Law of Health and Safety at Work - Essay Example

?Law of Health and Safety at Work Introduction In order to advice Mathews in respect of his rights against the corporate firm for the psychiatric injuries sustained by him, the issues to be considered are enumerated in the sequel. First, whether commercial law firm is in breach of any rights awarded to employees by the employment law. Second, whether the psychological injury suffered by Mathews can be the basis of a claim for stress related injury at work. Third, whether the company is criminally liable for the losses suffered by Mathews due to having worked continuously for extended periods. According to the provisions of the common law, employers are required to safeguard the physical and psychological health of their employees. They are also required to provide a safe system of work, safe means of access, plant and equipment, and fellow employees. Furthermore, employees have to be protected from unnecessary risk of injury (Mcilroy, 2000). This duty of care is an implied obligation in a contract of employment. It had been the extant practice to permit employees to claim compensation from their employers if they were injured at the workplace, due to the negligence of the latter. The courts have commenced to grant compensation for psychological injuries caused by employers. In order to succeed in a claim for psychiatric injury, the applicant has to establish genuine psychological damage; presence of a causal link between the psychiatric injury and his employment; and that the psychiatric injury had been foreseeable by the employer (Mcilroy, 2000). Moreover, the applicant must submit expert opinion to establish psychiatric illness, in order to claim compensation. Stress in employment, gradually erodes the health of employees, and reduces self-esteem, confidence, and other abilities. Such employees are less likely to claim compensation from their employers (Mcilroy, 2000). In Brown v Glasgow Corporation, the court ruled that the employer was had to ensure that no physical injury occurred to the employees (Mcilroy, 2000). Employment Rights Since Mathews is working in the law firm under a contract of employment, he is eligible for the protection of his employment rights, as awarded by the Employment Rights Act 1996. Mathews’ contract of employment required him to work for 40 hours a week. The Employment Protection Act 1975 (Employment Protection Act (c. 71), 1975) provides rights related to time off, and these have been included in the Employment Rights Act 1996 (Employment Rights Act (c. 18), 1996). A few of these rights provide employees with paid time off and the other rights allow employees to avail themselves of unpaid time off. Specifically, section 50(4) of the Employment Rights Act 1996, requires the duration of time off and pertinent factors to be of a reasonable nature. This was clearly discernible in the Employment Appellate Tribunal’s decision in Borders Regional Council v Maule, wherein the former stressed that there was to be a balance between the needs of the employer and the rights of the employee (Borders Regional Council v Maule, 1993). Health and Safety at Work It is to be examined, whether the corporate law firm, is in breach of the provisions of the Health and Safety at Work etc. Act of 1974. In instances involving work related stress an employee can initiate legal action against his employer in the County Court or High Court, or apply to an Employment Tribunal. The first ruling regarding negligence arose in Walker v Northumberland County Council. In this case, it was held that it was reasonable to foresee risk of psychiatric injury, if the concerned employee had already undergone a nervous breakdown. All the same, this was not to be construed to imply that an employer could continue to subject an employee to excessive stress, until the latter suffered a stress related injury. In Garratt v London Borough of Camden, the Court of Appeal opined that a significant proportion of the population underwent nervous breakdowns and depression, and that quite a few of these individuals were likely to attribute this to stress at the workplace. It further stated that in the absence of a real danger of nervous breakdown, which the employer should have reasonably foreseen, no liability would be attached to the employer. In Sutherland v Hatton, Hatton, a teacher, developed depression. Her situation was worsened due to personal problems, which resulted in her absence from work for protracted periods. The Court of Appeal ruled that her absence could not have been anticipated on the basis of her workload. In this case, the Court of Appeal, discussed two measures that an employer could be expected to implement, while addressing potential psychiatric injury among the employees. First, the employer, if desirous of circumventing liability, should implement a stress management policy. In addition such employers should not make undue demands on their employees, if there was a perceptible risk of psychiatric injury. Second, an employer was not required to demote or dismiss an employee, in order to distance them from a stressful situation. In addition, the Appellate Court held that it was incumbent upon the employee, who had suffered psychiatric injury, to establish that such injury was the outcome of the employer’s breach of duty of care (Matthews, 2007). Due to stress, Beverley Lancaster was subjected to severe stress, which resulted in psychiatric injury. Her claim of personal injury based on stress was recognised and her former employer, Birmingham City Council was directed to pay her ?67,000 as damages (Birmingham City Council v Beverley Lancaster , 1999). In another case, a manager of a Scunthorpe post office became indisposed, subsequent to a business review, which served to increase his workload. He developed depression and resorted to early retirement. His employers realised that they would have to pay heavy damages, and arrived at an out of court settlement ?175,000 (Illness, sickness and accidents/ stress/ recent cases, 2005). Another case, in which the Court of Appeal quashed the claim of the appellant, was that of Barber v Somerset County Council. In this case, Barber was an overworked teacher who developed depression on account of his excessive workload. His claim failed, as he had failed to intimate his medical condition to his employer. However, this decision was set aside by the House of Lords, which ruled that employers were duty bound to scrutinise their employees, in order to detect symptoms of stress in them and to adopt the necessary interventions to alleviate it. Barber was awarded ?101, 000 by the House of Lords. In Hartman v South Essex Mental Health and Community Care NHS Trust etc the Court of Appeal opined that liability for stress induced psychiatric injury at work was akin to liability for physical injury. All the same, employer liability arises, only when the employer commits a breach of duty that results in stress related psychiatric injury. In Borders Regional Council v Maule, the EAT provided the clarification that the tribunal had to ensure a balance between employee rights and employer’s requirements (Borders Regional Council v Maule, 1993). As such, every employer has to make adequate safety and health provisions at the workplace (Lewis and Thornbory, 2010, p. 108). In Johnstone v Bloomsbury Health Authority, a doctor successfully claimed damages against his employer, for failing to provide the necessary safety measures at the work place. The employment law states that no employee can be made to work for more than 48 hours a week. However, they can agree to work for longer periods, provided they consent to do so, in writing (Overtime). In our problem, Mathews had not signed any other document regarding working for additional hours. This is breach of the overtime regulations. Mathews has to adopt the following course of action, in order to get his grievance redressed. First, he has to inform his employer about the excessive stress being experienced by him in the workplace. If this fails, he has to prefer an appeal with the Employment Tribunal, regarding the breach of his employment rights at the workplace (Problems at Work?, 2009). Mathews took 4 months leave due to his sickness. His employer may pay him statutory sick pay up to 28 weeks, in case he had been sick continuously for 4 days and his weekly earnings had been more than ?97 (Statutory Sick Pay - telling your employer you are sick and providing evidence). Employee Consultation The provisions of the Information and Consultation of Employees Regulations 2004, stipulate that if the number of employees are 50 or more, then certain minimum rights are to be provided to the employees. In accordance with these minimum rights, the employer has to involve the employees in consultations regarding workplace problems (The Information and Consultation of Employees Regulations (c.24), 2004). In our case, Mathews had complained about his illness to his manager, and requested the latter to resolve the problem. The immediate superior of Mathews did not attach much importance to his words. As a result, Mathews suffered a nervous breakdown, which left him ill for 4 months. This clearly indicates the negligent attitude of the employer, regarding the health and safety at the workplace of the employees. In accordance with the court’s decision in Bank of Montreal v Dominion Gresham, employers owe a duty towards each and every employee (Bank of Montreal v Dominion Gresham, 1930). Now, Mathews had complained to his employer, regarding his doctor’s advice to curtail his working hours. However, the employer adopted a negligent attitude to what was conveyed by Mathews. In addition, Mathews was asked to work long hours, since there was no other employee to share his work. As per the decision in Bank of Montreal v Dominion Gresham, the employer has breached his duty of care towards Mathews, by not making any attempt to resolve his problem. Mathews’ physician had issued a sick note, wherein Mathews was diagnosed with anxiety and depression. He was advised to reduce his working hours and to avail himself of a leave of absence of 2 weeks. Mathews submitted this sick note to his manager. However, the manager failed to take any measures, in respect of the sick note and the advice given by Mathews’ physician. The outcome was Mathews’ nervous breakdown, which renders the employer liable for breach of the Health and Safety at Work, etc. Act 1974. Protection from Harassment Act The Protection from Harassment Act 1997 provides some options for potential claimants, who are being subjected to stress at the workplace. This understanding stemmed from the House of Lords decision in Majrowski v Guy’s and St. Thomas’s NHS Trust. It was held that employees could employ the Protection from Harassment Act 1997, in order to claim damages from their employers, in the context of workplace harassment. Similarly, in Green v DB Group Services (UK) Ltd, the High Court ruled that employers would be held liable for bullying that resulted in psychiatric injury. Such liability would be determined under the Protection from Harassment Act 1997 and the common law. Moreover, Section 3 of the Protection from Harassment Act 1997, imposes criminal liability for breach of civil injunction. In our problem, if the employer infringes court orders, in respect of harassment of employees, then criminal liability will be imposed upon him. Conclusion As per the above discussion, Mathews can sue his employer successfully, in respect of the psychiatric injuries caused to him, and the resultant losses sustained by him. He can do so under the provisions of the employment law. He can claim under the Employment Rights Act, Protection from Harassment Act 1997, Information and Consultation of Employees Regulations 2004, The Protection from Harassment Act 1997, Health and Safety at Work etc. Act of 1974. As such, Mathews can successfully claim damages for psychiatric injuries from his employer. References Brown v Glasgow Corporation, SC 527 (1922). Bank of Montreal v Dominion Gresham, AC 6591 (1930). Health and Safety at Work etc. Act (c. 37). (1974). Crown copyright. Employment Protection Act (c. 71). (1975). Crown copyright. Johnstone v Bloomsbury Health Authority , 2 All ER 293 (1991). Borders Regional Council v Maule, IRLR 199 (1993). Employment Rights Act (c. 18). (1996). Crown copyright. Protection from Harassment Act (c.40). (1997). Crown copyright. Birmingham City Council v Beverley Lancaster (July 5 , 1999). Sutherland v Hatton , EWCA Civ 76 (Court of Appeal 2002). Barber v Somerset County Council, UKHL 13 (House of Lords 2004). The Information and Consultation of Employees Regulations (c.24). (2004, December 21). Crown copyright. Hartman v South Essex Mental Health and Community Care NHS Trust , IRLR 293 (England and Wales Court of Appeal 2005). Illness, sickness and accidents/ stress/ recent cases. (2005, February). Retrieved February 9, 2011, from emplaw: http://www.emplaw.co.uk/lawguide?startpage=data/25jul99.htm Majrowski v Guy’s and St. Thomas’s NHS Trust, ICR 1199 (House of Lords 2006). Problems at Work? (2009, February). Retrieved February 10, 2011, from acas Department for Business Innovation & Skills: http://www.bis.gov.uk/files/file50732.pdf Lewis, J., & Thornbory, G. (2010). Employment Law and Occupational Health: A Practical Handbook. John Wiley and Sons. Matthews, P. (2007). Stress At Work: The Legal Implications. Retrieved February 10, 2011, from The Society of Stress Managers: http://www.manageyourstress.co.uk/worklegal.php Mcilroy, R. (2000, January 12). When the pace takes its toll. The Herald (Glasgow), p. 14. Overtime. (n.d.). Retrieved February 10, 2011, from Directgov: http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10028439 Statutory Sick Pay - telling your employer you are sick and providing evidence. (n.d.). Retrieved February 10, 2011, from DirectGov: http://www.direct.gov.uk/en/MoneyTaxAndBenefits/BenefitsTaxCreditsAndOtherSupport/Illorinjured/DG_175850 Walker v Northumberland County Council, (1995) IRLR 35. Read More