Previous Article Next Article Many employees have time off work because of a stress-related illness butif, at interview, they failed to declare a similar problem in a previousemployment, they could risk losing their job. Sensitive handling for allparties will help achieve a fair resolution, by Jonathan Maude Peter applies for a position as manager at Logg & Co, a freightlogistics company. Logg & Co anticipates winning a contract that is likelyto increase the work coming into its depot by 50 per cent and has decided torecruit someone to perform the managerial function at a local level. Peter’s application form and CV show he has a fair amount of experience. Theanswers he gives on the medical questionnaire do not disclose any significantmedical condition. But he has, in fact, suffered from stress-related illness inthe past. Following interview it is decided to offer him the position as itappears he will need minimal guidance in undertaking the role. Is Logg & Cowise to offer him the job without further medical investigation or discussion? Non-disclosure Logg & Co has considered Peter’s application on the basis of hisexperience and his interview. In addition, Peter has completed a medicalquestionnaire that does not highlight any pre-existing issues that shouldconcern the company. On 5 February 2002 the Court of Appeal, in the decision of Hatton vSutherland and others, considered four cases on appeal from four separatecounty courts. Each concerned awards of damages against employers after thelitigants concerned had stopped working due to stress-induced psychiatricillness. In essence, for the employer to be liable for negligence, the employee needsto show that the employer has breached a duty of care that it owes to employeesby allowing a practice to continue when it was reasonably foreseeable it wouldcause injury. The employer is obliged to provide a safe system of work; thisamounts to an obligation to provide reasonable support to the employee toperform his or her duties in a way that will avoid causing psychologicalinjury. This recent decision follows a number of cases in which employers have beenheld liable for psychiatric injury since the landmark case of Walker vNorthumberland County Council, 1995, 1 All ER 737. The Court of Appeal used theHatton decision to give useful “practical propositions” that areintended to enable courts to consider claims in the future. One such”practical proposition” is that an employer is entitled to take theinformation before it at face value and is not required to investigate anymedical issues further unless it is put on notice that there is an issue thatwarrants further investigation. Logg & Co is therefore entitled to rely onthe information given by Peter. Medical history If Peter had disclosed he had suffered from a stress-related illness, itwould have been necessary for Logg & Co to consider obtaining furtherdetails about the circumstances that caused it. It would also have needed toascertain whether there were steps it should take to reduce the possibilitythat Peter would suffer a recurrence. This would also go some way todischarging any duty to make reasonable adjustments that Logg & Co may oweto Peter under the Disability Discrimination Act 1995. Peter has been in his job for six months. He has not complained to Logg& Co about any work-related stress, but there has been a noticeableincrease in his intermittent sickness absences during the past two months.Peter has now informed Logg & Co that he will be absent for two weekshaving been certified as suffering from stress-related depression by hisdoctor. What action should be taken? There will need to be a meeting with Peter to discuss the absence and thereasons for it. It would also be advantageous to obtain independent medicalevidence as to his condition and to consider steps the company might take toalleviate factors that may be attributing to the condition when he returns tohis position. The important point to bear in mind is that Logg & Co will only beliable for breaching the duty to provide a safe system of work if the companycan be shown to have caused or materially contributed to any harm suffered byPeter. The Court of Appeal in Hatton suggested that if Logg & Co can show ithas taken steps to avoid breaching its duty it is unlikely to be found to havebreached it. If independent medical advice about Peter’s problems is obtained andcounselling or other assistance offered, the company is unlikely to be found tobe acting in breach of its duty. It must ensure that its contractualdocumentation provides Logg & Co with the right to request independentmedical advice on a specific employee. Clearly, if Peter refused to co-operatewith any such examination it would not assist him in any subsequent claim broughtagainst Logg & Co. Redistribution of duties Other issues that may need to be discussed with Peter include theredistribution of duties or demotion. Logg & Co will not be in breach ofits duty if Peter wants to stay in the job rather than face demotion even if hesubsequently suffers from illness through the pressures of the job. This is oneof the major issues to have come out of the Hatton decision: both employer andemployee bear the risk, so the employee needs to decide whether to risk anypsychological breakdown by staying in the job or consider dismissal ordemotion. If Logg & Co took the view that a redistribution of duties or demotionwas not appropriate, it might be in a position to consider dismissal as thecourt would consider the size and scope of Logg & Co’s operation, togetherwith the demands faced by the company, to decide what is reasonable. Again, this is an interesting point to come out of the Hatton decision, asthe court considered practical issues that may benefit smaller employers. Previously, the courts have not been particularly sympathetic to anyarguments that costs or a lack of resources prohibited making certainadjustments. Employment history The medical examination and discussions with Peter reveal that in hisprevious job he suffered from occupational stress and that he eventually lefthis former employer as a result of it. Logg & Co decides that as the volumeof work from the new contract is not as great as it originally anticipated,some of the managerial responsibilities will be run centrally and Peter willreturn to a non-managerial position. What are the issues that now need to beconsidered? It is for Logg & Co and Peter to agree his return to a non-managerialposition. The employer needs to be aware that it cannot simply impose changesunless it has the contractual right to do so. As a result, it would be sensibleto ensure all discussions about Peter’s return are noted and any change instatus is agreed, in writing, with Peter. This will amount to a variation to Peter’s contract of employment and Logg& Co will not simply be able to allege, in defending a constructivedismissal claim for example, that it was acting in Peter’s best interests andin a way so as not to breach the duty of care it owed him. Logg & Co is now aware of the previous condition and that Peter did notdisclose it. Despite the fact it may be in a position to take action as aresult of this non-disclosure, it is aware of the condition and, accordingly,will need to ensure regular discussions take place with Peter to monitor hisprogress. If it becomes apparent that Peter is unable to undertake even the reducedrole, then Logg & Co will need to consider alternatives with him and thismay include terminating his employment. If it does take the step of terminating the contract of employment, subjectto obligations that it may owe in connection with unfair dismissal rights andpossibly claims under the Disability Discrimination Act 1995, it is unlikely tobe found to be in breach of the duty of care. If Peter was successful in any claim against Logg & Co, the Court ofAppeal has indicated that any damages would take account of the pre-existingdisorder or vulnerability and of the possibility that Peter would havesuccumbed to a stress-related disorder in any event. In addition, Logg & Co would only pay for the proportion of harmsuffered as a direct result of its wrongdoing. In this event, the level ofcompensation should be reduced fairly dramatically. Jonathan Maude is a partner in Manches Employment Practice This article first appeared in the April issue of Employers’ Law. Forsubscription sales and enquiries telephone: 01444 445566. Key points– The employer is obliged to providea safe system of work; this amounts to an obligation to provide reasonablesupport to the employee to perform his or her duties in a way that will avoidpsychological injury– If an employee wishes to stay in a stressful job, bothemployer and employee bear the risk, so the employee needs to decide whether torisk any psychological breakdown by staying in the job or consider dismissal ordemotion– If a person is unable to undertake even a reduced role andthe company takes the step of terminating the contract of employment – subjectto obligations that it may owe in connection with unfair dismissal rights andpossibly claims under the Disability Discrimination Act 1995 – it is unlikelyto be found to be in breach of its duty of care– In the event of a claim for constructive dismissal, damageswould take account of the pre-existing disorder or vulnerability and of thepossibility a person would have succumbed to a stress-related disorder in anyevent Truth be toldOn 1 Jul 2002 in Personnel Today Comments are closed. 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