"European wide surveys detail how work related stress has cost employers approximately €13 billion in a single year alone"
We’ve all felt it, right? Deadlines, targets, dealing with customers, clients, co-workers, management, overwhelmed and overworked – no-one is immune to feeling stress in the workplace which can, admittedly, at times be a productive driving force. But what if that pressure, that rush of adrenaline that pushes you to work harder, impacts upon your mental health and general well-being?
Fundamentally stress is a negative feeling that comes with innumerable physical symptoms such as raised blood pressure and headaches together with psychological effects such as racing thoughts and a feeling of worthlessness. In the workplace it can be caused by many factors: long hours, lack of job security, poor communication and bullying leading to absenteeism and poor performance. Historically due to its abstract nature it was easy for employers to ignore; however recent European wide surveys detail how work related stress has cost employers approximately €13 billion in a single year alone. If this is not enough to make employers sit up and pay attention, what will?
Together with a common law duty of care, the main piece of legislation is the Safety, Health and Welfare at Work Act, 2005 which provides that an employer has a duty to provide a safe system of work – measures which are described as ones that are ‘reasonably practicable’ and are referred to in Sections 8 to 17 of the Act. As seen in the case of McGrath v Trintech the duty extends to stress which is to be treated like any other hazard in the workplace. This case endorsed 16 ‘golden principles’ in dealing with work place stress and were adopted from the UK case of Sutherland v Hatton. Amongst these principles is the fact that employers who offer a confidential advice service are unlikely to be found in breach of their duty. Interestingly, the principles treat all occupations equally with no particular sector being designated as intrinsically dangerous.
How can the employer ensure that they are compliant with the legislation? Firstly, their Safety Statement must cover work related stress. Secondly proper training should be provided to employees to ensure that they are capable of carrying out their job. Thirdly, dignity at work policies should be reviewed. Most importantly, a risk assessment should be implemented: all risks should be identified, evaluated and resolved or, where this is not possible, managed. The Health and Safety Authority speak of Prevention, Management and Minimisation; clearly having the appropriate systems in place in your work place cannot be underestimated. Frustratingly for the employer there is no ‘one size fits all’ solution covering all sectors and the risk assessment should be tailored for their workplace. Employers should also note that if they are aware that an employee is prone to stress they have a greater duty of care to the individual.
Adequate systems must be adhered to
If the employers have the systems in place but are not implemented correctly, it may lead to a breach in Health and Safety law and effectively sound a death knell to the employer’s defence if the matter goes to trial – take the 2014 case of Ruffley v Board of Management of St. Anne’s School. Here the plaintiff attempted to have her problems resolved internally but her treatment left her with no other option but to take legal action. She was awarded €255,000 for harassment and bullying by the High Court who criticised the systems in place at the school. This can be contrasted with the case of O’Toole v County Offaly VEC where the plaintiff did not report the grievance to management prior to taking the case. The judge stated that he was satisfied that the VEC in this instance did everything it could to enable her to avail of the complaints procedure and the fact that it was not pursued was entirely the result of her own actions. This was a critical point in leading the plaintiff to lose her case.
The case of Sweeney v The Board of Management of Ballinteer Community School is an extreme example concerning the plaintiff retired teacher who took an action against the former school principle who harassed her and hired a private detective to follow her. The High Court awarded her €88,000 in damages after it found that the Board of Management failed in its duty as the plaintiff’s employer and ought to have been aware of the situation.
Reasonableness and co-operation
Both employer and employee must act reasonably in dealing with the grievance. In Berber v Dunnes Stores Ltd the employee’s actions were described as difficult and unreasonable and lead to a break down in the employer-employee relationship. A number of issues arose with regard to Mr Berber and his conduct was heavily criticised. The Supreme Court overturned the High Court decision and found in favour of Dunnes Stores who had tried to resolve the matter.
The case of Glynn v Minister for Justice Equality and Law Reform is also interesting to note: here the plaintiff worked as a clerical officer with the local Garda Station and claimed that she had been bullied and harassed by co-workers. The High Court found in favour of her employers. One of the points made by Justice Nicolas Kearns was that she had been dishonest in not divulging previous depressive episodes and there had been a noted lack of effort by her to co-operate with management to resolve the matter internally. Most importantly, Justice Kearns also acknowledged the distinction between occupational stress and workplace stress and stated that “occupational stress is something which every employed person may experience at some stage of their working life..” He stated that workplace stress, however, can be actionable.
Legislation requires employers to be extra vigilant in relation to their employee’s well-being: is this too high a duty? It may well be given the fact that stress, in some instances, does not manifest itself externally and there is no finite list of stress indicators. However it appears from the foregoing that if employers adhere to the above principles, the courts will more often than not conclude that they have complied with their legislative obligations.