The European workplace has changed dramatically in recent times, due to globalisation of the economy, use of new information and communications technology, growing diversity in the workplace (e.g. more women, older and higher educated people, as well as increased migration, particularly between the EU Member States), and an increased mental workload.
According to a report that was published in March 2005, while work intensification may be levelling off, stress-related outcomes – such as burnout, fatigue, or back problems – are still on the increase.
The report from the European Working Conditions Observatory (EWCO) says that the health, social services and education sectors are most at risk of work-related stress. As these sectors employ a significant majority of women and are large-scale employers, stress tends to affect a disproportionate number of female workers. Nonetheless, where trend information is present in the northern European countries, the data indicate an increase in stress-related outcomes both for men and women.
In recent years, a number of high profile cases in the financial services sector have also highlighted the impact of stress and the related issue of bullying.
In 2003, a London court awarded nearly £1m in damages, plus costs to a high-paid employee of the US brokerage Cantor Fitzgerald. During one aggressive incident, Lee Amaitis, the president, telephoned the claimant Steve Horkulak who was at home celebrating his daughter's birthday, and "went berserk" about a bonus payment to a colleague and threatened to "fucking break" him in two.
The judge said: "To threaten 'to break someone in two' is to adopt the language of criminal intimidators. It was not a criminal threat to harm the claimant but a clear expression of the level of anger and intolerance he harboured for the claimant."
When Horkulak's mother was dying of cancer in 1998 at the same time as a colleague's wife was suffering from leukaemia, Horkulak said Amaitis's response was: "Jesus Christ, is there some kind of fucking epidemic in this company?"
The judge said that the use of swearwords was "a hallmark of the dictatorial style of Mr Amaitis's management". He said: "I do not accept that its use can be regarded as incidental or meaningless. It is commonly the language of dictatorial leadership and for Mr Amaitis it exemplifies his attitude as an employer. He does not set out to accommodate employees but to dictate to them, to require them to perform and to be available to explain themselves at any moment he requires."
Stress big factor in Employment Claims
Eithne Curran, a worker in Cadbury’s chocolate factory in Dublin, turned on a machine as part of her job. She could not have known then that this simple action at work would change her life.
Ms Curran had not been told that there was a fitter in the machine at the time. Shortly after she turned it on she heard screams as he tried to escape by taking off his clothes. She thought she had killed him.
In court she said she had “gone to bits” and experienced serious shock and emotional distress, including nightmares and sleepless nights for which she was on medication. She won damages of €18,700 for psychological injury suffered at work due to stress.
Stress claims are becoming a fundamental component of employment law in Ireland. But how aware are Irish employers and employees of the policies and laws surrounding stress in the workplace and what is being done to prevent it?
Recently the Gardai spoke out against stress and bullying in the workplace, saying it made some members of staff violently sick at the thought of coming to work. In March, it was teachers who made the headlines with an survey by the secondary school teachers’ trade union ASTI that cited stress as the number one occupational hazard for second level teachers. ASTI said that teachers are at risk because schools are breaching health and safety legislation by doing little to address "glaring gaps" in the way problems are dealt with.
Stress must be reasonably foreseen by employer
Last October, High Court Judge Ms Justice Laffoy ruled that if an employee doesn’t actively complain about the stress suffered because of their job prior to leaving or breaking down they will not be successful in a court action against their employer. This was a major new clarification of Irish employment law which is particularly murky around the issue of stress.
“The law changes very quickly so it is hard for employers and employees to keep up”, explains John Eardley, a barrister specialising in employment law, “But they are not aware of the strict hurdles they have to surmount before they can win money from their employer. It’s hard to explain to employees that there are a number of technical legal hurdles they must overcome, such as ‘vulnerability’. Employees don’t realise that simply suffering stress in itself is not enough”, he says.
The case in question was McGrath versus Trinitech Ltd. The ruling underlined the grounds for a stress claim and the court decided that psychiatric harm suffered by an employee due to stress at work had to be reasonably foreseeable by an employer for a breach of statutory duty to give rise to liability. To be liable at common law for such injury, the employer also had to have fallen below the standards of a “reasonable and prudent employer”.
These rulings are vital for employers and employees in determining what stress is unacceptable in the workplace and how they are positioned legally to overcome it.
Another issue addressed by the Laffoy judgement in the McGrath case was stress as part of “corporate culture”.
“Up until last year, even if stress was a part of your corporate culture, you could not impose stressful conditions on somebody at work”, explains John Eardley, but since the McGrath judgement, stress as part of corporate culture has been acknowledged as an intrinsic part of some occupations. So employers are legally correct in letting their employees work in a stressful environment if it’s part of their corporate culture.
Jacqueline Kelly is a solicitor with one of Ireland’s biggest law firms A & L Goodbody. She says that the McGrath case has clarified the responsibilities of employers. The case highlights the onus on employees to be aware of their own mental health and to take genuine steps to deal with it at an early stage.
“It is clear from this case that the Courts do not accept that employers owe some sort of open ended responsibility to their employees with respect to any mental illness or psychological damage suffered in relation to the work”, says Ms. Kelly.
The Health and Safety Act 2005 will take effect next year and will give enhanced rights to the employee and also increase the obligations on the employer regarding stress.
Patricia Murray, an occupational psychologist with the Health and Safety Authority, says that there is only so much the HSA can do to tackle stress at work as it is an individual problem that is difficult to measure.
“There isn’t any specific legal criteria”, says Ms. Murray. “For instance if you’ve got hearing problems you’ve got the green book, if you’ve got back pain you’ve got a certain standard of disablement in the muscles. Where stress is concerned there isn’t a legal measure”.
Although the HSA is a criminal enforcer of the law, it has limited means of measuring workplace stress and will not prosecute employers who breach the various guidelines for work place stress. These guidelines include having a written statement which outlines the grievance procedure for an employee who feels they are suffering from work related stress.
“How we monitor is very reactive. We don’t have a proactive approach of going out there making sure people are not stressing out their employees. If people make complaints to us then we will get in touch with their employer and say you have a duty to have a policy and to implement the policy” says Ms. Murray. “It is very reactive at the moment, I’m the only psychologist here”.
Patricia Murray emphasises the need for people to think deeply about stress, and for those who believe they are suffering from stress, she advises a period of reflection. She says it is very easy to put stress down to work but it can often be caused by another factor in our lives. If you do think your job is causing you stress, the first step should be to tell your employer.
“Try to define it a little bit and then try to put something in writing to your employer and say I’ve thought about it, I’m not looking to blame anyone necessarily but this is what is happening and this is the effects on me, I want to forewarn you so we can do something about it and move on”, advises Ms. Murray. “Then the employer has an obligation to see what is reasonable”.
At the moment an employee must suffer either a physical or psychological injury to claim damages from their employer. Stress alone is not enough to bring a case to court. “That is not going to change”, says John Eardley “It’s going to get stricter. You will always have to show psychological injury to win a stress case”. However, there is some scope for movement at the statutory relief level for dismissal or constructive dismissal.
“You don’t have to suffer a personal injury if the stress forces you to leave your job. If you want to leave your job as a result of stress you don’t have to suffer a certifiable psychological injury. You can rely on the stress to justify why you resigned” he says.
Dismissal claims are handled by the unfair dismissals and equality tribunals. The maximum compensation is 104 weeks wages or two years. Personal injury claims in the High Court can go much higher.
Employers have no choice but to take the issue of stress seriously
In the last few years some employers have begun to take the threat of litigation due to a stressful workplace seriously. Damages for personal injury have gone as high as €100,000 in some cases. As well as having a company policy regarding stress, there are also numerous private stress management courses that companies can avail of for their staff.
High Performance Management, Media and Communication Skills Training is a consultancy providing a series of professional programmes for businesses and public bodies. At the moment they provide two very different courses for employers and employees to deal with stress.
Pat Henry, a well known yoga therapist in Dublin takes a holistic approach in his course. Pat Henry’s gym is famous for its high profile clients and most celebrities who come to Ireland have graced his doorstep. He began developing a stress management programme before stress became such a prevalent issue in the Irish workplace.
“I put together a wellness programme and we were well ahead of our time because we were doing wellness as part of a work life balance programme”, explains Pat, “Part of our lectures are based on that you come into this world with an earthly purpose and you have a divine purpose. Now in America the number one bestseller is how to find your divine purpose and I’ve been talking about it for the last thirty years!”
Mr. Henry believes that a sense of balance is extremely important for employees who also have the demands of family life. “We are suggesting to the company, ways of implementing systems within the company such as putting in fitness centres, putting in classes, putting in stress programmes for the staff, relaxation programmes, yoga and so on. And this has worked out super well”.
There is sometimes a lack of sincerity from employers on the issue of stress, and with so many courses around to free them from burden, a real concern and responsibility for employees can easily be put on the back burner.
Patricia Murray of the HSA agrees that many cases would never need to come to court if there was more communication and co-operation between employers and employees. “When one is stressed they are not the nicest person around because they don’t have any extra capacity for niceness. Then the employer when they see the word stress they think, let’s get rid of this person or let’s not deal with this because they are thinking litigation”, Patricia explains.
“If everyone could just be more ethical, less legal, sitting back and just be human about it, it would be an easier thing to deal with.”
Related:
1. UK survey reveals employers’ exposure to stress claims
