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Stress Claims A guide For Unison Branches & Regions

Stress at work

Stress at work is increasingly a problem for UNISON members Members suffering the effects of stress at work are in a vulnerable situation and need to be supported with care and tact.

UNISON has been at the forefront in taking civil cases for damages for stress at work.

UNISON took the first ever successful personal injury stress case Walker v Northumberland County Council (1995) as well as other major landmark cases in this field. Often, however, trying to pursue a claim through the courts will not achieve the best possible outcome for the member.

Many such claims can be better resolved through industrial means.

Experience tells us that the majority of members seeking to claim compensation through our appointed solicitors are ultimately advised their cases cannot be pursued because they are unlikely to be successful. We have impressed upon our lawyers the importance of ensuring that such cases are handled in a sensitive manner, bearing in mind the particular circumstances that result in them being referred. At the same

time, it is important to ensure that UNISON and its officers deal with such cases in a similar way. It is vital that we pursue cases we can win in the civil courts as vigorously as we can; but it is not fair to raise the expectations of members who are unlikely to be able to pursue a successful civil claim.

Members often perceive that they have a far stronger case than, in fact, they do have in law. Reasons for this vary. Often it is because of the very genuine sense of grievance they have for what has happened to them. Unfortunately, they have often been given unrealistic expectations, either by the union or from press reports, of what can be achieved through claims for damages for stress related injury. A detailed booklet “Stress at work – A factsheet for UNISON members” (stock number 1925) is available to

Stress at work

Personal injury work related stress claims Following the Walker case, the Court of Appeal reviewed four successful County Court cases in the case of Hatton –v– Sutherland (2002) and gave further guidance on the law in stress claims. The judgment outlined a number of “practical propositions” which had to be satisfied for a case of this nature to succeed. This judgment made it all the more difficult for claimants to obtain compensation through the courts. This approach to stress cases was confirmed by the House of Lords in the case of Barber –v– Somerset County Council (2004). Since that time only a small number of stress cases have succeeded in the courts.

The most difficult problem to overcome is the “Threshold Test”, namely that the psychiatric injury or illness was caused by a breach of duty on the part of the employer

and was reasonably foreseeable to the employer. If the claimant has not advised their employer that he/ she was likely to suffer a psychiatric injury as a result of their problems at work it is unlikely that the case will succeed. Consequently the majority of successful cases have involved claimant’s who had already had one absence from work due to stress. The first absence has clearly put the employer on notice of the work related problem and that the claimant is likely to suffer a similar problem once again if steps are not taken to improve the employees working conditions.

It is also important to remember strict time limits apply in these cases. The limitation period (ie the time within which court proceedings must begin) is three years from the date on which the claimant first believed he/she was

Claims under the Protection from Harassment Act 2007 In July 2006 the House of Lords gave judgment in the case of Majrowski v Guys & St Thomas’s Hospital Trust. This confirmed that an employer could be legally responsible for acts of harassment/ bullying committed by a fellow employee. Therefore a claimant who had been the victim of bullying/ harassment at work could make a claim pursuant to the Protection From Harassment Act 1997.

The limitation period pursuant to this Act is longer, namely six years from the date on which the first act of bullying occurred. In addition a claim can be made under this act where anxiety/distress has been suffered, there is no need to have suffered a recognisable psychiatric illness.

However it is clear, particularly from more recent cases that these claims will not be easy to pursue either. The Court has stressed that the harassment must be very serious (ie of a criminal nature) and be such that any reasonable person would view it as harassment. It must have occurred on more than one occasion, be specifically targeted at the claimant and the perpetrator must also know that his/her actions will cause that person distress.

Stress at work

Procedure in personal injury stress cases In view of the above, since October 2001 stress cases have been dealt with in the following way to ensure an effective system is operated that best meets the needs of our members.

remedies but focusing in the main on employment law matters.

Remember the time limits for employment cases is much shorter: three months for the employment tribunal.

1 First contact

Appendix 1 gives some suggested text for the letter. The letter starts with the lodging of a grievance and goes through to detail pursuing a claim through a tribunal. As a final option, the possibility of pursuing a personal injury claim for stress would be included. It should give simple general advice on the difficulties of pursuing such a claim, the time limits and indicate that if a member wishes to pursue the matter further they should contact their branch secretary. It also attaches the brochure “Stress at work – A factsheet for UNISON members�.

It is important that any member who seeks legal assistance regarding an issue at work, which is causing them stress, receives prompt advice on employment law issues, dealt with initially internally by UNISON. Therefore, in cases where a branch submits an application for legal assistance for personal injury relating to stress, the member should in the first instance be written to by the branch providing general advice on the potential

Evidence of a successful grievance can be useful in pursuing a civil stress claim or a claim for bullying/harassment.

Consequently, and only where the grievance is to be concluded very shortly, it may be sensible for a member to conclude this internal procedure before assessing whether adequate evidence exists to pursue a civil claim.

When a member has been suffering from stress at work it can be hard for them to complete such forms, so the branch should assist if necessary. The branch should also ensure all relevant information and documentation is attached to the form. This will mean our appointed solicitors will then have as full a picture as possible of the issues involved and allow them to give their advice quickly.

2 Legal assistance When a member does indicate a wish to pursue a civil claim for injury which has been caused by stress at work, then the branch or full-time officer responsible for the branch should complete Section 1 of the UNISON stress form (stock number 1984) and then ask the member to complete Section 2.

The completed application form will assist them in their initial investigation, and it will also let them know the extent to which the branch or full-time officer has already been involved.

They will be encouraged to involve the branch or full time officer in their investigations.

Stress at work

Procedure in personal injury stress cases At the same time, it is very important to ensure that members’ expectations are not built up unnecessarily. From time to time in stress cases it is apparent that somebody within the union has encouraged the member to seek a claim for compensation and suggested the member has far better prospects of success than almost always turns out to be the case. It is important to avoid building up expectations in this way, and to ensure that suitable warnings are given to members when a request for legal assistance is submitted. It is particularly important to ensure that seeking legal assistance is not seen as a means of shifting an intractable problem away from the union to our lawyers, when in reality a personal injury claim may not be successful.

Upon receipt of the stress form by legal services, the union’s solicitors will be instructed. The union’s solicitors will review all the papers and give written advice directly to the branch of the prospects of a successful claim from the information provided. It is then crucial this advice is then promptly passed onto the member by the branch, as if the member remains unaware of the advice and time limits are missed UNISON could potentially be held responsible.

Equally if the solicitors contact the branch for more information it is important to reply quickly so that the matter can progress.

Our solicitors should adhere to UNISON’s standards of service quality for stress cases (Appendix 2). Any concerns about the quality

of service our branches receive from our lawyers should be raised with the legal services unit.

wherever appropriate, rather than resorting immediately to a personal injury court case.

UNISON’s legal services unit will then decide whether to continue legal assistance for further investigations to be carried out based on the advice received from UNISON’s solicitors after their consideration of the evidence.

Further legal assistance will be given where we are advised by our solicitors that the case has reasonable prospects of success.

This way of working will enable UNISON to focus our resources on the few personal injury claims which should be pursued. It will help to avoid the position where members are referred to solicitors without being given the opportunity to pursue other valid and effective means of addressing and resolving problems which have arisen at work.

It is hoped that this way of dealing with stress cases will ensure UNISON gives members proper and early advice of all possible remedies available. In addition, it will ensure that industrial relations solutions are pursued

Stress at work

Stress and employment tribunal claims

One of the most important points to be aware of is where a member is complaining of work related stress, (including anxiety and depression) as a result of an act of discrimination. A tribunal claim for discrimination can be brought on the grounds of sex, race, disability, sexual orientation, age, religion or belief. In these cases a claim for personal injury will generally be considered as part of any tribunal claim for discrimination.

In the case of Sheriff –v– Klyne Tuggs (Lowestoft) Ltd [1999] IRLR 481 an employee brought a claim for race discrimination in an employment tribunal. He suffered a nervous breakdown and was signed off work with anxiety and stress. Although he settled his employment tribunal claim, he then brought a separate claim for personal injury in the County Court 10

as a result of the anxiety and stress he had suffered. The County Court held that as his personal injury was caused by the discrimination, compensation for those injuries could have been recovered in an employment tribunal as part of his race discrimination claim.

The Court refused to consider his personal injury claim on the grounds that it was an abuse of process to try and bring a claim for personal injury in a separate court when it arose out of the same facts as his discrimination claim.

This means that a member who suffers unlawful discrimination on any of the above grounds MUST ensure that any personal injury claim forms part of any employment tribunal claim otherwise they could lose the right to bring a personal injury claim.

It is important, when dealing

with members, to establish at the outset what they say the cause of their stress is. If our member says that this is due to bullying or harassment, try to find out more, such as if it is suggested that the harassment is on the grounds of sex, race, disability, sexual orientation, age or religion or belief.

Remember: • That there are different legal tests which apply to claims for discrimination compared with claims for personal injury (See Box 1). • There are strict time limits that apply to employment tribunal and personal injury claims (See Box 2).

If the member claims their stress is for one of these reasons, complete an employment law CASE form for the member and refer it to the regional officer for employment law advice. It is important these cases are identified at an early stage so that the appropriate advice can be given to protect the members interests.

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Stress at work

Stress and employment tribunal claims

Discrimination – the member has to show they have been treated less favourably because of their sex, race, disability, sexual orientation, age, religion or belief and that the discrimination caused their personal injury.

Employment Tribunal – generally a claim, must be lodged within 3 months less one day of the act or, where there are a series of acts, the last act complained of. The time limit can be extended in certain limited circumstances.

Personal injury – the member has to show that the employer not only caused the personal injury but that the personal injury was reasonably foreseeable.

Personal injury – three years from the date of knowledge of the injury and six years if the case is based upon the Protection from Harassment Act.

Appendix 1 gives suggested text for a letter of advice to a member from the branch.

Appendix 2 outlines UNISON’s standards of service quality for stress cases.

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Appendix 1

Letter of advice from the union Dear Colleague, I am writing to confirm what you must do about the problems you are experiencing at work. If you have not already done so you must notify your employer immediately about your concerns.

If no satisfactory response is obtained following this, then you should instigate the grievance procedure as soon as possible. (insert appropriate person’s name) can assist you through this procedure. If you want to pursue this course of action or you are already involved in a formal grievance and you want advice please contact (... insert appropriate person’s and contact details) for assistance.

A very small number of members may be able to pursue their case

further through the employment tribunal for example where there has been unlawful discrimination.

Please note the time limit for filing your case with the tribunal is only three months from the date of the act complained of, even if your grievance has not been dealt with by then. If you think you may have such a claim you must let me know immediately as the time limit is strictly applied.

Finally, you may be able to pursue a personal injury case against your employers for the injury you have sustained. I should warn you immediately that such claims are very difficult to pursue and very few are successful. I enclose a booklet setting out the legal requirements for claims of this nature and what has to be proved in order to be successful. However, if you feel you may have a good case please let 13

Stress at work

Appendix 1

Appendix 2

me know so that I can complete the appropriate documentation with you. I would ask you to do this sooner rather than later so that your claim can be investigated at an early stage, whilst all the evidence is fresh. The time limit for bringing such a personal injury case is outlined in the attached booklet (ie three years from the date you knew or ought to have known you were suffering from a psychiatric injury caused by your work and in cases of bullying/harassment where you may be able to bring a claim under the Protection from Harassment Act 1997, six years from the date on which the first act of harassment took place).

UNISON’s standards of service quality for stress cases

Yours sincerely Branch/Region

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The following describe the standard of service UNISON branches should expect to receive from our solicitors in stress claims.

Information Once UNISON’s legal services unit instruct our solicitors to advise the branch in writing on the potential prospects of success of a stress claim you will receive the following information: • the name of the lawyer acting and in whose name all letters should be signed, and the following as soon as possible • a letter of advice including a preliminary assessment of the prospects of success of the claim or seeking further information from you;

• where further investigation is required, our solicitors will investigate and advise you of the prospects of success in writing.

Methods of communication UNISON is committed to using plain English and it is very important that our lawyers use plain English and do not use any unnecessary jargon whenever they contact you.

How quickly the lawyer should make contact

because the lawyer concerned is out of the office, in court or on holiday, somebody else with knowledge of the case should be available to speak to you. The lawyer should normally reply to letters within five working days.

Complaints If you are not happy with the quality of service you receive you should raise any concerns with the Membership Legal Services Team, Legal Services Unit, 1 Mabledon Place, London, WC1H 9AJ Telephone 0207 551 1393 Fax 0207 551 1163.

The lawyer should answer any letter from the branch as soon as possible. The person who is advising on the case should return the branch’s phone calls on the same working day or at least within 24 hours. If this is not possible 15

Contact us For more information or to join UNISON visit our website at www.unison.org.uk or call UNISONdirect on 0845 355 0845 (voice) or 0800 0 967 968 (text) Lines open from 6am to midnight, Monday – Friday and 9am to 4pm Saturday

Designed and produced by UNISON Communications. www.unison.org.uk Printed and published by UNISON, 1 Mabledon Place, London WC1H 9AJ CU/April 2008/16921/1925/Printer’s ref:10004