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Doing your duty towards the vulnerable employee

first_imgRelated posts:No related photos. Comments are closed. Previous Article Next Article Michael Leftley looks at some typical stress-related scenarios to illustratethe problems that can occur and the steps responsible employers should take toavoid embarrassing and expensive payoutsScenario 1Alan is employed in the post room at a large export business. He isinexperienced in the job and is given inadequate training. As a result he makesmistakes and is bullied by his manager and other colleagues. Alan’s complaintsto senior managers fall on deaf ears and he soon begins to suffer from panicattacks, mood swings and low self-esteem. He has a history of medical illness,and makes an appointment to see his doctor, who diagnoses stress. Michael Leftley comments:  Stress can loosely be defined as an adverse reaction to excesspressure. However, the fact that an employee suffers from stress does notnecessarily mean they can bring a claim against their employer. To bring aclaim the employee must show that the stress is a consequence of the employer’sunlawful conduct towards them. In this scenario the two obvious potentialclaims are personal injury and unfair dismissal. The personal injury claim can be difficult to prove. It is not enough forAlan merely to be showing signs of stress. He must have the backing of medicalevidence which establishes that he suffers from a recognised psychiatricillness. So, for example, if his low self-esteem and mood swings lead to arecognised psychiatric illness such as clinical depression ,then he will haveovercome that obstacle. Alan’s employer owes a duty to take reasonable care for his health andsafety, and Alan will need to show that they have breached that duty. The factthat he has a previous history of mental illness, the fact that he is inexperiencedand that he raised complaints suggest a potential breach, since it appears hisemployers failed to take steps to help him. This is a classic case where theemployer should have taken preventative measures at an early stage. There is also a potential claim for constructive unfair dismissal, shouldAlan decide to resign in response to this obvious lack of support. Bullying,lack of training and lack of management can all give rise to claims for unfairdismissal, and they are often at the root of many stress-related claims.According to an academic survey supported by the TUC and the CBI, bullyingcontributes to the loss of 18 million working days in the UK each year, andemployers need to have procedures in place which not only protect victims butwhich deal properly with those responsible for the bullying. Scenario 2June is one of a team of four who work in the accounts department of a largeengineering firm. She has been off work for several months with ME, and doctorsrecommend that she eases her way back into work. June asks permission to workon a temporary part-time basis from home, but her employers are notparticularly sensitive to her needs. She feels she can’t cope and subsequentlyresigns, bringing a claim of disability discrimination against her employers,who have made no special arrangements to accommodate her requirements. Michael Leftley comments:  Stress at work is a common source of disability discriminationclaims. To qualify, an employee needs to satisfy the definition of disabilityas set out in the Disability Discrimination Act. In the context ofstress-related illness, it amounts to showing a mental impairment which has a”substantial and long-term adverse affect on a person’s ability to carryout day-to-day activities”. In cases like this, where an employee is returning to work followinglong-term sick leave, employers are under a duty to make reasonable adjustmentsto help the recovering employee get back to work. In June’s case, her employershave not made any special provision either by supporting her in the officeenvironment or by allowing her the opportunity to work from home as a means ofrehabilitation; these are matters which they should have considered carefully.June would not need to resign to bring a claim (although whether or not sheresigned would affect the amount of compensation she would receive if she weresuccessful). June might also be able to claim constructive unfair dismissal on the basisof inadequate support from her employer. Unlike for the discrimination claim,however, she would need to resign, and in so doing make it clear that it was inresponse to the lack of support. Scenario 3Bob is employed as a manager of a large DIY store, and often works more than60 hours a week. He complains of being overworked and particularly stressedduring busy periods, and is aggrieved that his contract requires him to workonly 40 hours a week. He has signed an agreement opting out of the 48-hourweek, but As a health and safety measure, the has almost reached breakingpoint, and threatens to resign unless his hours are reduced. Michael Leftley comments:  WorkingTime Regulations 1998 impose limits on the number of hours which employees canbe expected to work, and place a duty on employers to take care of theiremployees’ health. Employers need to be aware that any employees who may have opted out of theWorking Time Regulations are still owed the same duty of care as those who havenot opted out. In this case, unless his employers agreed to reduce his hours,Bob could resign and bring a claim for constructive unfair dismissal on thegrounds that his employers are not taking reasonable steps to care for hishealth and well-being. This lack of care would also give Bob the right to claim for breach ofcontract. There is an implied term in the contract of employment that anemployer will take reasonable care for an employee’s health and provideadequate support. The steps required by individual employers will depend ontheir particular circumstances, but might include: – providing protective clothing and warning of the dangers of not wearingit; – reducing the workload; – taking steps to discipline a bully at work; – keeping up to date with developing knowledge and safety risks; – taking greater care of susceptible employees. In this case it is obviously the failure to reduce the workload which is theemployer’s mistake. n Michael Leftley is a partner in the Employment Department at AddleshawBooth & Co Key pointsRecent changes in legislation, media interest and the attitude of tribunalsand courts has helped employees become more aware of their rights and moreconfident about bringing a claim. Recent payouts reported in the press providea useful guide to the level of compensation paid in stress cases. They alsoserve as an important reminder to employers that they need to be conscious ofthe welfare of any employee who works in a potentially stressful environment,and have appropriate safeguards in place to protect those most likely to be atrisk. Doing your duty towards the vulnerable employeeOn 1 Oct 2000 in Personnel Todaylast_img read more