JANICE WALSHE
ASSOCIATE
BCM Hanby Wallace
Mental Health and the Law
Wednesday 20th January 2010
Mental Health in the Workplace:
• 13,000 adults suffer from stress, anxiety
and depression
• 9 days sick leave per year per employee
• Stress now most commonly cited reason
for sick leave
What is Stress?
Stress is a reaction, not an illness
“An adverse reaction people experience
when excessive pressures or types of
demands are placed on them”
Legal Framework for Dealing with
Workplace Stress:• Health and Safety Legislation
• Common Law/ Contract of Employment
• Employment Equality Legislation
The Safety, Health and Welfare at Work
Act, 2005
•
Section 8: General duty on employers to do everything he
or she cam, as fair as is reasonably practicable, to ensure the
safety, health and welfare of his or her employees.
• Section 8(2)(b):
Imposes an obligation to outline in HR
policies behaviour which will not be acceptable, and to
outline what action will be taken where employee
behaviour poses a threat to health and safety of other
employees.
Hazard Identification and Risk Assessment
Employer must:
• Identify all hazards in the workplace
• Keep a written risk assessment of the risks associated with
each hazard
• Keep a written Safety Statement
Safety Statement
Must State:
• The hazards identified and risks assessed
• The protective and preventive measures taken and
the resources provided
• The emergency plans and procedures
• The duties of the employees
• The names, job titles and positions of anyone
assigned with safety responsibilities
Common Law Duties
Employers owe employees a duty under the common law to
take reasonable care for the health and safety of employees in
the workplace.
Negligence
• If an employer is in breach of its duty of care to its employee,
and
• it is reasonably foreseeable that that an injury would result from
the breach and,
• a loss or personal injury to the employees has resulted, the
employee will succeed in a negligence claim.
The UK Position:
Walker v Northumberland County Council (1995):
The second nervous breakdown suffered by the employee was
reasonably foreseeable because, at that point, the employer was
on notice of his vulnerability.
Walker-v- Northumberland County Council
•
The UK High Court: the duty of care must be measured
against the yardstick of reasonable conduct on the part of
the employer. Reasonableness depends on:-
• the nature of the relationship
• the magnititude of the risk of injury that is reasonably
foreseeable,
• the seriousness of the consequences
• cost and practicality of preventing the risk.
The UK Position:
Sutherland v Hatton (2002):
UK Court of Appeal: Stress claim no different to any other negligence
based personal injuries claim, i.e. there must be:
– A duty of care
– Breach of the standard of care
– A causal link between the breach and the harm
– Damage resulting from the breach
Sutherland –v- Hatton
16 "practical propositions" for dealing with
stress claims.
Sutherland –v- Hatton
“Stress Propositions”
•
a) Has there been injury to health as distinct from occupational
stress?
• b) If answer to (a) is yes, is it attributable to stress at work, as
distinct from other factors?
Sutherland –v- Hatton
“Stress Propositions”
•
Foreseeability depends on what the employer knows or ought
to know about the individual employee.
The employer is
entitled to assume that an employee can withstand noral
pressures unless he is on notice of vulnerability.
• No occupation more intrinsically dangerous than any other
occupation
Hatton v Sutherland
“Stress Propositions”
Employer only in breach of his duty if he fails to take such steps
as would be reasonable in the circumstances.
Sutherland –v- Hatton
“Stress Propositions”
Employer who has a confidential advice service, with
referral to appropriate counselling/ treatment services,
unlikely to be in breach of duty.
Sutherland –v- Hatton
“Stress Propositions”
The breach of duty must have caused or
materially contributed to harm; occupational
stress is not enough.
The Irish Position
The Irish High Court Cases:
• McGrath v Trintech - 16 "practical propositions" approved
• Maher v Jabil - 3 questions to be answered:
- Has the employee suffered injury to health, as opposed to
occupational stress?
- If so, is the injury attributable to the workplace?
- If so, is the harm reasonably foreseeable in all the
circumstances?
The Irish Position
The Irish Supreme Court:
Quigley – v – Complex Tooling and Moulding:
Conduct by managers amounted to bullying but Court found
that Mr. Quigley’s depression was caused by dismissal not by
bullying.
The Irish Position
The Irish Supreme Court:
Berber –v- Dunnes Stores: Finnegan J.:
• Stress is merely a mechanism whereby harm may
be caused
• Employer may be made aware of stress by
uncharacteristic frequent or prolonged absence
from work but there must be a good reason to
think that the reason is work
Berber –v- Dunnes Stores
Finnegan J.:
• If an employee is certified fit to work,
employer can take this at face value, unless
there is a good reason to the contrary
• If there has been a breach of duty, the
employee must show that the breach caused
the harm
Employment Equality Acts, 1998 -2008
Prevent discrimination in relation to access to
employment and conditions of employment on any one of
9 grounds, including disability.
Discrimination
• Direct discrimination: a person is treated less
favourably than another person has been or
would be treated in a comparable situation on
any of the 9 grounds.
• Indirect Discrimination: arises where an
apparently neutral provision puts persons who
differ on any of the 9 grounds at a particular
disadvantage.
Disability
Disability is:
•
“the total or partial absence of a person’s bodily or mental functions…,
•
the presence in the body of organisms causing, or likely to cause, chronic disease
or illness,
•
the malfunction, malformation or disfigurement of a part of a person’s body,
•
a condition or malfunction which results in a person learning differently from a
person without the condition or malfunction, or
•
a condition, illness, or disease which affects a person’s thought processes,
perception of reality, emotions, or judgement or which results in disturbed
behaviour,
and shall be taken to include a disability which exists at present, or which previously
existed but no longer exists, or which may exist in the future, or which is imputed to a
person.”
Examples of Disability:
• Schizophrenia
• Diplopia (double vision)
• Anxiety/ depession
• Irritable bowel syndrome
• Alcoholism
• Obesity
• Vertigo
Disability Discrimination
•
Employer is not required to recruit or promote or retain an
individual who is not fully competent and fully capable of
carrying out the duties of the job.
• HOWEVER, an employer must take any appropriate measures
to enable a person with a disability to have access to
employment, to participate/ advance in employment or
undergo training unless the measures would impose a
disproportionate burden on the employer
What are Appropriate Measures?
•
Effective and practical measures
• Adaptation of premises or equipment, patterns of
working time, distribution of tasks or provision of
training
Disproportionate Burden
• Financial or other costs
• The resources of the business
Equality Case Law:
Access to Employment:
• Mr A –v- A Health Sector Employer (2009)
• Anne Harrington V East Coast Area Health
Board (2001)
Equality Caselaw
Reasonable Accommodation:
• An Employer –v- A Worker: a means to a end
and that end is achieved when the person
with a disability us placed in a position where
they can have access to...or participate in
employment.
• A Health & Fitness Club –v- A Worker
Best Practice Tips:•
Pre Employment Medical
• Stress Audits
• Training
• Stress Policy
• Employee Assistance Programme