Duty of Care and Employer Liability - Essay Example

Critically evaluate, in relation to the common law duty of care, the liability of employers for psychiatric illnesses suffered by employees and arising as the result of employees being made to work under stressful conditions: Business corporations are instituted for the primary purpose of economic gain. Often, as the pressure to show impressive profits in each financial quarter increases, it is the workforce who are put under undue stress. Ranging from unreasonably high productivity standards, to sub-standard and hazardous work environments, workers face several potential risks to their mental and physical health. The paradox lies in the fact that an unhealthy and burnt-out workforce is less productive than that which is relaxed and contented. But despite this, work-related stress continues to be a nagging problem facing business leaders and workers alike. With the profit motive being paramount for business leaders, their policies and decisions should be regulated by law. The common law duty of care provisions were designed toward this end, namely to hold employers liable for psychiatric illnesses suffered by employees, and for especially those illnesses arising as a result of employees being made to work under stressful conditions. (Vincent, 2009, p.45) The rest of this essay will critically evaluate this law and its effectiveness. A recent case of failure in duty of care that got media coverage is the accidental death of a Northumberland man, whose employers were found guilty of not following rudimentary safety principles required by law. The circumstances of this tragic incident might be unique to the shipping industry; but the lessons learned from it is applicable to all workplaces that pose threats to safety of workers. For example, as the Grampian Police and the Health and Safety Executive rightly identified, the incident is symptomatic of much wider failure, namely, the lackadaisical attitude of top management to “exercise a reasonable duty of care by failing to apply the most basic of safety principles while working under hazardous conditions. Further, management procedures or safety tools in place to ensure safe working were either not applied or were applied ineffectively, to the extent that no one recognised the risks involved" (Daniel, 2010, p.20) While it is true that dependant family members of the victim could opt to pursue legal action against the employers. But what monetary compensation that they would ultimately get would not substitute for the lost health of the affected worker. A number of common law statutes mandate duty of care requirements on part of employers. The Health and Safety at Work Act 1974 was the first comprehensive set of duty of care requirements. Following this, the Management of Health and Safety at Work Regulations were enacted in 1999, to ensure that employers perform risk assessment in the work environment and take preventative actions to reduce worker stress and injury. Other key legislations related to preventing work-related stress are: “Disability Discrimination Act 1995 - stress may turn out to be the sign of an underlying condition that would amount to a disability. Under the Act, employers are required to make reasonable adjustments to the workplace, such as reducing the employee’s workload or pressures on an employee who is under stress. Discrimination legislation - if someone is being treated unfairly by, say, a line manager who treats female staff in an overbearing and dominating way, they may be able to argue that such behaviour amounts to sex discrimination” (www.thompsons.law.co.uk, 2010) Previously, duty of care provisions would pertain to physical injury to workers. But these days, the mental well-being of workers is also taken into account, as the “recent appeal court ruling that four police officers involved in the Hillsborough disaster were entitled to compensation for post traumatic stress disorder” shows. (Management Services, 1997, p.7) This verdict “has highlighted the duty of care employers owe their staff and could have an impact on future claims; and it underlines the responsibilities employers must take for the well-being of their workforce, mental as well as physical. Employers have been made to face the reality that workplace stress is a health and safety issue for which they are potentially liable. Employers should take a proactive approach to managing workplace stress in order to avoid costly settlements.” (Management Services, 1997, p.7) In modern Britain, conventional blue collar jobs have reduced due to automation and computerization of business processes. The simultaneous shift toward a knowledge-based economy has made the workforce a predominantly white-collar group. The private sector tends to breach duty of care requirements more than public sector organizations. But today, workers from all sectors of employment continue to face stress in the workplace, albeit in their own ways. A most disappointing case of failure in duty of care within the public sector is with respect to British soldiers participating in the War on Terror. Numerous military personnel of various ranks have perished in the war and thousands more are suffering severe mental stress. The protracted and chaotic military operations in Iraq and Afghanistan has been a point of debate the last few years, especially with increased costs for the exchequer and no victory in sight. This situation instigated Tory leader Cameron White to criticize former Prime Minister Gordon Browns government thus: "They failed to plan, they failed to act, they failed to prepare and theyve failed in their duty of care," (Cecil, 2010, p.8). In addition to dealing with hostility from enemy combatants, British troops are prone to getting bullied by those higher up the chain of command. According to the “Commons Defence Committees investigation into the functioning of Armed Forces, there is insufficient awareness of duty of care policy throughout the entire chain of command. For far too long, duty of care has not received the attention it deserves. The Army, in particular, now needs to grasp the nettle of their duty of care.” (Cordon & Gammell, 2005, p.16 ) The laws applicable in United Kingdom are generally noted to be comprehensive; and the region is known to be very safe in terms of worker safety and worker care. Yet, there have always been systemic failures to prevent worker stress. Some leeway can be given to account for the fact that corporate laws have not been redesigned to fit the knowledge-based economy of the UK. Many duty of care laws existing today were first drafted during the industrial age, when manufacturing of goods was the mainstay of the economy. But as the Information Technology revolution happened toward the end of the last century, and as sedentary, desk-based jobs became the norm, unexpected lifestyle changes were imposed on the workforce. Business leaders have not apparently foreseen the health consequences of such lifestyles; or even if they had, did not take the issue seriously. (Murphy & Cooper, 2000) What public awareness exists today about breaches in duty of care agreements, have come out as the result of litigations from affected employees. Law suits arising out of managements callous attitude toward employee care are more numerous in the private sector compared to the public sector (the case of British troops in Iraq and Afghanistan is an exception to this rule). This is because of the steep competition in a free-market capitalist system. Under this system, the profit motive often overrules peoples interests (including that of employees). One could say that the Corporate Social Responsibility movement witnessed in the last decade is a reaction to the distorted priorities within the capitalist economy. As employees are part of the society too, the concept of duty of care can be seen as the precursor to CSR movement. Hence, two foremost imperatives at the moment are amendments to existing laws to reflect the new knowledge economy and renewed vigour on part of employers in adhering to duty of care laws. (Wan, 2007) References Nicholas Cecil, Brown Has Failed in Duty of Care to Our Soldiers, Claims Cameron. (2010, March 10). The Evening Standard (London, England), p. 8. GAVIN CORDON and CAROLINE GAMMELL, Clamp Down on Bullying; Armed Forces Failing in Duty of Care. (2005, March 15). Daily Post (Liverpool, England), p. 16. Brian Daniel, Death Blamed on a Lack of Basic Safety; Report Slams Failures in Duty of Care. (2010, January 21). The Journal (Newcastle, England), p. 20. Fenton, J. W., Kelley, D. E., Ruud, W. N., & Bulloch, J. A. (1997). Employer Legal Liability for Employee Workplace Violence. SAM Advanced Management Journal, 62(4), 44+. Hillsborough Stress Ruling Emphasises Employers duty of Care. (1997, February). Management Services, 41, 7. Murphy, L. R., & Cooper, C. L. (2000). Healthy and Productive Work: An International Perspective. London: Taylor & Francis. Vincent, A. (2009, Summer). Death in the Work Place. Management Services, 53, 45+. Wan, K. W. (2007). Csi: Death on Site. Perspectives in Public Health, 127(6), 254+. Summary of the law on STRESS AT WORK, retrieved from on 24th November, 2010 Read More