Abstract
It is now well established that stress, anxiety and depression are—and have for some time been—the single largest contributors to the overall number of days lost each year due to work-related ill-health and injury in the United Kingdom. Whilst this obviously leads to a range of economic costs, management and human resources problems for employing organisations, it also raises critical and complex issues about employers’ legal responsibilities for employees’ psychiatric and/or psychological, as well as their physical, well-being at work.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
According to the UK Health and Safety Executive’s (HSE) Health and Safety Statistics 2016 (available at www.hse.gov.uk/statistics/index.htm), in 2015/16 11.7 million working days were lost to such illnesses and conditions alone (out of a total of 25.9 million days lost to all work related illness). Indeed, the highest figure during the last decade or so occurred in 2007/8 when 13.5 million days were lost due to stress, anxiety and depression out of a total of 34 million days lost to all workplace ill-health and injury.
- 2.
Ibid. It is estimated that all workplace injuries and ill health (excluding long latency illness such as cancer) cost the UK economy £14.1 billion (approximately E16 billion) in 2014/15.
- 3.
Ibid. It is estimated that in 2015/16 the average length of absence in such cases was 23.9 days, compared to only 16 days for all work related ill health and injury. The highest average length of absence for anxiety, stress and depression in the last decade or so was 30.9 days in 2004/5.
- 4.
On the latter see, for example, Johnstone v Bloomsbury Health Authority [1991] IRLR 118. Here, the Court of Appeal held that the implied term could in principle be used to challenge the employer’s exercise of an express contractual discretion to require a junior hospital doctor to work an average of up to 48 h a week ‘on call’ on top of his basic 40-h week. It was also arguable that any absolute requirement to work 88 h a week would be void under s.2(1) of the Unfair Contract Terms Act 1977, which provides that ‘a person cannot by reference to any contract term … exclude or restrict his liability for … personal injury resulting from negligence’.
- 5.
Page v Smith [1995] 2 All England Law Reports 736. Indeed, Lord Browne-Wilkinson warned in this case (at p. 754) that: ‘For the courts to impose different criteria for liability depending upon whether the injury is “physical” or “psychiatric” is likely to lead to a growing complication in straightforward personal injury cases.’ Indeed, in Corr (Administratix of the Estate of Thomas Corr Deceased(Deceased) v IBC Vehicles Ltd [2006] UKHL 13, the House of Lords found the employer liable for Mr. Corr’s calamitous psychiatric deterioration [including post-traumatic stress disorder and serious depression] and ultimate suicide, caused by the employer’s breach of duty in respect of reasonably foreseeable physical injury.
- 6.
For example, in Rorrison v West Lothian College and Lothian Regional Council, 21 July, 1999, the Court of Session (Outer House) in Scotland referred to the American Diagnostic and Statistical Manual of Mental Disorders and the World Health Organisation’s International Classification of Diseases and Related Health Problems as representing ‘the two main diagnostic classificatory systems used by the psychiatric profession’.
- 7.
[1995] IRLR 35.
- 8.
Sutherland (Chairman of Governors of St Thomas Beckett RC High School v Hatton (and three joined cases—respectively Barber, Jones and Bishop) [2002] IRLR 263.
- 9.
In so doing, it distilled the 16 “practical propositions” summarised in the following box “The Court of Appeal’s “practical propositions” in Hatton”.
- 10.
Mr. Barber alone appealed to the House of Lords and we return to consider that decision at p. 11 below. We address the fourth case—that of Ms. Jones—in which the Court of Appeal actually upheld the lower Court’s ruling in her favour at p. 10.
- 11.
Summary from headnote at [2002] IRLR, p. 265.
- 12.
[2003] EWHC 50.
- 13.
[2003] IRLR 794.
- 14.
[2004] IRLR 164.
- 15.
Per Lord Justice Tuckey in Croft v Broadstairs & St Peters Town Council [2003] EWCA Civ 676 at para.76.
- 16.
Op. cit.
- 17.
[2002] IRLR, p.286. It is clear that excessive overwork or workload more generally may lead to employer liability—see, for example, footnote 4 above. And, in Hone v Six Continents Retail Ltd [2006] IRLR, the Court of Appeal upheld the County Court’s decision that the employer was liable to the manager of a public house for psychiatric damage caused as a result of him regularly working in excess of 90 h a week and receiving no support or assistance despite raising the issue with management. Interestingly, it was said to be a relevant factor that Mr. Hone had expressly refused to sign an opt-out from the average 48-h week working week provisions of the UK Working Time Regulations 1998 (SI 1998/1833—‘WTR’). But this will be a matter of fact and degree and, in Sayers v Cambridgeshire County Council [2007] IRLR 29, the High Court found that the employer was not liable for psychiatric damage an ‘operations manager’ who regularly worked between 50 and 60 h a week with no WTR opt out: ‘At no stage were the employers made aware that the claimant had a history of depressive symptoms which made her vulnerable to a recurrence of depressive episode or that, during the course of her employment, she had been treated for depressive symptoms. There was nothing unusual in her absences from work and the claimant had deliberately avoided any references being made in her medical certificates to illnesses being caused by depression or symptoms of psychiatric illness.’ (from editor’s headnote at p. 30 of case report).
- 18.
[2002] IRLR 660.
- 19.
Barber v Somerset County Council [2004] IRLR 475.
- 20.
[1968] 1 WLR 1776.
- 21.
[2004] IRLR 418.
- 22.
Per Davis J in Easton v B & Q plc [2015] All ER (D) 40 at para.50.
- 23.
Per Hickinbottom J in MacLennan v Hartford Europe Ltd [2012] EWHC 346 at para. 22.
- 24.
… (and five joined cases) [2005] IRLR 293.
- 25.
See again box “The Court of Appeal’s “practical propositions” in Hatton” above.
- 26.
[2005] IRLR, p. 300.
- 27.
See again box “The Court of Appeal’s “practical propositions” in Hatton” above.
- 28.
[2015] IRLR 112.
- 29.
See again box “The Court of Appeal’s “practical propositions” in Hatton” above.
- 30.
See p. 10 and Footnote 14 above.
- 31.
See Footnote 27 above at paras. 125 and 127.
- 32.
[2007] IRLR 355.
- 33.
See again box See again box “The Court of Appeal’s “practical propositions” in Hatton” above.
- 34.
Ibid.—per Lord Justice Pill at p. 360.
- 35.
Ibid. at p. 359.
- 36.
[2009] IRLR 58.
- 37.
Ibid. at p. 64.
- 38.
[2010] IRLR 132.
- 39.
Ibid.—per Lord Justice Kay at p. 135.
- 40.
Such cases are pursued through the Employment Tribunal system and, unusually, potential compensation is uncapped. This can include compensation both for recognised psychiatric injury and ‘injury to feelings’ short of such damage –on the latter see, in particular, Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 and Da’Bell v NSPCC [2010] IRLR 19.
- 41.
See especially Section 2, which imposes a duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work their employees. The application of this and other duties in the Act to employees’ mental health is underlined by the definition of a “personal injury”, which expressly includes “any disease and any impairment of a person’s physical or mental condition” (Section 53). These duties are enforceable by the UK Health and Safety Executive (HSE) and related regulatory agencies, ultimately by way of criminal prosecution.
- 42.
Regulation 3 crucially requires employers to make a “suitable and sufficient” assessment of the “the risks to the health and safety of [their] employees to which they are exposed whilst they are at work”. This clearly includes risks to psychiatric and psychological well being and, indeed, there have been a handful of rare cases over the last 10–15 years where the enforcing authorities have initiated the first stage of the enforcement process by issuing employers with ‘improvement notices’ requiring them to undertake, for example, “suitable and sufficient risk assessment of the risks to the health and safety of its employees for exposure to work-related stressors” (including in one case shift fatigue for staff working on an airport check-in desk—see Notice 100004923 served against Coventry Airport Handling, 26.01.05). In reality, however, as far back as the year 2000 the policy making and enforcing authorities concluded that ‘uncertainties about the means of enforcement’ largely ruled out a more explicitly regulatory approach in this area (see Mackay, C.J, Cousins, R, Kelly, P.J, Lee, S. and McCaig R..H, 2004, ‘“Management Standards” and work-related stress in the UK: policy background and science’, Work & Stress, 18/2, 91 at p. 92). They have consequently largely opted for a voluntary ‘management standards’ approach to stress at work—details and guidance on this can be found at: www.hse.gov.uk/stress/standards/index.htm.
- 43.
[1997] IRLR 462.
- 44.
Ibid. at p. 464.
- 45.
On the general background, history and development of the implied term see, inter alia, Lindsay J, 2001, ‘The Implied Term of Trust and Confidence’, 30 Industrial Law Journal, pp. 1–16; Brodie, D, 2001, ‘Mutual Trust and the Values of the Employment Contract’, 30 Industrial Law Journal, pp. 84–100; Cabrelli, D, 2005, ‘The implied duty of mutual trust and confidence: An emerging overarching principle’, 34 Industrial Law Journal, pp. 284–307; Barmes, L, 2007, ‘Common Law Implied Terms and Behavioural Standards’, 36 Industrial Law Journal, pp. 35–50; and Brodie, D, 2008, ‘Mutual Trust and Confidence: catalysts, constraints and commonality’, 37 Industrial Law Journal, pp. 329–346.
- 46.
This concept deems an employee to have been dismissed by the employer, for the purpose of bringing an unfair dismissal claim in an Employment Tribunal, where they appear to resign but do so in response to (and acceptance of) a repudiatory or fundamental breach of the contract of employment by the employer that would entitle them at common law to terminate the contract without notice—see s.95(1)(c) of the Employment Rights Act 1996, as explained in Western Excavation (ECC) Ltd v Sharp [1978] IRLR 27.
- 47.
See, for example, Isle of Wight Tourist Board v Coombes [1976] IRLR 413; Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84; Lewis v Motorworld Garages Ltd [1985] IRLR 465. And, in Morrow v Safeway Stores plc [2002] IRLR 9, the EAT confirmed that a breach of the implied duty of trust and confidence will if established always amount to a repudiatory breach of contract permitting the innocent party to terminate the contract summarily and without notice.
- 48.
[2000] IRLR 703.
- 49.
Ibid. at p. 710.
- 50.
Ms. Gogay was ultimately awarded almost £39,500 for her loss of earnings and psychiatric injury.
- 51.
[1999] IRLR 90.
- 52.
[2001] IRLR 279.
- 53.
Indeed, in Dunnachie v Kingston upon Hull City Council [2004] IRLR 727, the House of Lords said that the comments to this effect in Johnson were clearly obiter dicta and reasserted the long-standing orthodoxy that compensation for unfair dismissal cannot be recovered in respect of any non-economic loss resulting from dismissal. This prohibition clearly also applies to statutory unfair ‘constructive’ dismissal claims and precludes recovery of compensation for loss of future earnings in respect of any prior or antecedent breaches of trust and confidence—see GAB Robins (UK) Ltd v Triggs [2008] IRLR 317.
- 54.
[2004] IRLR 733.
- 55.
Ibid. at p. 736.
- 56.
Ibid. at p. 738.
- 57.
Ibid. at p. 738.
- 58.
Compensation for unfair dismissal comprises a basic award based on age and length of service (currently a maximum of £14,250 if employed for 20 years after age 41) and a compensatory award currently capped at £78,335 or one year’s actual pay of the employee concerned, whichever is the lesser.
- 59.
See Edwards v Chesterfied Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence [2012] IRLR 129, where the Supreme Court ruled that claims for financial loss caused by damage to reputation ‘did not arise from anything that was said or done before the dismissal’. They were not independent of the dismissal, but arose from what was said by the employer as an intrinsic part of the dismissal process.
- 60.
[2013] IRLR 732.
- 61.
Ibid—even then Lord Justice Underhill accepted that on the hypothesis that the conduct of which Ms. Monk complained as giving rise to a cause of action in negligence—broadly, [the Chair’s] conduct in marching her off the premises—would be the same as that which constituted the dismissal, it was nevertheless ‘very arguable that it remained “independent” of the dismissal in the sense in which that term is used in Eastwood and in Edwards: despite the factual overlap she would not be bringing a claim that she had been dismissed unfairly.’ But, he said, he need not express a concluded view on this issue (see para. 32 of judgment).
- 62.
Op. cit.
- 63.
See Footnote 37 above.
- 64.
[2006] IRLR 695.
- 65.
The concept of ‘vicarious liability’ in UK law imposes liability indirectly on employers for acts or omissions by their employees carried out in the course of—or closely connected to—their employment. On the modern development of, in particular, the ‘close connection’ test see, inter alia: Fennelly v Connex South Eastern Ltd [2001] IRLR 390; Lister and others v Hesley Hall Ltd [2001] IRLR 472; Mattis v Pollock (t/a Flamingo’s Nightclub) [2003] IRLR 603; Gravil v Redruth Rugby Football Club Ltd and another [2008] IRLR 829; and Wedall v Barchester Health Care Ltd; Wallbank v Wallbank Fox Designs Ltd [2012] IRLR 307. One problem with the ‘close connection’ test noted in Weddall, however, is that the more outrageous and/or extreme the perpetrator’s actions the less likely it is that the employer will be found to be vicariously liable. For more on this point see: Walden, R.M, ‘Vicarious Liability for Intentional and Wrongful Acts by Employees: The Case of Vaickuviene—highlighting lacunae in the ‘close connection’ test’, [2014] Business Law Review, 35/6, pp. 207–210.
- 66.
In Majrowski itself, Lord Nicholls elaborated on the nature of the actions for which an employer might be held vicariously liable under these provisions, saying that where ‘… the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under s.2’—see [2006] IRLR 695 at p. 699 and also comments to similar effect made by the Court of Appeal in Sunderland City Council v Conn [2008] IRLR 324.
- 67.
See Footnote 37 above.
- 68.
Summary from editor’s headnote to IRLR case report at p. 132.
- 69.
[2011] IRLR 669.
- 70.
[2006] IRLR 764.
- 71.
See again Footnotes 40 and 41 above.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Walden, R.M. (2017). Employer Responsibility for the Psychosocial and Psychiatric Well-Being of Employees in the Workplace: A View from the United Kingdom. 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_6
Download citation
DOI: https://doi.org/10.1007/978-3-319-63065-6_6
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-63063-2
Online ISBN: 978-3-319-63065-6
eBook Packages: Behavioral Science and PsychologyBehavioral Science and Psychology (R0)