Riskassessment should not only aim to reduce the occurrence of accidents in theworkplace but also psychological illness in accordance with current law. By Linda Goldman and Joan LewisCertifiablystressedOHprofessionals are familiar with medical certificates for “stress” or”stress-related illness”. Where the illness is long-term, theaffected individual may claim to be disabled within the meaning of theDisability Discrimination Act 1995 and therefore to require adjustments to theworkplace or system of work to enable them to cope with their disability onreturning to work. Thetest for disability where there is a psychological disorder is first that theillness be a recognised medical condition and second that the condition has asubstantial effect on the ability of the individual to carry out everydayactivities. The fact that a person is unable to carry out work of a particularkind or for a particular employer is not sufficient to render a person disabledwithin the meaning of the Act.ThediagnosisTheWorld Health Organisation international classification of diseases – ICD-10:Classification of Mental and Behavioural Disorders, Clinical Descriptions andDiagnostic Guidelines – has no category listed as “stress” or”stress-related illness”. Section F43, however, is headed”Reaction to severe stress and adjustment disorders”, indicating thatstress is an aetiological factor, separate from any diagnosis or prognosis. Anacute stress reaction is, by definition, of short duration and in relation to aspecific event, although not all victims suffer such a reaction. Some stressorslead to chronic conditions of varying degrees and duration. Removalof the stressor generally leads to recovery although a chronically stressfulenvironment may require greater change. OH professionals should remember that,unless a diagnosis is for a recognised illness, calling a condition”stress” is the equivalent of calling a sprained ankle “slippery floor” or”trip”. RiskassessmentConsiderwhether it is foreseeable that stress factors could cause significant long-termillness. In legal terms, intolerable stress levels could give rise to claimsfor discrimination, breach of contract and personal injury. Also, an employeewho is unable to cope with stress may leave and claim constructive dismissal. Litigationrisk exposure may be reduced by a competent risk assessment which takes accountof stressors and advises individuals on coping with unavoidable stress.Remedial steps such as counselling may be useful but it may also be helpful torecommend pro-active arrangements such as assertiveness training or furthereducation. Itis crucial that allegations of stress or bullying are investigated fairly andobjectively. It is often helpful to use a third party consultant to conductsuch an investigation.Riskassessments should cover factors which could cause psychological illness butphysical implications should not be ignored since the physiological reactionsto stress appear to increase levels of susceptibility to minor infections andmusculoskeletal disorders. In the medical model of the workplace, it isessential to attain a moderate level of stress, which provokes alertness, asagainst an unacceptable level which could cause increased levels ofwork-related illness. CausationInany legal action arising out of stress overload, it is important for theclaimant to show that the illness was a direct result of factors which theemployer knew or ought to have known about. The common psychological stressors,reflected in recent cases, relate to employees being required to work to anunusually high level of demand, whether in hours, skill requirements or changesin working patterns, management or colleague support. Somestressors, such as bullying, are difficult to identify: physical bullying willbe covered by a wall of silence put up by its protagonists. Some forms ofnon-physical bullying are identified by management as being robust applicationsof maintaining job output or standards. That form of work pressure is subtlebut dangerous and should be investigated. Preventionis better than cureTheemployer is under statutory and common-law duty to maintain a safe environmentand system of work. The Health and Safety at Work Act 1974 requires a healthand safety policy which is updated regularly to take account of the currentemphasis in psychological criteria. Fromthere, the next step is risk assessment under the Management of Health andSafety at Work Regulations 1992. Given the interest in psychological safety atwork, bullying and other demands on the mental health of employees should berated of equal importance to physical risk factors. These assessments willreduce the risk of litigation only if action is taken to correct defects. Ifsteps were not taken to prevent a reasonably foreseeable injury, the injuredperson is likely to be awarded damages for physical as well as psychologicalinjury, provided that the injury is significant. Long-term illness cases posethe greatest financial risk to the employer who needs to balance judgement whenlooking at someone with repeated bouts of sick-leave certified as”stress”. Either the individual is an oversensitive malingerer orsomeone who is at the early-warning stage of illness, sending out a very strongwarning signal that all is not well at the workplace and that directintervention – always cheaper than litigation – is needed. LindaGoldman is a practising barrister at Lincoln’s Inn. Joan Lewis is director ofAdvisory Consulting and Training Associates, Nr Wing, Bucks.CaseRoundupWalkerv Northumberland County Council  IRLR 35Thiswell known case is worth repeating as it is often thought that the socialworker had a straightforward win. In fact, he sued his employer for damages inrespect of two nervous breakdowns as a result of working excessive hourswithout adequate support. TheCourt held that although the conditions of his job were stressful, the firstnervous breakdown was not reasonably foreseeable although the employer was heldliable for the effects of the second break down as by that time the employershould have known he required support. Thematter was settled out of court for about £175,000 before appeals were heard.The employer appealed against the decision that it was liable for the secondbreakdown and the employee disputed the fact that the first breakdown was notthe fault of the employer. Bradleyv London Fire and Civil Defence Authority  IRLR 47TheHigh Court confirmed that a pension was payable for psychological injuryresulting from working conditions. It was held that the ordinary meaning of”injury” is an impairment of a person’s physical or mental condition.Bradley was claiming a pension payable through his employer’s scheme where afirefighter is permanently disabled as result of an infirmity of mind or bodyoccasioned by a “qualifying injury” – an injury or disease receivedin the execution of his duties. Theinjury was whiplash sustained in an accident on the way to work. Continuingsymptoms caused him to become anxious and depressed about his ability to carryout his work. He was also subject to considerable stress in his work duties.The medical referee appointed by the Secretary of State, in accordance with theemployer’s appeals procedure, had correctly identified the cause of the illnessas being due to the stresses of work, so that the employee was eligible for thepension. Greenwoodv Hertfordshire Social Services,  Case No 1501872/98Theemployee reported sick from work in November 1997 and did not returnthereafter. He presented a series of certificates for “stress-relatedillness” for a year, save for two certificates for depression covering asix-week period. Hiscondition deteriorated from November 1998 when he put in a compensation claimfor disability discrimination. The condition subsequently became permanent andchronic. The tribunal upheld on appeal to the Employment Appeal Tribunal, thatthe employee was disabled within the meaning of the Disability DiscriminationAct 1995 at the time he brought the proceedings notwithstanding his ability todrive 75 miles at a time and to undertake mechanical repairs to a motorvehicle. The deteriorating nature of his condition, probably depression, inNovember 1998 and his difficulties in concentration brought him within thedefinition of disabled. Bensonv Wirral Borough Council  National Press ReportsAhead-of-year teacher accepted an out-of-court settlement of £47,000 when shetook early retirement due to stress-related anxiety and depression caused by anincreasing workload. Benson complained that her employer failed to give her anysupport. Theteacher ran a course which was heavily subscribed. She sought support from theschool administration but was told she was a victim of her own success andwould have to manage on her own. Wherea case is settled out of court, it does not form a precedent on which futurecases can rely. However, each illness has a “value” for which broadparameters are set in the Judicial Studies Board Guidelines, publishedannually. The guidelines suggest the following factors are considered:–ability to cope with life and work–effect on relationships–whether medical help has been sought and effect of treatment –future vulnerability–prognosisThedecision to settle the case may have been taken to avoid the further stress ofa court hearing. Inany case, she had to take early retirement and probably suffered moderatelysevere damage for which the guidelines suggest awards between £15,000 and£17,500. The remainder of the settlement would have been loss of salary up tothe expected date of retirement. Stressing the positiveOn 1 Feb 2000 in Musculoskeletal disorders, Personnel Today Previous Article Next Article Related posts:No related photos. Comments are closed.
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