It is a conversation that I must have everyday when discussing new overwork cases with prospective clients: How much work is too much so that a Court would consider their employer has breached the duty of care owed to them?
It is both a simple premise yet an entirely subjective concept and completely dependant upon the facts but: you can bring such claims.
There are no special control mechanisms applying to claims for psychiatric illness arising from stress and so such claims follow the ordinary principles of employers liability. Would be claimants need to show they have suffered an injury or a recognised psychiatric illness (e.g. depression) which was foreseeable and caused by their employer’s breach of the duty of care owed to them.
Once the foreseeability threshold for injury has been crossed, the fun really starts. Clients often tell me about all of the responsibilities they had. Teachers often tell me about pupil numbers and teaching hours and sales managers tell me about unrealistic targets but how do you compare the work of a neurosurgeon to that of a police officer to that of a part time cleaner? All maybe stressful roles but how much is too much?
One of the guiding principles in Lady Justice Hale’s now infamous Judgment in
Hatton v Sutherland is that the test is the same whatever the employment i.e. there are no occupations which should be regarded as intrinsically dangerous to mental health. Many of my former police officer clients used to find that extremely difficult to accept given their frequent exposure to trauma and risk of injury.
If you feel that you are suffering from work related stress, take our one-minute survey to see if you can make a claim against your employer.Take stress claim survey
One theme does however stand out from the reported cases; hours worked. A good rule of thumb is that if you had to work really hard between the hours of 9am – 5pm (or within standard contractual hours) it is going to be really difficult to convince a Court to award damages for an excessive workload even if that made you ill. Remember, to be successful, your illness needs to be caused, or materially contributed to, by your employers breach of duty. It is not enough to simply show you illness was caused by your employment. If however as a result of staff shortages you are having to work late into the evening and at weekends then we might be getting somewhere close.
I am not saying you cannot succeed with overwork cases in the absence of long hours, but other evidential markers will need to be in place to present such cases. Consider the following example:
Employee A becomes unwell due to stress of a heavy workload and is absent from work for 2 weeks. Upon their return to work, a referral to occupational health and a stress risk assessment identify parts of Employee A’s role which they find particularly stressful which could, with a suite of reasonable adjustments, easily reduce A’s stress. They are however not implemented and Employee A once again becomes unwell despite not working long hours.
Could such a claim succeed? In theory yes – whilst the ambit of argument available is beyond the scope of this article, in such circumstances it could be argued the employer breached its duty to A for not implementing the measures and/or adjustments which would have reduced A’s stress and preventing further illness.
Key tips for overwork cases:
- Try to preserve any evidence which shows the amount of hours you were working.
- Ensure your employer is aware of the effect your workload is having on your health (emails or grievances are the ideal way of doing this). Hopefully you will be given the support you need to reduce your stress but in the event that is not forthcoming and illness flows as a result, you will have stronger arguments to show that injury was foreseeable.
- Consider discussing your workload with your GP. GPs are often prepared to write to employers with their recommendations for reducing their patient’s stress levels. Failure to carefully consider and implement sensible adjustments could be considered a breach of duty.
Please note that these guides are for informational purposes only, and do not constitute legal advice. You can contact one of our expert consultant lawyers using the form below.
David is an occupational stress and psychiatric injury specialist.
David is one of the few specialists in the country whose practice is solely made up of work related stress claims. His expertise covers:
- Stress at work claims
- Bullying & harassment claims
- Violence at work claims
- Sexual harassment