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With Brexit on the horizon and Austerity continuing, despite what the chancellor says, businesses and local authorities continue to tighten their belts. This means workers are expected to do more for the same pay. In some sectors two jobs are becoming one and employees are expected to just “get on with it” and be grateful they have a job. It is no surprise that work related stress is on the rise. Unison’s recent report found that three quarters of Scots felt unable to deal with stress at work in the last year and one third of those had suicidal thoughts as a result. This is unacceptable. Employers and shareholders reap the benefits of cutting staff to the bare minimum and the benefits brought by technology and in doing so push staff to breaking point, and beyond.

Time management imageThe HSE’s definition of stress is “The reaction people have to excessive demands or pressures, arising when people try to cope with tasks, responsibilities or other types of pressure connected with their job, but find difficulty, strain or worry in doing so.” It is typically caused by long hours, lack of control, boredom, isolation, fear of bullying or harassment, poor working environment and low pay.

Some stress at work can of course give us the edge we need to get the work done. A surgeon for example couldn’t stand over a patient on an operating table, with no food or water, and exercise the required level of concentration for such a long time without stress. However, different people react to it differently and much depends on how the stress arises. Most employees will have short periods when their job is more difficult, for example accountants are likely to be fairly stretched in the run up to the tax year end. Lawyers will have increased stress in the lead up to a big case running in court. When that stress becomes more than just a short burst it can lead to a psychiatric injury.

Employers have a duty to protect employees from any risk to their health and safety. “Stress” in itself is not considered a harm. However, where the line is crossed and that stress causes a psychiatric injury then the employee may be entitled to compensation. Employers ought to conduct a risk assessment which should include stress as a potential hazard and implement control measures to avoid harm to their employees.

Whilst it is an epidemic in Scotland the law is very much in favour of the employer. To successfully claim compensation an employee must show:

  1. That they suffered a recognised psychiatric injury as a result of stress at work;
  2. That it was “reasonably foreseeable” that they would do so;
  3. That the stress was caused by the employers’ negligence.

There has never been a successful case in Scotland so the authorities come from cases which have been successful in England. They are few in number and lay down very specific hoops for an employee to jump through. Most cases fail because the employee cannot show it was reasonably foreseeable they would suffer a psychiatric injury as a result of work place stress. The courts held that an employer was entitled to assume that an employee was coping until it is demonstrated otherwise. That threshold is high. Essentially until they actually do suffer a psychiatric injury as a result of workplace stress then it is not foreseeable that they would do so. The employee therefore requires to be off work with a sick note stating “work related stress” and then return to work and be off again with “work related stress” before they can make a claim. The second absence is considered foreseeable as the employer is then on notice and ought to correct the problem. They can of course only claim compensation if the reason for the stress was the same on both occasions and was negligent. The court has essentially held that excessive workload, disciplinary procedures, and personality clashes will not amount to negligence which rules out the vast majority of these cases.

Often an employee will have done a job for over 10 years then more and more responsibilities and work is put on them as a result of cuts. In some cases it has crippling effects on the employee to the point of attempted suicide yet they cannot claim compensation. This is an incredibly unsatisfactory position in law. The employer ought to risk assess and have procedures in place to ensure stress at work is properly managed and doesn’t lead to a psychiatric injury. Workers ought to be valued and not simply expected to “get on with it” in a “difficult economic climate”.

With growing awareness of mental health and increased research regarding the effects of workplace stress perhaps now is the time for change in this area. Is now the time for balance to be achieved? Is now the time for technology to benefit the employee rather than be used as a means to put more work on employees to the benefit of employers? Is now the time for employers to recognise that stress is the silent assassin in the modern workplace? If not now then when!

Blog by Alan Calderwood, Solicitor

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