JANICE WALSHE

ASSOCIATEBCM Hanby Wallace

Mental Health and the LawWednesday 20th January 2010

Mental Health in the Workplace:

• 13,000 adults suffer from stress, anxiety

and depression

• 9 days sick leave per year per employee

• Stress now most commonly cited reason

for sick leave

What is Stress?

Stress is a reaction, not an illness

“An adverse reaction people experience

when excessive pressures or types of

demands are placed on them”

Legal Framework for Dealing with Workplace Stress:-

• Health and Safety Legislation

• Common Law/ Contract of Employment

• Employment Equality Legislation

The Safety, Health and Welfare at Work Act, 2005

• Section 8: General duty on employers to do everything he or

she cam, as fair as is reasonably practicable, to ensure the

safety, health and welfare of his or her employees.

• Section 8(2)(b): Imposes an obligation to outline in HR

policies behaviour which will not be acceptable, and to

outline what action will be taken where employee behaviour

poses a threat to health and safety of other employees.

Hazard Identification and Risk Assessment

Employer must:

• Identify all hazards in the workplace

• Keep a written risk assessment of the risks associated with

each hazard

• Keep a written Safety Statement

Safety StatementMust State:

• The hazards identified and risks assessed

• The protective and preventive measures taken and

the resources provided

• The emergency plans and procedures

• The duties of the employees

• The names, job titles and positions of anyone

assigned with safety responsibilities

Common Law Duties

Employers owe employees a duty under the common law to

take reasonable care for the health and safety of employees in

the workplace.

Negligence

• If an employer is in breach of its duty of care to its employee,

and

• it is reasonably foreseeable that that an injury would result from

the breach and,

• a loss or personal injury to the employees has resulted, the

employee will succeed in a negligence claim.

The UK Position:

Walker v Northumberland County Council (1995):

The second nervous breakdown suffered by the employee was

reasonably foreseeable because, at that point, the employer was

on notice of his vulnerability.

Walker-v- Northumberland County Council

• The UK High Court: the duty of care must be measured

against the yardstick of reasonable conduct on the part of the

employer. Reasonableness depends on:-

• the nature of the relationship

• the magnititude of the risk of injury that is reasonably foreseeable,

• the seriousness of the consequences

• cost and practicality of preventing the risk.

The UK Position:Sutherland v Hatton (2002):

UK Court of Appeal: Stress claim no different to any other negligence

based personal injuries claim, i.e. there must be: 

– A duty of care

– Breach of the standard of care

– A causal link between the breach and the harm

– Damage resulting from the breach

Sutherland –v- Hatton16 "practical propositions" for dealing with

stress claims.

Sutherland –v- Hatton“Stress Propositions”

• a) Has there been injury to health as distinct from occupational

stress?

• b) If answer to (a) is yes, is it attributable to stress at work, as

distinct from other factors?

Sutherland –v- Hatton“Stress Propositions”

• Foreseeability depends on what the employer knows or ought to

know about the individual employee. The employer is entitled

to assume that an employee can withstand noral pressures

unless he is on notice of vulnerability.

• No occupation more intrinsically dangerous than any other

occupation

Hatton v Sutherland“Stress Propositions”

Employer only in breach of his duty if he fails to take such steps

as would be reasonable in the circumstances.

Sutherland –v- Hatton“Stress Propositions”

Employer who has a confidential advice service, with

referral to appropriate counselling/ treatment services,

unlikely to be in breach of duty.

Sutherland –v- Hatton“Stress Propositions”

The breach of duty must have caused or

materially contributed to harm; occupational

stress is not enough.

The Irish High Court Cases:

• McGrath v Trintech - 16 "practical propositions" approved

• Maher v Jabil - 3 questions to be answered:

- Has the employee suffered injury to health, as opposed to

occupational stress?

- If so, is the injury attributable to the workplace?

- If so, is the harm reasonably foreseeable in all the

circumstances?

The Irish Position

The Irish Position

The Irish Supreme Court:

Quigley – v – Complex Tooling and Moulding:

Conduct by managers amounted to bullying but Court found

that Mr. Quigley’s depression was caused by dismissal not by

bullying.

The Irish PositionThe Irish Supreme Court:

Berber –v- Dunnes Stores: Finnegan J.:

• Stress is merely a mechanism whereby harm may

be caused

• Employer may be made aware of stress by

uncharacteristic frequent or prolonged absence

from work but there must be a good reason to

think that the reason is work

Berber –v- Dunnes StoresFinnegan J.:

• If an employee is certified fit to work,

employer can take this at face value, unless

there is a good reason to the contrary

• If there has been a breach of duty, the

employee must show that the breach caused

the harm

Prevent discrimination in relation to access to

employment and conditions of employment on any one of

9 grounds, including disability.

Employment Equality Acts, 1998 -2008

Discrimination

• Direct discrimination: a person is treated

less favourably than another person has

been or would be treated in a comparable

situation on any of the 9 grounds.

• Indirect Discrimination: arises where an

apparently neutral provision puts persons

who differ on any of the 9 grounds at a

particular disadvantage.

Disability is:

• “the total or partial absence of a person’s bodily or mental functions…,

• the presence in the body of organisms causing, or likely to cause, chronic disease or

illness,

• the malfunction, malformation or disfigurement of a part of a person’s body,

• a condition or malfunction which results in a person learning differently from a person

without the condition or malfunction, or

• a condition, illness, or disease which affects a person’s thought processes, perception of

reality, emotions, or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously

existed but no longer exists, or which may exist in the future, or which is imputed to a

person.”

Disability

Examples of Disability:• Schizophrenia

• Diplopia (double vision)

• Anxiety/ depession

• Irritable bowel syndrome

• Alcoholism

• Obesity

• Vertigo

Disability Discrimination• Employer is not required to recruit or promote or retain an

individual who is not fully competent and fully capable of

carrying out the duties of the job.

• HOWEVER, an employer must take any appropriate measures

to enable a person with a disability to have access to

employment, to participate/ advance in employment or

undergo training unless the measures would impose a

disproportionate burden on the employer

What are Appropriate Measures? • Effective and practical measures

• Adaptation of premises or equipment, patterns of

working time, distribution of tasks or provision of

training

Disproportionate Burden

• Financial or other costs

• The resources of the business

Equality Case Law:Access to Employment:

• Mr A –v- A Health Sector Employer (2009)

• Anne Harrington V East Coast Area Health

Board (2001)

Equality Caselaw

Reasonable Accommodation:

• An Employer –v- A Worker: a means to a end

and that end is achieved when the person

with a disability us placed in a position where

they can have access to...or participate in

employment.

• A Health & Fitness Club –v- A Worker

Best Practice Tips:- • Pre Employment Medical

• Stress Audits

• Training

• Stress Policy

• Employee Assistance Programme