News
Stretching Stress
Holidays can be something of a source of addiction for many of us: at this time of year, the return to work can be a disconcerting experience - possibly even the cause of "vacation withdrawal".
At the moment it is not uncommon for many employees to describe themselves as "stressed" to return to their hectic workplaces. This term "stress" has become something of a buzz word in New Zealand's employment law over recent times. Employers are constantly reminded to guard against it in their workplaces. We know that proposed changes to the health and safety legislation will significantly increase the importance of eliminating stress in the workplace.
As flippant comments about the sources of stress may indicate, there appears to be some misunderstanding as to the type of "stress" that employers will be expected to address. The recent decision of the English County Court in Morgan v Staffordshire University (Unreported, 11 December 2001, Justice Lindsay) provides some helpful insight as to the type of arguments that employees might be tempted to make - and the possible reaction of an Employment Court in this country.
Ms Morgan had been employed as a member of the catering staff at a university. In an incident that was observed by a number of her colleagues, Ms Morgan had been assaulted by her female supervisor. The matter had been addressed as a workplace problem, but the employer had declined to dismiss the supervisor from employment. As a result, both women remained in their employment with the university.
Ms Morgan said that she was uncomfortable being around her supervisor, and asked to be redeployed to a different job which would allow her to avoid any contact with her. The university offered Ms Morgan a number of alternative jobs, but said that it could not guarantee that she would not again encounter her supervisor.
Ms Morgan said that the fact that the university was unable to offer her such a guarantee was the cause of great stress and anxiety for her. Ultimately, this stress caused her to resign from her job. Ms Morgan argued that she had been constructively dismissed from her employment.
Ms Morgan's arguments were brought under the English Disability Discrimination Act. That Act provides that an employer may not discriminate in employment on the basis of (amongst other things) "mental impairment". This provision is similar to one contained in our own Human Rights Act which prohibits discrimination on the basis of "intellectual or psychological disability or impairment".
Ms Morgan argued that, as a result of the assault, she had been mentally impaired in her ability to perform her work, and that her employer had failed to take adequate steps to address her disability.
At first blush, many readers may have a degree of sympathy for Ms Morgan. She was, after all, the victim of an assault, and was understandably concerned about an ongoing relationship with the wrongdoer. There was, however, no criticism made of the steps taken by the employer following the assault: we are left to conclude that the employer took appropriate action in the face of this unfortunate workplace incident. The real issue in this case was, instead, an allegation that the employer had failed to address issues of stress in its workplace which had arisen as a result of the assault.
The Court expressed considerable sympathy for the anxiety that Ms Morgan felt about returning to her workplace. It was, however, significantly influenced by the fact that none of her claims of stress had been supported by medical evidence. It made reference to the World Health Organisation's International Classification of Diseases, and considered the conditions which this document defined as stress disorders. It concluded that there was no evidence to suggest that Ms Morgan had suffered one of these conditions - nor did a lay consideration of her symptoms lead to a conclusion that she had suffered any type of enduring disability. On this basis, the Court had no difficulty in dismissing Ms Morgan's appeal.
This decision may provide some helpful insight to New Zealand employers about the way in which a Court here may impose liability for a failure to guard against workplace stress. It is unlikely that an employee will be able to hold his or her employer liable for causing "stress" unless it can be shown that the employee has suffered from a condition which is medically identifiable. It will not be enough for an employee simply to say that they are "stressed" by the circumstances of their workplace (or by the fact that they are unhappy about returning to work after the Christmas break!). It is likely that medical evidence will be required to support any such claim before liability will be imposed.
For now, employees would be well advised to cope with their return-to-work blues in their own way (and without looking to their employer). Perhaps a medicinal dose of gin and tonic would be the answer ?
