Do you know if your staff are stressed?

stress is estimated to cost british industry more than £370m a year, so many employers are reviewing the way they deal with stress in the workplace. In so doing, account must be taken of the different legal hurdles that have to be overcome when stress-related claims are brought.

Such claims can be brought in a number of ways. In Marshall Specialist Vehicles Limited v Osborne, the Employment Appeals Tribunal compared the legal test that must be met in a civil claim for personal injury resulting from stress with the test for bringing a claim for constructive dismissal if the employee resigns because of the stress.

The tribunal took the view that the same principles should be applied. Any claim arising out of workplace stress involves an allegation that the employer is in breach of their implied contractual duty to take reasonable care for the safety of their employees. So, to succeed in a claim for stress caused by overwork, an employee must show that the type of injury suffered and the time when that injury was suffered were both reasonably foreseeable. Where someone conceals the extent of their stress, the employer is not expected to check with the employee that all is well.

The key difference in the legal tests is that, for the purposes of claiming damages for stress, it is sufficient to establish that the implied health and safety term has been breached, but where the breach of that term is said to justify constructive dismissal a fundamental breach must be established. This means it is more difficult to establish a claim for constructive dismissal arising out of workplace stress than it is to establish liability in a claim for personal injury.

Employees alleging workplace stress could also consider a claim under the 1995 Disability Discrimination Act where they can demonstrate that they have a clinically recognised mental illness – clinical depression, for example. For a claim to succeed under this law, it's not necessary for the employee to show that the employer had actual knowledge of their illness; he or she merely has to show that their employer had knowledge of signs of the illness which were sufficient to alert them to its existence.

Another possibility open to employees is to involve the Health & Safety Executive, which can issue improvement notices such as the one it recently gave to West Dorset NHS Trust requiring it to tackle stress issues. A passive approach to workplace stress is likely to be fatal to the defence in any action taken by the HSE, and indeed in any claim under the Disability Discrimination Act. So employers are advised to put in place appropriate policies to combat stress and to tackle the issue head-on.