Stress in the Workplace and Disability

Discrimination

By: Adam Willoughby

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Stress in the Workplace

and Disability

Discrimination By Adam Willoughby, Barrister

Broadway House Chambers, Leeds & Bradford

Broadway House Chambers Leeds and Bradford

Doing things differently for 80 years

Broadway House Chambers "employment barristers are uniformly

excellent" Legal 500, 2013

Appearances in key cases

o Chief Constable of West Yorkshire Police v Vento (2003, Court of Appeal)

o Chief Constable of West Yorkshire Police v Khan (2001, House of Lords)

o Hershaw & ors v Sheffield City Council (2014, EAT)

o Bainbridge v Redcar & Cleveland Borough Council (2008, Court of Appeal)

o Homer v Chief Constable of West Yorkshire Police (2012, Supreme Court)

o G4S Secure Solutions v Jones (2014, EAT)

www.broadwayhouse.co.uk

Topics to Consider

Identifying “Stress in the Workplace”

Warning Signs: How stress may arise

Effects of Stress on Employer

What are the duties of an employer?

What claims could stress in the workplace give rise to?

When Stress = Disability

Discrimination (Reasonable Adjustments in more detail)

Unfair Dismissal

Practical solutions & HR Support

Identifying Stress in the

Workplace

Health and Safety Executive:

“the adverse reaction people have to excessive pressures

or other types of demand placed on them”

ACAS Guidance identifies a…

Difference between pressure creating a ‘buzz’ which is

often a motivating factor and the negative experience

which can occur when this pressure becomes excessive

and the individual is unable to cope

Stress is not an illness - the psychological impact of stress

can contribute to problems with ill health. As well as

anxiety and depression, stress has been associated with

physical problems such as heart disease, back pain and

gastrointestinal illnesses

How Stress may arise…

Employee’s personal lives (difficult for employers to be

aware of these factors)

Work-related pressures - reasonable assumption

employer on notice of issues

Combination

Why do we need to worry?

HSE estimates that work-related stress costs society

between £3.7 billion and £3.8 billion a year (1995/96

prices)

Latest figures estimate 13.5 million working days were

lost to stress, depression and anxiety in 2007/8

Best interests of the company: deal with stress issues

from an economic perspective

Stress is now the most common reason for employee

absence, costing UK employers an estimated £1.24

billion per year

Why do we need to worry?

Modern day working lives: more for less culture

Longer hours, increased pressure, rising awareness of

‘stress issues’ and lessening mental health stigma

Legal implications…

Employer’s Duties

Management of Health and Safety at Work Regulations

1999

Must carry out a workplace risk assessment to identify

any potential risks.

The Health and Safety at Work Act 1974

Duty to ensure that, as far as is reasonably practicable,

their workplaces are safe and healthy. Also under a duty

to take measures to control any risks that they identify.

Workplace Harassment

Protection from Harassment Act 1997

(usually very difficult for an employee to succeed against his or her employer under the PHA 1997, but important to be aware of)

To fall within it, the conduct complained about must:

Have occurred on more than one occasion.

Be targeted at the claimant and be intended to cause distress.

Be serious enough to amount to a criminal act.

Not simply amount to a disagreement between two work colleagues.

Have a close connection between the conduct and the job of work.

Not be considered to be a reasonable and proper criticism of poor performance

Common Law Duty

Duty of care is owed by employer to employee

Employee must prove breach

Forseeability: what did the employer know, or ought to

have known, about the pressures on the individual

employee at the time

Standard of Care: Barber v. Somerset County Council

Disability

Work-related stress issues are likely to manifest themselves as mental illnesses – usually depression

The Equality Act 2010 – legal tests for a qualifying disability.

1. There must be a physical or mental impairment.

2. Impairment must have substantial adverse effects.

3. Those substantial effects must be long term.

4. The long-term substantial effects must have an adverse effect on normal day-to-day activities.

Early Consideration of Condition…

How is the stress manifesting itself?

Severity?

Ability to function?

Changing role

Reducing load

Additional support

Talking – managerial support

Confidentiality

OCCUPATIONAL REFERRAL IS A MUST

CONSIDER PSYCHOLOGICAL ASSESSMENT

IF DISABLED (Act on the side of

caution)

it is unlawful for the employer to engage in the

following:

direct discrimination;

discrimination arising from disability;

indirect discrimination;

failing to make reasonable adjustments; and

harassment and victimisation.

KEY WARNING: An employer can discriminate against an

employee even if it is unaware of the disability

Reasonable Adjustments

Frequently arises in “stress in the workplace”

type cases

What is the duty?

Section 20 of the EqA 2010 provides that the duty

to make reasonable adjustments comprises of

three requirements, set out in s 20(3), (4) and (5)

' ' (3) The first requirement is a requirement, where a provision,

criterion or practice of A's puts a disabled person at a substantial

disadvantage in relation to a relevant matter in comparison with

persons who are not disabled, to take such steps as it is

reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical

feature puts a disabled person at a substantial disadvantage in

relation to a relevant matter in comparison with persons who are

not disabled, to take such steps as it is reasonable to have to take

to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled

person would, but for the provision of an auxiliary aid, be put at a

substantial disadvantage in relation to a relevant matter in

comparison with persons who are not disabled, to take such steps

as it is reasonable to have to take to provide the auxiliary aid. ' '

Section 21(1) provides that a failure to comply with the first,

second or third requirement is a failure to comply with the duty

to make reasonable adjustments.

Reasonableness The duty to make adjustments is, as a matter of policy, to enable

employees to remain in employment, or to have access to employment

(Harvey on Industrial Relations and Employment Law)

Knowledge – (Schedule 8 of EqA 2010)

(1) A is not subject to a duty to make reasonable adjustments if A does not

know, and could not reasonably be expected to know—

(a) in the case of an applicant or potential applicant, that an

interested disabled person is or may be an applicant for the

work in question;

(b) [in any case referred to in Part 2 of this Schedule], that an

interested disabled person has a disability and is likely to be

placed at the disadvantage referred to in the first, second

or third requirement.

Unfair Dismissal

No automatic unfair dismissal if by reason of disability

BUT likely to be unfair

Constructive Dismissal

Capability Dismissal

Conduct and excessive absenteeism

HR Support

Paper trail

Early Advice

Training of line manager’s and general management,

particularly if conducting disciplinary/capability etc.

processes

Policy – Stress At Work

Adam Willoughby

Barrister

Broadway House Chambers

1 City Square

Leeds LS1 2ES

Tel: (0113) 246 2600 Email: awilloughby@broadwayhouse.co.uk

Twitter: @ACWilloughby

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