Abstract
The problem of workers’ mental health has become an important issue in Japan since the 1990s. In this country, from the outset, this problem was discussed alongside other issues relating to physical diseases, particularly cerebral and cardiovascular diseases (stroke, heart disease, etc.), i.e. diseases related to the workers’ lifestyle but also caused by their workload.
The author was at Kyushu University until 2015.
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Notes
- 1.
On the legal front, this idea was partly corrected by the reform of the French Labour Code in 2002, which clearly introduced the concept of mental health. See, in particular art. L. 4121-1 of the French Labour Code. However, in practice, labour law continued to focus on physical health for a long time.
- 2.
The typical example is compensation for commuting accidents, where employers are not usually individually liable.
- 3.
There is still, however, a three-day waiting period, when no daily indemnity is paid by social security. During this period, employers remain under the obligation to compensate their employees directly.
- 4.
In principle, Japanese health insurance imposes a 30% user fee.
- 5.
It is set in the ministerial decree on the application of the Labor Standard Law (the list is common to both the employers’ legal liability and social security).
- 6.
This causal link is assessed differently in civil liability cases. To summarise, it is assessed objectively, on the basis of all the available evidence, including facts that are only found at a later date, without taking the subjective intentions or views of the parties concerned into account.
- 7.
Concerning civil wrong, see the “Dentsu Case”, ruling handed down on 24 March 2000 by the Supreme Court, Minsyu vol. 54 n°. 3, p. 1155 [Dentsu ruling]. On this case law, see also: Lerouge L., Risques psychosociaux et système japonais de prévention des risques au travail, Report on research residency at the Global Centre of Excellence (GCOE) and the Institute of Social Sciences, University of Tokyo, ANR-JCCOMPARISK project, 2012, pp. 25–27.
- 8.
The amount awarded in each system may be modified to avoid double compensation.
- 9.
Jobin P., “La mort par surtravail et le toyotisme”, Les mondes du travail, n° 6, 2008, p. 8.
- 10.
Among others, 17 July 2000, Supreme Court, Shomu Geppou, vol. 47, number 10, p. 3044.
- 11.
The standard has been modified several times. The modification in 2000, based on the case law cited in the preceding footnote, prolonged the period to be considered in assessing an excessive workload from one week to 6 months. Following this reform, the standard took long-term accumulated fatigue into account.
- 12.
The standard specifies many other criteria. Thus, the workload may be considered excessive even when overtime represents less than 100 h or 80 h. Various factors other than working hours, including irregular working patterns, the amount of travel, night work, etc. can be taken into account.
- 13.
See: note 10 supra.
- 14.
There is a legal limit on working time (art. 32 of the law on working standards), but it may be prolonged to a practically unlimited extent by obtaining the agreement of the employee representatives and submitting a form to the labour inspectorate (Art. 36). This total absence of absolute limit of working time is a big peculiarity of Japanese working time regulation, which should also be the most important cause of the long working hours in Japan (Japan actually does not ratify any of the basic and fundamental ILO conventions concerning working hours—C001, C047). This situation will probably change in late 2017, as the Government actually aims to fix an absolute limit, for the first time in the history of working time regulation in Japan. A case of young female worker’s suicide and an enourmous media coverage about this case would be the background of this probable change. Although this shift can indeed be considered as a historical one, the contents of the planned reform is already criticized to be too moderate, as it allows, for example, under certain conditions, the overtime up to 100 h per month.
- 15.
Both in the case of cerebral and cardiovascular diseases and psychological illness, there were nuanced discussions on the possibility of compensation, mainly due to the fact that it is funded only by employers. M., “Rosaihokenseisaku no kadai” (Stakes of the policy on compensation insurance for work-related accidents and occupational diseases), Kouza 21 seiki no roudouhou, vol. 7, Yuhikaku, 2000, p. 38 and foll.
- 16.
It may be also be tempting to discuss the cultural reasons for this choice. In relation to France, is the separation between mental and physical health less popular than in Japan? This type of discussion goes beyond the context of this article.
- 17.
The same trend may be observed in the field of civil liability. See again the Dentsu ruling, cited in note 7.
- 18.
This standard has been modified several times, most recently in 2013.
- 19.
In the case of repeated events, typically a series of actions that may be qualified as harassment, all the acts since the initial incident are taken into account, even if it occurred over 6 months previously.
- 20.
The Japanese list of occupational diseases (like the French one) specifies the risk associated with certain types of work and assumes a causal link. Detecting an objective risk of work rather than directly analysing the causal link is, therefore, a traditional interpretation technique.
- 21.
On actual examples of exceptional cases, V. Nishimura K., Syakaihosyouhou (Social Security Law), Yuhikaku, 2003, p. 360.
- 22.
Changes in the Japanese industrial structure constitute one of the major factors, as in other developed countries. To be more specific, the expansion of services and the contraction of manufacturing industries have made the classic health and safety risks less prevalent compared to others, such as stress or overwork. Iwamura, op. cit., p. 37 foll.
- 23.
According to the WHO website, “Work-related diseases” have multiple causes, where factors in the work environment may play a role, together with other risk factors, in the development of such diseases. Ishida M., “Sagyou kanren shippei” (Work-related diseases), Kouza 21 seiki no roudouhou, vol. 7, Yuhikaku, 2000, p. 88 foll. Other types of diseases also share these common features to a greater or lesser extent and may be called “work related diseases” in this sense: respiratory disorders, liver diseases, etc., as well as musculoskeletal disorders, which are a major concern in France see: note 32 infra.
- 24.
This highlights the problem of choosing the type of employee to use as a reference (“the average employee”, “the most fragile employee”, “the employee concerned”, etc.).
- 25.
The act of suicide in the workplace is covered by the presumption of liability (Art. L. 411-1 of the Social Security Code). Lerouge L., “Suicide du salarié et faute inexcusable de l’employeur: quelles évolutions juridiques?”, RDSS, 2/2012, p. 373 foll.; Adam P, Bilheran A., La prévention des risques psychosociaux au travail, Armand Colin, 2011, p. 133 foll. In the case of psychological illness, it must be directly related to the usual working conditions. Guide pour les comités régionaux de reconnaissance des maladies professionnelles, INRS, Documents pour les médecins du travail, n 121, 1er trimestre, 2010, p. 7 foll.
- 26.
The standards presented in this article are still valid and are now used to interpret the two new clauses on the list. This reform has not, therefore, changed the way occupational diseases are assessed.
- 27.
Lerouge L., op. cit., p. 51 et 56; Kasagi E., “Roudousya no Seisinteki Kenkou no Hogo – Anzen eisei mondai no syatei no kakudai to jyugyouin daihyou no yakuwari ni kansuru ichi siron”, (Protecting the mental health of employees – Essay on the theoretical broadening of the scope of the issue of worker health and hygiene and the role of institutions representing the personnel), in Araki T. et al., Roudou Hougaku no Tenbou, Yuhikaku, 2013, p. 356.
- 28.
As we explained there is no absolute limit of working time in Japan, even if the situation will probably change in late 2017. The references for excessive workload, typically 100 h overtime per month, also play an important role in prevention. Also, the classification of death by overwork as an occupational disease has obliged employers to comply, at least to some extent, with regulations on working hours.
- 29.
The situation is beginning to change, albeit slowly. The 2014 law (n. 82), modifying the law on health and safety in the workplace, (労働安全衛生法) introduced an obligation for the employer to offer workers a stress check (Art. 66-10 of the revised law), with only the worker informed of the results. On the worker's request which involves his consent for disclosure of the results of stress check the employer must organise an interview with a doctor and—if s/he considers it necessary—implement any measures following the results of this examination. The law cites the following examples of typical measures: change of workplace, change of work, reduction in working hours, or a decrease in night work. One novel aspect of the law is that, for the first time, it expresses an interest in the prevention of psychological illness as such, looking beyond the problem of working hours. At the same time, the provisions are mainly targeted at individuals and prevention on a collective level is still very underdeveloped, by comparison with France.
- 30.
Adam P., “La prise en compte des risques psychosociaux par le droit du travail français”, Le Droit Ouvrier, June 2008, p. 324 foll. See also: Lerouge L., “Risques psychosociaux au travail: quel rôle du CHSCT aujourd’hui?”, Semaine Sociale Lamy, Supplement n° 1532, 30 avril 2012, p. 49 foll. Kasagi E., op. cit., p. 355 foll.
- 31.
See Jobin P., “Yotsu kara Karôshi made”, Ohara syakai mondai kenkyu zassi, n° 610, 2009, p. 20 foll. In this article, the author emphasises that this type of disease is the second cause of death for the French (between the ages of 24 and 65), as it is for the Japanese (of all ages).
- 32.
In France, musculoskeletal disorder is one of the most widespread physical diseases. See also note 21 supra. On the major differences in the types of diseases between France and Japan, see: Jobin P., op. cit., p. 20 foll.
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Kasagi, E. (2017). Recognition of Mental Illness as an Occupational Disease by Analogy with Physical Illness: Comparative Analyses with French Law. In: Lerouge, L. (eds) Psychosocial Risks in Labour and Social Security Law. Aligning Perspectives on Health, Safety and Well-Being. Springer, Cham. https://doi.org/10.1007/978-3-319-63065-6_19
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