Stress at Work Claims: An Employer’s Guide to avoiding the pitfalls

1. Prolonged stress built up over the course of time through exposure to an excessive workload, long working hours or the breakdown of a working relationship can go unnoticed until too late. The question for employment/personal injury lawyers is when will an employer be liable for a psychiatric illness that is induced by workplace stress? The answer in legal terms is no different to the question of liability for any other injury: when the risk of injury, in this case a psychiatric illness, is foreseeable. Was it foreseeable that this particular employee would suffer a psychiatric illness and not just work-related stress?

SUTHERLAND v HATTON: THE 16 POINT PLAN

2. In Sutherland v Hatton 2002 IRLR 263 the Court of Appeal laid down guidelines as to how courts should deal with negligence claims made against employers by employees with psychiatric injuries.

3. The Court of Appeal stated that an employer will escape liability for an employee’s psychiatric injury unless it was reasonably foreseeable that the employee in question would suffer such an injury as a result of occupational stress. That of course is not a new principle.

4. The Court made it very clear that there are no occupations which are so intrinsically stressful that psychiatric injury is always reasonably foreseeable.

5. In the view of the Court the answer to the question of foreseeability will depend upon the relationship between the particular demands of a job and the particular characteristics of the employee concerned. Foreseeability is whether this kind of harm to this particular employee was reasonably foreseeable i.e. injury to health attributable to stress at work. The Court therefore set out and listed a number of factors which were relevant to the issue of foreseeability and these factors were split into two groups.

6. The first group related to the demands of the job and included the following considerations:- * The nature and extent of the work done by the employee; * Whether the employee’s workload is much greater than is normal for the kind of job which he or she performs; * Whether the employee’s work is particularly intellectually or emotionally demanding; * Whether demands being made of the employee are unreasonable when compared with the demands made of others in comparable jobs; * Whether there are signs that others doing the same job are suffering harmful levels of stress; * Whether there is an abnormal level of sickness absenteeism in the employees job or department.

7. The second group of factors reflected the view of the Court of Appeal that the most important question centres on what the employer knew, or ought reasonably to have known, about the circumstances of the individual employee in question. The Court stated that the following factors might be relevant: * Whether there are signs from the employee of impending harm to health; * Whether the employee has a particular problem or vulnerability; * Whether the employee has already suffered from illness attributable to stress at work; * Whether there have recently been frequent or prolonged absences that are uncharacteristic of the employee and whether there is reason to think that these are attributable to stress at work.

FACE VALUE

8. An employer will be entitled to assume that an employee can cope with the normal pressures of a job unless the employer knows of something specific about the job or the individual concerned that should make the employer consider the issue of psychiatric injury. The employer is not obliged to make intrusive enquiries and is generally entitled to take what he is told by his employees at face value.

DUTY TO TAKE REASONABLE STEPS

9. A duty to take steps only arises where signs that an employee might suffer psychiatric illness from stress at work are plain enough that any reasonable employer would realise that he should act.

10. The employer will only be in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.

11. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable (rather like the test for unfair dismissal); these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

12. An employer can only be reasonably expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (probably from a Consultant Psychiatrist or Occupational Health Consultant).

13. An employer who offers a confidential advice service including counselling or treatment is unlikely to be found in breach of duty except where he has been placing unreasonable demands on an individual where the risk of psychiatric injury was clear.

14. One step an employer is not obliged to take, even where that step would be the only reasonable and effective one available, is to demote or dismiss an employee in order to remove him or her from a stressful situation. In the view of the Court an employer will not be in breach of duty simply by allowing a willing employee to continue in his or her job.

Ian Mann – Employment Barrister http://www.employment-barrister-uk.com http://www.13kbw.co.uk13 King’s Bench Walk Ian Mann was called to the Bar in 2000. He practices in employment disputes representing both employers and employees. His employment practice embraces the full spectrum of Employment Tribunal, High Court and appellate work and covers all areas of employment law, especially discrimination.

Maternity Leave – Rights for Employees

By law, all pregnant employees are entitled to ordinary maternity leave of 26 weeks. Employees who worked for their employer continuously for at least 12 months are also entitled to an additional maternity leave. Employees may have additional leave rights under their contracts. Employees have the right to return to work at the end of their maternity leave. If refused, or otherwise treated unfavourably, they may also have additional claims for unfair dismissal and sex discrimination.

Prescribed procedure

To take maternity leave, you must follow a prescribed procedure. You will have to inform your employer of your pregnancy, the expected week of birth, the date on which you would like to start your maternity leave and, if you are absent from work for a pregnancy-related reason, the reason for your absence.

You cannot start your maternity leave before the beginning of the eleventh week before the expected week of birth, unless you gave birth earlier. You may start your leave before the notified date if you are absent from work for a pregnancy-related reason.

Maternity leave periods

By law, there are two maternity leave periods:

Ordinary maternity leave. This lasts for 26 weeks. You have the right to return to your old job at the end of your leave on terms and conditions no less favourable than would have applied if you had not been absent on leave, provided you give your employer at least 28 days’ notice. During your leave, you are entitled to your contractual benefits, except for remuneration. You are likely to be entitled to Statutory Maternity Pay (SMP).

Additional maternity leave. This is available if you have worked for your employer continuously for at least 26 weeks at the beginning of the 14th week before the expected week of birth. It starts at the end of the ordinary maternity leave and can last for up to an additional 26 weeks. Your contract of employment continues during the leave period and some contractual benefits and obligations remain in force. You have to give your employer at least 28 days’ notice if you want to return to work. You have the right to return to your old job or to similar job on no less favourable terms.

If you also have a right to take maternity leave under your contract, you may take advantage of only the more favourable of your rights.

Remedies

If your employer breaches any of your maternity rights, or otherwise treats you unfairly because you are pregnant, you are likely to have a sex discrimination claim. In addition, if you are not allowed to return to work at the end of your maternity leave, you will be treated as having been dismissed and may have a claim for automatic unfair dismissal. If you are made redundant whilst on leave, you may also have a claim for redundancy payment.

For unfair dismissal and sex discrimination, the most common remedy is compensation. Compensation for sex discrimination has no upper cap but will be limited to an amount which will put you, as far as possible, in the position you would have been in had you not been discriminated against.

Compensation for unfair dismissal is divided into a basic award and a compensatory award. The compensatory award depends on your actual losses and is capped. You have to take reasonable steps to minimise your losses, for example, to look for another job.

If your employer breached the terms of a contractual leave policy, you may also have claim for breach of contract.

Complaints

You should make your complaints at the employment tribunal which is local to where you work (or worked). Sex discrimination, unfair dismissal and breach of contract claims must normally be presented within 3 months of the effective date of termination. A claim for redundancy payment has to be made within 6 months of the relevant date. Only in truly exceptional circumstances, a tribunal may allow you to make a complaint out of time. You may, as an alternative, bring a breach of contract claim in the county or high court, within six years of the effective date of termination.

If you would like to find out more about the services that we provide, please visit our website mfg Solicitors Maternity Rights

mfg Solicitors Employment Law advice on all issues relating to your employment.

Employers Who Fail To Provide Meal and Rest Periods in California Beware

Recently the California Supreme Court rendered a decision in interpreting California Labor Code Section 226.7.

The issue was whether Labor Code section 226.7 provided for payment of one additional hour of pay when an employer failed to provide a meal break after five hours of work or a rest period after four hours of work and therefore it was pay and subject to a three year statute of limitations, meaning the employee could bring a claim three years after the fact, or if it was penalty and subject to a one year statute of limitations. In the case of Murphy v. Kenneth Cole Productions, Inc., the Supreme court addressed the issued.

In this case the Supreme Court summarized the facts as follows:

“John Paul Murphy worked as a store manager in a Kenneth Cole Productions (KCP) retail clothing store from June 2000 until June 19, 2002, during which he was paid a weekly salary. The store was open from 9:30 a.m. to 8:00 p.m., Monday through Saturday, and 11:00 a.m. to 6:00 p.m. on Sunday. On a typical day, Murphy and another employee arrived around 8:30 or 9:00 a.m. to open the store. Between 9:30 a.m. and 1:00 p.m., Murphy did nothing other than make sales, receive or transfer product, process markdowns and clean.”

“During a usual weekday afternoon, the second shift of either one or two people arrived at 1:00 p.m. The employee who had opened the store with Murphy would go to lunch, and Murphy and another employee would begin carrying merchandise into the stockroom while covering the sales floor. At some point, Murphy would go to the office to eat as he continued to work. By 2:00 p.m. he was either on the sales floor or working back in the stockroom. Murphy was scheduled to leave at 6:00 p.m., but he often would have customers on the sales floor, or would do some human resources paperwork.”

“Murphy’s duties when he worked the closing shift from noon until 8:00 p.m. were essentially the same as when he worked the opening shift. On most days, he was on the sales floor or in the stockroom from 12:30 to 4:30 p.m. At 4:30 p.m. he would try to eat lunch while he checked KCP company voice mail and e-mail in the office, and then worked on the sales floor until closing time. After the store was closed, Murphy and a sales associate would verify the bank deposit, clean up the store, put shoes away, vacuum and empty the garbage. Typically, they would finish cleaning around 8:45 or 9:00 p.m.”

“Murphy regularly worked 9- to 10-hour days, during which he was only able to take an uninterrupted, duty-free meal period approximately once every two weeks. He rarely, if ever, had the opportunity to take a rest period and, on occasion, was unable to go to the restroom.”

Plaintiff Murphy resigned on June 19, 2002 and then filed a wage claim with the Labor Commissioner.
About eight months later the Labor Commissioner conducted a hearing and issued a decision in Murphy’s favor and awarded unpaid overtime, interest, and waiting time penalties. KCP appealed it to Superior Court and plaintiff asserted claims for meal and rest period violations. The superior court permitted the additional claims.

The trial court awarded payment for missed meal and rest periods applying the three year statute of limitations under Code of Civil Procedure section 338. KCP appealed from the trail court judgment. The court of appeal held the statue of limitation is one year and that claims may not be raised for the first time on de novo appeal from an administrative hearing in front of the Labor Commissioner. The plaintiff appealed to California Supreme Court.

Overtime and rest period violations attorney Arnold Hernandez can be reached at San Diego Overtime Attorney Arnold Hernandez

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The Race of the Races

The rule is quite simple, equal employment opportunity is available to any person without regard to his racial orientation, or his genetic characteristic that may be associated with his race. Even marriage to or association with someone of a marginalized ethnicity cannot be a basis for unjustly discriminating an employee. The prohibition from discriminating against an employee because of race or perceived color covers not merely the hiring of employees but extends to promotion, compensation, job training, termination, or terms, privileges, and conditions of employment. Employment decisions on the basis of assumptions on abilities, and the performance of an individual based on the fact that the employee belongs to a particular ethnic or racial group is also abhorred.

With the advent of new legislations on the matter, even racial jokes such as ethnic slurs, derogatory comments, and other verbal or physical conduct that would in effect create a hostile and offensive working environment are already considered as forms of racial discrimination.

A deliberate attempt to segregate employees from other employees or from their own customers may be viewed as a breach of this particular proviso. Assigning minorities in areas which are considered as predominantly minority establishments is also construed as a form of racial discrimination since it in effect denies the ample opportunity for growth of an employee on the sole basis of his racial origin. It would also run counter to the laws of the land to exclude those belonging to a particular race to limit them to a particular position or in stereotypical designations.

Prohibition also extends to pre-employment requirements notwithstanding the fact that no employer-employee relationship presently exist. Requiring personal information which compels the disclosure of an applicant’s race presumes that this information would be used as a basis for making decisions on hiring the applicant, which in itself is already a form of racial discrimination.

Racial prejudice is against the law, despite of this, a colossal battle is still looming in the horizon before the status of equality on the issue of ethnicity can be achieved. It is one race that would require no winners, but only the sensitivity to afford respect, where such is due. All that is necessary is that the same rights afforded to those who consider themselves of higher class because they do not belong to a marginalized racial group are given to those who are coined as colored. If this simple requisite is answered, then equality is not far-fetched.

Our Los Angeles Accident Attorneys specialize in all fields of personal injury, business law, social security, and employment cases.

Rainier used to work in a publishing company as a writer and eventually became an associate editor. He dealt in writing instructional materials for secondary and tertiary students. His passion in writing inspired him to read a lot and subsequently enabled him to gain more knowledge and skills.