Mrs McAdie had 20 years continuous service with the Bank in England. Following a period of ill-health in the mid 90s, Mrs McAdie moved from full time to part time employment in order to reduce her stress levels. However, when she was asked by the Bank to move branches in 2003 to temporarily work full time, Mrs McAdie refused. She considered that the Bank’s request was aimed at forcing her to leave and that this was the Bank’s delayed reaction to a successful grievance that she had lodged two years previously. She also stated that stress was a factor for her refusal. Eventually Mrs McAdie was signed off as sick on grounds of stress caused by the situation and submitted a further grievance. The Bank dismissed her after she had been absent for a year.

The Tribunal found that it was Mrs McAdie’s working conditions and the mishandling of her further grievance by the Bank that had caused her stress–related illness and her resulting absence. The Tribunal stated that to consider her dismissal as fair because the employer had simply followed the correct procedures, “would be to over simplify the circumstances of this case”, even though Mrs McAdie was indefinitely incapable of performing her job. Accordingly, the Tribunal concluded that her dismissal was unfair and awarded her substantial compensation. The Bank appealed the decision to the Employment Appeal Tribunal (the “EAT”) where it was successful. Mrs McAdie appealed.

The Court of Appeal decision

The Court of Appeal ratified the decision of the EAT and found that the dismissal was fair. The Court held that the relevant question in this case was whether it was reasonable for the Bank to dismiss Mrs McAdie in light of the circumstances present on the date that it did and not whether the Bank should have found itself in those circumstances to begin with. The medical evidence was unequivocal that Mrs McAdie was unfit for work and that there was no prospect that she would be able to return. Her dismissal, in those circumstances, was fair.

Comment 

This case could well be a helpful decision for many employers. However, it is not a green light in all cases for employers to be able to dismiss employees who are on long-term absence as a result of a stress-related illness. Employers cannot be restricted from dismissing an employee who has been on long-term sick leave because the employer caused the illness, however the employer should go the “extra mile” in these circumstances to make any resulting dismissal fair. This could include allowing for longer periods of absence or helping to find alternative employment. Where the employer has gone the extra mile and the medical evidence is clear that the employee cannot return to work or will not be able to return for the foreseeable future, then any dismissal should be fair.

It must also be remembered that Mrs McAdie was not a disabled person for the purposes of the Disability Discrimination Act so there was no obligation on the Bank to make reasonable adjustments.

Other legal issues around stress in the workplace

Employers cannot afford to let their guard down when dealing with employees who suffer from stress related illnesses, even though Mrs McAdie ultimately lost her unfair dismissal claim. While there is no specific piece of legislation that deals with stress, there are statutory provisions found in other areas of the law that are applicable, as well as relevant case law. The main areas that employers also need to consider are detailed below.

Personal injury claims

Many employees suffering from stress consider that their employers have been negligent and are to blame for their stress, therefore they seek to bring personal injury claims against their employer. Such claims, however, are far from straightforward and it is very difficult for employees to succeed. In Sutherland v Hatton, the Court ruled that: -

• There are no particular control mechanisms for psychiatric illnesses arising from stress at work;
• All forms of employment should be regarded as the same when testing for the danger to an employee’s mental health; and
• The effects of any stress related illness must be reasonably foreseeable which normally involves consideration of three issues, namely (1) whether there is an abnormal level of sickness absence within the department or job type (2) whether the employer has several employees doing the same job who have all experienced unacceptable levels of stress and (3) whether there were any warning signs from employees. The latter consideration will play a vital role in establishing liability because once the employer is on notice of the adverse effects of stress the consequences are held to be more foreseeable.

Long hours culture

Long hours are considered to be a major contributor to stress and employers should consider whether they have a suitable regime in place to monitor this. The provisions of the Working Time Regulations 1998 were designed to protect the health and safety of employees and workers by setting certain minimum requirements in relation to holidays, daily rest periods etc. If an employee is going to work regularly over 48 hours per week then an employer should consider the use of an opt out agreement. Employers should also consider enquiring whether any of their employees or workers have second jobs so that they are aware of how many hours an employee is actually working, even if this is partly for another employer.

Bullying and harrassment

Employers may be liable for bullying and harassment, either directly or vicariously, if the offending acts are performed by other employees in the course of their employment. This liability can occur under all the various forms of discrimination legislation, breach of contract claims, unfair constructive dismissal claims or cases around breach of a statutory duty, such as the duty to provide a safe place and system of working under the Health and Safety at Work Act 1974.

Furthermore, the Protection from Harassment Act 1997 also allows employers to be found vicariously liable for the actions of their employees within the workplace. The Act is likely to provide an easier route to compensation for employees than claims based on the discrimination legislation or personal injury claims for stress at work. Harassement under the Act must involve conduct on at least 2 occasions which caused the employee alarm or distress. The conduct can include verbal abuse. 

Under the discrimination legislation, an employer is usually treated as liable for the discriminatory act of its employee, unless it can show that it is entitled to the “statutory defence” in that it took such steps as were reasonably practicable to prevent employees committing the particular discriminatory act or committing acts in general.  Reasonable steps are likely to include (as a minimum): -

• Having and implementing an equal opportunities policy and an anti-harassment and bullying policy;
• Making all employees aware of the policy and its implications;
• Regularly training managers and supervisors on these issues; and
• Taking steps to deal effectively with complaints, including taking appropriate disciplinary action..

However, even such action does not provide a defence, “statutory” or otherwise, to claims under the Protection from Harassment Act if the acts complained of are found to have occurred. 

This e-briefing is sent to you by Anderson Strathern's Employment Department.  We hope you find it useful.  If we can help with any matters arising from this e-zine, or any employment law issue please contact Chris McDowall, or any other member of our team.