What does an employee have to prove to make a civil occupational stress claim?
1. That they have developed a recognised psychiatric injury;
2. That the employer caused it by a failure which breached its duty to take reasonable care for the employee's well being.
3. That the breach was so severe that it was foreseeable an ordinary employee could well have suffered as a result.
In practice it can be difficult to prove the employer's breach. This is because it must be proved that the working environment posed a real risk of causing illness to an employee and that the employer knew (or ought to have known) that the particular employee was exposed to that risk and in fact suffered injury. In order to prove this "foreseeability", claimants often either have to produce a report from a doctor or a prior history of stress related absence that the employer was previously made aware of.
Furthermore, it is not usually enough only to show that the failure caused actual injury to the particular employee. Proof is usually required that the employer allowed conditions to be in place which were sufficiently severe to create an objective risk of imminent psychiatric illness to the average employee. Thus a claimant who suffers genuine illness because of a failure which would not be expected to affect or which did not affect his colleagues will have difficulty succeeding.
Criminal Liability Statutory Liability
The Health and Safety at Work etc Act 1974 provides that:
"It shall be the duty of all employers to ensure, so far as is reasonably practicable, the health safety and welfare of all their employees whilst they are at work."
This applies to stress related illness as well as physical injuries and applies a higher standard on employers than in civil damages claims.
"Reasonably practicable" here means that the employer must do everything which is reasonably possible and an employer with poor management systems which causes a stress related psychiatric illness may be guilty of an offence.
It therefore appears to be the case that while stress related illness at work still has a significant impact upon UK business it remains a difficult area to succeed in when pursuing a civil damages claim and one where criminal prosecution is relatively rare.