stress in the workplace and disability
TRANSCRIPT
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Stress in the Workplace and Disability
Discrimination
By: Adam Willoughby
On: 4th November 2015 @ 13:00
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Housekeeping
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Stress in the Workplace
and Disability
Discrimination By Adam Willoughby, Barrister
Broadway House Chambers, Leeds & Bradford
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Broadway House Chambers Leeds and Bradford
Doing things differently for 80 years
Broadway House Chambers "employment barristers are uniformly
excellent" Legal 500, 2013
Appearances in key cases
o Chief Constable of West Yorkshire Police v Vento (2003, Court of Appeal)
o Chief Constable of West Yorkshire Police v Khan (2001, House of Lords)
o Hershaw & ors v Sheffield City Council (2014, EAT)
o Bainbridge v Redcar & Cleveland Borough Council (2008, Court of Appeal)
o Homer v Chief Constable of West Yorkshire Police (2012, Supreme Court)
o G4S Secure Solutions v Jones (2014, EAT)
www.broadwayhouse.co.uk
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Topics to Consider
Identifying “Stress in the Workplace”
Warning Signs: How stress may arise
Effects of Stress on Employer
What are the duties of an employer?
What claims could stress in the workplace give rise to?
When Stress = Disability
Discrimination (Reasonable Adjustments in more detail)
Unfair Dismissal
Practical solutions & HR Support
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Identifying Stress in the
Workplace
Health and Safety Executive:
“the adverse reaction people have to excessive pressures
or other types of demand placed on them”
ACAS Guidance identifies a…
Difference between pressure creating a ‘buzz’ which is
often a motivating factor and the negative experience
which can occur when this pressure becomes excessive
and the individual is unable to cope
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Stress is not an illness - the psychological impact of stress
can contribute to problems with ill health. As well as
anxiety and depression, stress has been associated with
physical problems such as heart disease, back pain and
gastrointestinal illnesses
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How Stress may arise…
Employee’s personal lives (difficult for employers to be
aware of these factors)
Work-related pressures - reasonable assumption
employer on notice of issues
Combination
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Why do we need to worry?
HSE estimates that work-related stress costs society
between £3.7 billion and £3.8 billion a year (1995/96
prices)
Latest figures estimate 13.5 million working days were
lost to stress, depression and anxiety in 2007/8
Best interests of the company: deal with stress issues
from an economic perspective
Stress is now the most common reason for employee
absence, costing UK employers an estimated £1.24
billion per year
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Why do we need to worry?
Modern day working lives: more for less culture
Longer hours, increased pressure, rising awareness of
‘stress issues’ and lessening mental health stigma
Legal implications…
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Employer’s Duties
Management of Health and Safety at Work Regulations
1999
Must carry out a workplace risk assessment to identify
any potential risks.
The Health and Safety at Work Act 1974
Duty to ensure that, as far as is reasonably practicable,
their workplaces are safe and healthy. Also under a duty
to take measures to control any risks that they identify.
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Workplace Harassment
Protection from Harassment Act 1997
(usually very difficult for an employee to succeed against his or her employer under the PHA 1997, but important to be aware of)
To fall within it, the conduct complained about must:
Have occurred on more than one occasion.
Be targeted at the claimant and be intended to cause distress.
Be serious enough to amount to a criminal act.
Not simply amount to a disagreement between two work colleagues.
Have a close connection between the conduct and the job of work.
Not be considered to be a reasonable and proper criticism of poor performance
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Common Law Duty
Duty of care is owed by employer to employee
Employee must prove breach
Forseeability: what did the employer know, or ought to
have known, about the pressures on the individual
employee at the time
Standard of Care: Barber v. Somerset County Council
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Disability
Work-related stress issues are likely to manifest themselves as mental illnesses – usually depression
The Equality Act 2010 – legal tests for a qualifying disability.
1. There must be a physical or mental impairment.
2. Impairment must have substantial adverse effects.
3. Those substantial effects must be long term.
4. The long-term substantial effects must have an adverse effect on normal day-to-day activities.
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Early Consideration of Condition…
How is the stress manifesting itself?
Severity?
Ability to function?
Changing role
Reducing load
Additional support
Talking – managerial support
Confidentiality
OCCUPATIONAL REFERRAL IS A MUST
CONSIDER PSYCHOLOGICAL ASSESSMENT
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IF DISABLED (Act on the side of
caution)
it is unlawful for the employer to engage in the
following:
direct discrimination;
discrimination arising from disability;
indirect discrimination;
failing to make reasonable adjustments; and
harassment and victimisation.
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KEY WARNING: An employer can discriminate against an
employee even if it is unaware of the disability
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Reasonable Adjustments
Frequently arises in “stress in the workplace”
type cases
What is the duty?
Section 20 of the EqA 2010 provides that the duty
to make reasonable adjustments comprises of
three requirements, set out in s 20(3), (4) and (5)
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' ' (3) The first requirement is a requirement, where a provision,
criterion or practice of A's puts a disabled person at a substantial
disadvantage in relation to a relevant matter in comparison with
persons who are not disabled, to take such steps as it is
reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical
feature puts a disabled person at a substantial disadvantage in
relation to a relevant matter in comparison with persons who are
not disabled, to take such steps as it is reasonable to have to take
to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled
person would, but for the provision of an auxiliary aid, be put at a
substantial disadvantage in relation to a relevant matter in
comparison with persons who are not disabled, to take such steps
as it is reasonable to have to take to provide the auxiliary aid. ' '
Section 21(1) provides that a failure to comply with the first,
second or third requirement is a failure to comply with the duty
to make reasonable adjustments.
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Reasonableness The duty to make adjustments is, as a matter of policy, to enable
employees to remain in employment, or to have access to employment
(Harvey on Industrial Relations and Employment Law)
Knowledge – (Schedule 8 of EqA 2010)
(1) A is not subject to a duty to make reasonable adjustments if A does not
know, and could not reasonably be expected to know—
(a) in the case of an applicant or potential applicant, that an
interested disabled person is or may be an applicant for the
work in question;
(b) [in any case referred to in Part 2 of this Schedule], that an
interested disabled person has a disability and is likely to be
placed at the disadvantage referred to in the first, second
or third requirement.
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Unfair Dismissal
No automatic unfair dismissal if by reason of disability
BUT likely to be unfair
Constructive Dismissal
Capability Dismissal
Conduct and excessive absenteeism
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HR Support
Paper trail
Early Advice
Training of line manager’s and general management,
particularly if conducting disciplinary/capability etc.
processes
Policy – Stress At Work
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Adam Willoughby
Barrister
Broadway House Chambers
1 City Square
Leeds LS1 2ES
Tel: (0113) 246 2600 Email: [email protected]
Twitter: @ACWilloughby
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