What is the liability of employers for employee psychiatric illness in relation to the common law duty of care

Business corporations are instituted for the primary purpose of economic gain. Often, as the pressure to show impressive profits in each financial quarter increases, it is the workforce who are put under undue stress. Ranging from unreasonably high productivity standards, to sub-standard and hazardous work environments, workers face several potential risks to their mental and physical health. The paradox lies in the fact that an unhealthy and burnt-out workforce is less productive than that which is relaxed and contented. But despite this, work-related stress continues to be a nagging problem facing business leaders and workers alike. With the profit motive being paramount for business leaders, their policies and decisions should be regulated by law. The common law duty of care provisions were designed toward this end, namely to hold employers liable for psychiatric illnesses suffered by employees, and for especially those illnesses arising as a result of employees being made to work under stressful conditions. (Vincent, 2009, p.45) The rest of this essay will critically evaluate this law and its effectiveness.

A recent case of failure in duty of care that got media coverage is the accidental death of a Northumberland man, whose employers were found guilty of not following rudimentary safety principles required by law. The circumstances of this tragic incident might be unique to the shipping industry; but the lessons learned from it is applicable to all workplaces that pose threats to safety of workers. For example, as the Grampian Police and the Health and Safety Executive rightly identified, the incident is symptomatic of much wider failure, namely, the lackadaisical attitude of top management to “exercise a reasonable duty of care by failing to apply the most basic of safety principles while working under hazardous conditions. Further, management procedures or safety tools in place to ensure safe working were either not applied or were applied ineffectively, to the extent that no one recognised the risks involved” (Daniel, 2010, p.20) While it is true that dependant family members of the victim could opt to pursue legal action against the employers. But what monetary compensation that they would ultimately get would not substitute for the lost health of the affected worker.

A number of common law statutes mandate duty of care requirements on part of employers. The Health and Safety at Work Act 1974 was the first comprehensive set of duty of care requirements. Following this, the Management of Health and Safety at Work Regulations were enacted in 1999, to ensure that employers perform risk assessment in the work environment and take preventative actions to reduce worker stress and injury. Other key legislations related to preventing work-related stress are:

“Disability Discrimination Act 1995 – stress may turn out to be the sign of an underlying condition that would amount to a disability. Under the Act, employers are required to make reasonable adjustments to the workplace, such as reducing the employee’s workload or pressures on an employee who is under stress. Discrimination legislation – if someone is being treated unfairly by, say, a line manager who treats female staff in an overbearing and dominating way, they may be able to argue that such behaviour amounts to sex discrimination” (www.thompsons.law.co.uk, 2010)

Previously, ‘duty of care’ provisions would pertain to physical injury to workers. But these days, the mental well-being of workers is also taken into account, as the “recent appeal court ruling that four police officers involved in the Hillsborough disaster were entitled to compensation for post traumatic stress disorder” shows. (Management Services, 1997, p.7) This verdict

“has highlighted the ‘duty of care’ employers owe their staff and could have an impact on future claims; and it underlines the responsibilities employers must take for the well-being of their workforce, mental as well as physical. Employers have been made to face the reality that workplace stress is a health and safety issue for which they are potentially liable. Employers should take a proactive approach to managing workplace stress in order to avoid costly settlements.” (Management Services, 1997, p.7)

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