Enforcing the Law

In  WRS compensation cases it is far better to make employers take action before matters become so serious that a recourse to the law is seen to be the only option.

As part of their risk assessment employers should check sickness records.  If there is any evidence that any employees have had time off as a result of WRS  then they must urgently assess that risk and take appropriate action.  If they do not, then the risk assessment is not 'full and sufficient' as required by law.

Union Health and Safety Representatives have a legal right to report contraventions of Heath and Safety Law to the Health and Safety Executive without fear of negative repercussions from their employer.  They have a whole range of other options, such as 'referral forms' before this becomes necessary.

The headquarters of the union involved will give them further advice and will take on 'serious' cases.

Medical causation

In WRS compensation cases it is fundamental to the personal injury claim that there is an injury. Just 'stress' is not enough.  The courts look for evidence of a clinically recognisable 'psychiatric' condition such as clinical depression. You should discuss carefully and thoroughly what is written on your 'line' by your GP in regard of your diagnosed condition.

Proving that the injury has been caused by work rather than personal circumstances is also difficult, which is why anyone suffering from stress should follow all the advice about meaningfully communicating with their employer as soon as they become aware of the serious nature of the WRS they are encountering.

Questions a court would be concerned with:

• Is the workload much more than is normal for the job concerned?

• Is the work particularly intellectually or emotionally demanding for this employee?

• Are demands being made of this employee unreasonable when compared with the demands on others in the same or comparable jobs?

• Are their signs that others doing the same job are suffering harmful levels of WRS?

• Is there an abnormal level of sickness, absenteeism, job turnover or resignations in the same job category throughout the establishment?

• What is the magnitude of the risk of harm occurring and the gravity of the harm if it does occur?

• What are the costs and practicability of preventing such harm and the justification for running the risk?

A good 'Local Authority' and school 'Stress Policy' produced through a thorough consultation with all the relevant interested groups (teaching unions, non-teaching staff, etc.) should make the seeking of redress through the law unnecessary in the first place.

Health and Safety Executive Guidance on WRS

May 1995 - The Health Safety Executive (HSE) published guidance on stress at work.  Stress is recognised as a workplace hazard that is both predictable and preventable.

June 2001 - The HSE published important guidance on the management of stress, called 'Tackling Work-related Stress: A Manager's Guide to Improving and Maintaining Employee Health and Wellbeing'.

This document sets out explicitly the incidence of WRS as well as the duties of employers to risk assess stress and act on their findings.  The costs (legal, ethical and economic) of failing to act are highlighted.

The Reporting of Injuries, Diseases and Dangerous Occurrences (RIDDOR) .

Stress is not reportable at all, not even as an over 3 day injury, because it is a mental state.

Shock on the other hand is reportable because it is a physical condition.

Shock is suffered from an incident (eg: physical attack, emotional shock from witnessing an incident etc) and could be reportable.  This can be called post traumatic shock / stress.  As long as the injury (time loss) relates to an actual event the incident may be reportable.

Disability Discrimination Act 1995 New

Discrimination under the Disability Discrimination Act 1995  (DDA) involves treating a person, or judging him or her, in an unjust and unfair way. Disabled people have rights under the DDA which make it unlawful for employers, providers of goods, facilities and services to discriminate against them.

Mental Health problems covered by the DDA
Depression illnesses, phobias, obsessive compulsive disorder (sometimes called bipolar disorder), eating disorders, ME, etc. Your GP will be able to advise you on your eligibility.

Substantial and long term illness
To be covered by the DDA  the condition must be affecting the person in more than small or minor ways. These significant affects could include:

• Problems concentrating and remembering things.

• Difficulties in understanding.

• Having to speak very slowly.

• Having regular panic attacks.

• Finding it hard to think clearly.

• Being very excitable.

• Feeling agitated.

• Unable to leave your house.

To have a long-term effect, the illness must have lasted or be expected to last for at least 12 months or for the rest of your life. A GP or consultant can give clear advise on this.

Medication
If medication is controlling the condition then the DDA views the situation as being that the individual is effectively not on medication, so that such a person is still considered as being disabled.

Recovery from disability
The DDA's definition of disability still applies to a person who has recovered. This is of particular importance when an employer or prospective employer becomes aware of a past history of disability in an employee / prospective employee.

Discriminatory behaviour
Three different kinds of discrimination are recognised by the legislation:

• Direct discrimination - e.g. An employer who sacks you because you have been ill or a doctor who is rude to you because of your illness.

• Not making a reasonable adjustment - e.g. An employer who fails to make a reasonable adjustment to help remove a substantial disadvantage that is being experienced as a result of the illness.

• Victimisation - e.g. Victimising people who complain about discrimination, whether or not the complainant is disabled.

It will be necessary to show that:

• The person has been treated less favourably than someone else.

• This treatment relates to the fact that the person has been or is mentally ill.

• The treatment cannot be justified.

Employers
People must not be treated less favourably than someone else because they are, or have been, mentally ill, unless the employer can justify the apparent discrimination because there is a strong and important reason for it. Such a reason must be both material and substantial to the particular case.

If it is possible to make a reasonable adjustment and the employer doesn't do so, then this will be discrimination. Examples could be:

• Allowing for time off for treatment or rehabilitation.

• Providing training.

• Providing more supervision.

• Changing procedures for testing or assessment.

• Moving the person to a different place of work.

If the adjustments are not reasonable to the employer because of expense, disruption or impracticability, then they may not have to make them.

Discrimination in employment
The areas of employment which are involved include:

• Terms and conditions of service.

• Induction.

• promotion/transfer/training/benefits.

• Occupational pensions.

• Dismissal and disciplinary procedures.

• Job selection.

People with mental health problems often feel discriminated against when applying for a job. The kinds of questions asked on the application form can be an unfair barrier as can the interview process itself.

All details of a person's mental health history must be given at interview or on an application form if asked for.

Becoming ill at work
The employer must make reasonable adjustments to help. These could include:

• Allocating some of the duties to someone else.

• Moving the person to another department or project.

• Altering the person's working hours.

• Providing the person with supervision.

Discrimination in the provision of goods or services
It is unlawful for someone to offer a lower standard of service:

• Not being attended to promptly.

• Being treated rudely or less politely.

This could be an area of special significance to teachers who are going through the Early Retirement procedures with the SPPA and their contractor.  It could possibly apply with Incapacity Benefit procedures or dismissal proceedings with Local Authorities. A person may be able to go to a Sherriff Court themselves if the claim against a service provider is less than £3,000. A 6 month time limit is in place to start the proceedings.

 Most categories of employees are covered by the DDA, but volunteers are not. 

A persons right to take action against discrimination
If a person feels discriminated against by their employer then they can in the first instance contact their professional association / union. They could also:

• Go to an Employment Tribunal with the complaint.

• Go to the Citizens Advice Bureaux. They may be able to supply representation at Employment Tribunals.

• Contact Legal Services Agencies in Glasgow or Edinburgh for free advice and representation.

• Contact the Scottish Employment Rights Network.

• Contact your local Law Centre.

• Contact a lawyer with experience in mental health work.

• Contact an organisation which specialises in Mental Health issues.

Other details
Proceedings should be started within 3 months of the discriminatory treatment. This time limit could be extended. if the tribunal thinks it is fair to do so. The Compensation could be for loss of job opportunity, loss of earnings or injury to feelings. There is no limit to the amount of compensation that can be awarded. ACAS can provide a free service which could make attendance at a tribunal unnecessary if conciliation is agreed to. Legal Aid may be available if you are on income support.

Reference: No.9. 'Discrimination - Know Your Rights'  Scottish Association for Mental Health. 1999.