Legal update: Are your employees stressed at work?03Mar2016
“In our daily work, there are many factors which may exert great stress on us, such as heavy workload or mundane job, poor working environment, long working hours, no clear working instructions, no job security, inharmonious relationships with colleagues and supervisors etc.”
Labour Department, Occupational Safety & Health Branch (2005), Occupational Health Guide – Good Health is Good Fortune.
In recent years, stress at work has become an increasingly significant problem for both employers and employees. Indeed, with the work place becoming more competitive and looming concerns over job security it is not at all surprising that employees are finding work more and more stressful.
By virtue of the employment relationship, employers in Hong Kong have an obligation to, as far as reasonably practicable, ensure the health and safety of its employees at work. This duty is four-fold and includes the following:
1. Competent staff;
2. Safe place of work;
3. Proper plant and equipment;
4. Safe system of work.
Traditionally, there was no relief available for employees who suffered psychiatric injury arising from workplace stress because an employer should be entitled to assume that its employees are capable of withstanding the usual pressures of the job. However, developments in UK law suggest that the Courts may have become more sympathetic towards those suffering from psychiatric illnesses caused by stress in the workplace.
While these cases have not been formally adopted in Hong Kong, it is possible for Hong Kong Courts to follow the UK authorities to hold employers liable for their employees’ stress-induced psychiatric illnesses. As such, employers and employees should become familiar with the developments in the relevant field.
Foreseeability of such injury will be determinant
Walker v Northumberland County Council  I.C.R. 702
The starting point in exploring this issue of workplace stress and psychiatric injury claims would be the landmark judgment of Walker v Northumberland County Council  I.C.R. 702, where it was decided that employers have a duty not to cause psychiatric damage to employees by overloading them with work in excess of their capacity.
In that case, Mr Walker was a senior social services officer at the Northumberland County Council, who suffered a nervous breakdown in November 1986 due to high levels of stress at work.
Mr Walker took a break and returned to work in March 1987, on the understanding that he would be provided with additional assistance as recommended by his GP. Unfortunately the extra support was withdrawn within a month as Mr Walker’s workload continued to increase.
By September 1987, Mr Walker found himself, once again, suffering from anxiety. In February 1988, after a further breakdown, Mr Walker was dismissed on the ground of permanent ill health. He brought an action against the Defendant council, claiming that it had breached its common law duty of care to provide a safe working environment.
The Court held that the Defendant was not liable for the first breakdown because it could not have reasonably foreseen that Mr Walker was being exposed to a significant risk of mental illness through his job. However, once Mr Walker had been diagnosed and this diagnosis has been cited by his GP on various sick notes, the employer should have appreciated that Mr Walker was more vulnerable to further damage and should have responded to the problem quickly.
Sutherland v Hatton  EWCA Civ 76 and Barber v Somerset County Council  ICR 457
Later on, in Barber v Somerset County Council  ICR 457, the court held that the overall test was that of the reasonable and prudent employer, who will take positive steps for the safety of his employees in light of what he knew or ought to have known.
Where there are indications that a particular worker is emotionally vulnerable or is showing signs of stress, and nothing is done about it by the employer, the employer may be found to be in breach of his duty to provide a safe system and place of work.
Once an employer is on notice that there is a potential stress-related illness, then it will need to be proactive and take reasonable remedial steps. In the case of Hatton v Sutherland, Lady Justice Hale laid down a set of practical propositions for employers. In summary, whether steps taken by an employer are reasonable will depend upon “…the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicability of preventing it, and the justifications for running the risk” (Lady Justice Hale in Hatton  at paragraph 32).
The Hatton case is significant because it emphasised that warning signs from employees are particularly important when considering whether an injury was reasonably foreseeable. This meant that the employees face a rather high hurdle in showing that the employer could reasonably have foreseen their psychiatric injury.
In the recent case of Daniel v Secretary of State for the Department of Health  EWHC 2578 (QB), employers and employees are again reminded of the high threshold in occupational stress claims, where, in the absence of a specific disclosure by a claimant as to his or her ability to cope or a previous absence known to be as a result of stress, it would be very difficult overcome the high threshold.
What are employers required to do?
Following the Hatton decision, it was believed that the case offered a get-out-of-jail-free card to any employers who offer counselling services to troubled employees. Indeed, one of Lady Justice Hale’s well-known practical propositions stated that “(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty”. However, more recent developments in case law have shown that the provision of counselling services is not a panacea for the employer’s obligations.
Notably, in Intel Corporation (UK) Ltd v Daw (2007) IRLR 355, Mrs Daw had a breakdown in March 2001 due to her overwhelming workload. On her manager’s request, she wrote an email to him detailing all the problems resulted from her being overworked. Intel then promised to hire another employee to assist. However, Intel failed to act on this promise and Mrs Daw had a second breakdown followed by a period of depression.
In Court, Intel purported to rely on Lady Justice Hale’s judgment in Hatton and said that since they provided a counselling service which Mrs Daw had not used, she was not entitled to claim damages for her psychiatric injuries. The Court of Appeal rejected Intel’s argument and said that Intel was obliged to respond to Mrs Daw’s concerns in relation to her workload and counselling service is inadequate as it could not have reduced her workload.
This part of Lady Justice Hale’s judgment was further challenged in 2008 in the case of Dickens v O2 Plc  EWCA Civ 114. The facts of the case were not dissimilar to Intel in that, Ms Dickens had complained of excessive stress and asked for a 6-month sabbatical to recuperate. She was instead sent to O2’s in-house counselling.
O2 argued that while they were aware that Ms Dickens was stressed, it was not clear that she was at risk of psychiatric injury. The Court of Appeal rejected this argument and held that O2 had had very clear indication that Ms Dickens was close to a breakdown as she had been complaining over a period of time. As such, referring Ms Dickens to the in-house counselling was not an adequate response to the situation.
Points to note for employers and employees
Unfortunately it is not easy for an employee to make his or her employer aware of his or her problems. Employees may be concerned that the employer will think that he or she is underperforming or that his or her apparent inability to handle the stress of the job would reflect badly on them or it may purely be based on a general reluctance to engage with the employer at a personal level sharing confidential personal matters.
On a different note, notwithstanding this new, developing, area of protection for employees, the much better solution is of course for employers and employees to prevent the occurrence of work-related psychiatric injuries. In this regard, the Occupational Safety and Health Branch of the Labour Department offers some practical recommendations that both employers and employees ought to take account of:
1. Regular discussions between the employers and employees on improving the working environment and facilities;
2. Employers or supervisors to give clear instructions and set achievable targets with a view to improve work efficiency;
3. Being proactive;
4. Maintain good relationships with supervisors and colleagues and minimise tension in the workplace;
5. Engage in healthy activities, such as exercising, to reduce stress arising from work.
Development in protection for stress victims
Back in 2014, German labour minister, Andrea Nahles, initiated a new research study on new “anti-stress” legislations under which after-work emails will be outlawed. This is specifically designed to combat the newest form of work-stress associated with the popularisation of new generation smartphones and communication technology. The fact that employees are so accessible after work-hours mean never-ending work days and employees are never really “off-duty” even if they are out of the office or even on vacation.
Whilst there is no indication as of yet that Hong Kong will be considering such a novel legislative move, this German proposal definitely suggests that stress-related psychiatric illnesses are on the rise and must be taken seriously.
If you have any questions please contact Russell Bennett or Kim Boreham.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.