, notification of issues etc are taken seriously. Taking positive steps to address them.
Provision for confidential discussion/advice - that might be in the form of an Employee Assistance Programme provided by your private medical provider or an external HR provider.
Occupational health support being available and engaged as necessary.
Keeping records of interactions including emails and meeting notes.
Liaison with occupational health support and/or the GP before any return to work after time off due to work related psychiatric issues.
If you would like your current processes reviewed or feel that your company would benefit from new/updated guidance and staff training implemented to go alongside this, please do get in touch and we'll get the ball rolling for you. We're here to help - just ask!