Andrew Stokes and Paula Cole advocate HR and health and safety professionals working closely with their legal advisers to manage workplace risks from problems like stress and discrimination

The provision of employment assistance programmes and counselling services is now commonplace at work. This is indicative of the toll that the demands of modern business and life in general are taking on our ability to cope. The latest Health & Safety Executive (HSE) statistics indicate that up to five million people in the UK feel stressed at work, with half a million believing their stress is making them ill. It is estimated that work-related stress costs society about £3.7bn every year.

The cause of stress-related absences is often not straightforward and may involve a cocktail of work and home pressures. These problems, particularly those associated with stress, bullying, harassment, discrimination and disability in the workplace, require careful management if absence levels, the risk of claims, or even enforcement action by regulatory authorities are to be reduced. This is demonstrated by the well publicised improvement notice served by the HSE on West Dorset Hospitals NHS Trust in respect of its management of stress in the workplace.

Recent case law in the areas of employment and health and safety illustrates the overlap in this area and the need for HR and health and safety professionals and their legal advisers to work closely together to manage these risks.

Considerations on disability

In Suzanne Bunning v GT Bunning & Sons Ltd (2005), the Court of Appeal, hearing an appeal from an employment tribunal, confirmed that the company's repeated failure to carry out an adequate risk assessment under the Management of Health and Safety at Work Regulations 1999, of the risks to a pregnant welder, constituted a fundamental breach of the implied term of trust and confidence, sufficient to entitle the employee to resign and claim constructive dismissal. The employment tribunal had already held that the company's failures constituted a detriment entitling Bunning to succeed in her claim for sex discrimination.

This case emphasises that organisations must ensure they pay due regard to the health and safety risks affecting their employees, particularly if they are under any form of disability or have a particular susceptibility, so as to minimise the risk of being faced with constructive dismissal claims. Employers should, however, be aware that, if they employ women of child-bearing age, the obligation to carry out pregnancy-related risk assessments applies, irrespective of whether the employer is aware that there are pregnant employees.

Similar care should be taken in managing the potential conflicts between an employer's obligations under the Disability Discrimination Act 1995 (DDA) and health and safety legislation, as has been well highlighted in recent case law.

In Lane Group plc v Farmiloe (2004), the employment appeal tribunal held that the employer was right to dismiss an employee, who could not wear suitable protective head and footwear because of his psoriasis. The tribunal held that the employer's duties under the Disability Discrimination Act were subordinate to its absolute duties under the Personal Protective Equipment at Work Regulations 1992. There is, therefore, an obligation to dismiss in these circumstances, provided all other avenues have been properly explored and the individual's safety cannot be adequately protected to comply with health and safety legislation.

This type of obligation, however, requires careful management, as the earlier Court of Appeal case of Coxall v Goodyear Great Britain Ltd (2002) confirmed. Here the court decided that the duty to remove an employee from work that exacerbated his asthma depended on the magnitude of risk involved. This therefore creates something of a grey area and leaves the door ajar for a possible DDA claim, in the circumstances.

Particular care should be taken to record the avenues explored to provide suitable personal protective equipment, or alternative work, to an employee with a disability, and to record the decision-making process of any dismissal.

Again, close liaison is required so that any competing employment and health and safety issues are balanced to minimise the risk of a claim.

The key reasons the employer was successful in the Farmiloe case was that it had undertaken a thorough investigation of possible alternative footwear to protect the employee against the undisputed risk of injury to his feet, and it was agreed that there was no alternative employment available.

In the circumstances, dismissal was held to be the only available response.

The increased importance for coordinated risk management between HR and health and safety professionals and their advisers in the area of stress and harassment is evident following the recent flurry of House of Lords and Court of Appeal decisions that have sought to clarify this area. The House of Lords in Dunnachie v Kingston Upon Hull City Council (2004) confirmed that the tribunal has no jurisdiction to award compensation for injury to feelings or personal injury, such as psychiatric illness in unfair dismissal cases.

Unfortunately, on the same day, the House of Lords created confusion and difficulty in its decisions in McCabe v Cornwall County Council and Others (2004) and Eastwood and Williams v Magnox Electric plc (2004).

These decisions left the door open for civil claims to be pursued in the courts, where a person has suffered psychiatric illness and losses caused by pre-dismissal unfair treatment, rather than by the dismissal itself.

Clearly an employee may now have two independent rights of action, one within the tribunal's statutory jurisdiction for unfair dismissal and one at common law in the courts. These claims may overlap.

This presents practical difficulties and requires a difficult analysis to be made to determine whether the employee's injuries and losses were caused by the pre-dismissal treatment or the dismissal itself. This makes these types of cases far from straightforward and underlines the importance of ensuring that appropriate evidence is obtained at the outset, and that the tribunal defence is prepared to avoid, wherever possible, an adverse finding which could have an affect on any subsequent civil claim.

Stress and bullying cases

The principles for liability for stress claims in the courts were laid down by the Court of Appeal in Hatton v Sutherland (2002). These principles were reaffirmed by the Court of Appeal in January 2005, when it heard six co-joined appeals in stress cases.

In 'work overload' cases, foreseeability of risk of injury is crucial, as the landmark stress case of Walker v Northumberland (1995) demonstrated.

Employers are often most at risk of an adverse judgment in this type of case if an employee has had a breakdown, returns to work and, because his workload and demands are not monitored or managed, suffers a second breakdown, as happened in the Walker case. Without a second breakdown, most work overload stress cases have failed, because of the difficulties of proving that a claimant's breakdown was foreseeable.

A new generation of stress cases are now being brought for bullying and harassment, and the law in this area is changing rapidly. The Court of Appeal in Banks v Ablex and Majrowski has confirmed that a claimant can have a cause of civil action in the courts for anxiety or injury from conduct constituting harassment under the Protection from Harassment Act 1997, and that an employer can, depending on the nature and circumstances of the harassment, be vicariously liable for a breach of that act by an employee.

While the guidelines set out in Lady Justice Hale's decision in Hatton v Sutherland (2002) are not law, they do provide useful guidance to employers in preventing stress claims arising. In practical terms, key steps which employers should consider include:

- using pre-employment medical questionnaires or examinations to identify potential issues at an early stage. The availability of advice from an occupational health department may subsequently prove invaluable on an ongoing basis
- providing a confidential counselling service which the employer actively promotes and facilitates the employee's use of
- training for managers who are responsible for managing performance, conducting appraisals and providing support and assistance to staff.

Above all, employers, once they are alerted to a prospective or actual problem, should investigate promptly and thoroughly. There may be no 'quick fix', but prompt action in consultation with the employee is often essential to reduce the likelihood of the employee suffering from stress-related illness and, therefore, the likelihood of a claim.

If, however, a company is unfortunate enough to face a constructive dismissal claim in a tribunal for harassment, it is crucial that it works closely with its legal advisers in the preparation of evidence and the defence for both the tribunal proceedings and the anticipated civil claim for personal injury damages that often follows.

Fundamentally, the key to the successful management of employment and health and safety risks in the workplace, to improve performance, reduce absence and the risk of claims, is the implementation of a coordinated, risk-reduction strategy and procedures, by your organisation's HR and health and safety functions.

Andrew Stokes is head of the safety, health and environment group, and Paula Cole is a partner in the employment law group, at national law firm Beachcroft Wansbroughs, Tel: 020 7242 1011, DDA UPDATE

The Disability Discrimination Act (DDA) aims to end the discrimination which many disabled people face. This Act gives disabled people rights in the areas of:

- employment
- access to goods, facilities and services
- buying or renting land or property.

The employment rights and first rights of access came into force on 2 December 1996; further rights of access came into force on 1 October 1999; and the final rights of access came into force in October 2004.

The Act defines a disabled person as someone with 'a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.' The employment provisions apply to employers with 15 or more employees.

The provisions, including those that require employers to consider making changes to the physical features of premises that they occupy, have been in force since December 1996.

There are two ways in which an employer might unlawfully discriminate against a disabled employee or job applicant:

- by treating him or her less favourably (without justification) than other employees or job applicants because of his or her disability, or
- by not making reasonable adjustments (without justification).

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