JANICE WALSHE ASSOCIATE BCM Hanby Wallace

Mental Health and the Law Wednesday 20 th 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 Statement Must 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- Hatton 16 "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 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 Position The 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 Stores Finnegan 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,

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