I wrote an article some time ago about bullying that occurs at work and what can be done about this. I also mentioned that there was no specific legislation that outlawed bullying itself in the work place, hence why we needed to incorporate an equality act that encompassed this on a statutory footing. I will now discuss what can be done to alleviate stress at work.
We have all known someone be it a family member, friend or work colleague who has complained of being over worked. We all tend to minimise the impact of this as we all believe that this is to be expected in our professional careers, but at what point can you lodge a complaint at the employment tribunal due to stress at work actually impacting on your health? I will consider this issue with reference to case law.
It may be that an employee suffering from stress may be suffering from a disability under the DDA. If so the employee will be owed duties under the act, however, before duties are triggered under the act the employee must be suffering from a relevant disability. The Disability Discrimination Act 1995 s.1 provides "a mental impairment which has a substantial and long term effect on his normal day to day activities". What is important to realise is that even if the illness is controlled by medication duties may still arise under the act. Even if the employee has suffered the condition but made a recovery, if it is likely to recur he may still be disabled and duties arise under the act.
The obligation that has to then be considered is the duty to make reasonable adjustments to accommodate the employee: - the duties arise where:-
i) a provision, criterion or practice applied by the employer or
ii) any physical feature of the employer's premises places the employee at a substantial disadvantage compared to employees who are non disabled
What is important when the duty arises is that the employer has a statutory obligation to prevent those matters complained of having an effect on the employee's condition.
It is assumed in terms of knowledge of the disability particular stress that the employers expect their employees to be able to handle the usual stress at work.
An example of reasonable adjustments is the requirement to transfer the employee to a wholly different job in the organisation. The case of Greenhof v Barnsley MBC (2006) stated that an employee should have been retained in his present post but relieved of some of his duties if they were too much for him to cope with.
There has to be an element of forseeability that the employer should have foreseen that the employee would be disadvantage by the stressful working conditions.
What is important to realise is that compensation is automatically awarded if the employer refuses to make reasonable adjustments.
Can have a separate claim for unfair dismissal under the DDA 1995 if dismissal could have been avoided by the employer making reasonable adjustments.
The case of Rowden v Gregory (2002) stated that any pending disciplinary hearings against a employee who is off sick due to stress should be postponed until such time as is reasonable to enable the employee to recover and to obtain medical evidence to ascertain when the employee will be fit to attend. It is amazing how many small businesses I have advised are surprised to hear my advice to delay any pending disciplinary hearings to take into account the fact that the employee is now sick.
In summary if you are feeling the pressures at work to the extent that it is having an impact on your health, inform your employers as soon as possible. Employers will then be under a statutory duty to make reasonable adjustments to reduce your stress levels otherwise risk huge pay outs at the tribunal.
Meera Yagnik
Barrister
Temple Court Chambers
m.yagnik@templecourt.co.uk
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