We all suffer with stress at some point in our lives, and particularly in our working lives.  From tight deadlines to understaffing, there are common workplace issues which cause periods of stress.  Most of the time these are temporary, but for some people stress can be debilitating to the point of causing serious psychiatric injury.  For others, a combination of stress and poor management can make their working environment intolerable. In these cases, there are claims which may be brought both under employment law, as well as personal injury claims in the civil courts.

Employment claims

All employers have an implied duty of trust and confidence which they owe to their employees.  This includes a duty to provide reasonable support, to provide reasonable and safe equipment, not to make the employee’s job impossible, to care for the employee’s health and safety, and a duty to afford redress of grievances, to name a few.  These duties may be breached where an employee is suffering with stress.  For example:

• Where stress is caused by understaffing or poor management, there may be a breach of the duty to provide reasonable support;

• Where the stress is caused by inappropriate equipment, the employer may have failed to provide reasonable and safe equipment or may be making the employee’s job impossible;

• Where the stress is caused by bullying, the employer may have failed to protect the employee from harassment, or failed to care for their health and safety; and

• The above issues may be compounded by a failure to deal with complaints when raised (a failure to afford redress of grievances).

These are just a few examples but in each case, there may be claims for breach of contract and, potentially, constructive unfair dismissal.  Often issues such as the above also come alongside issues such as being forced to work very long hours or not being allowed to take holidays which may also give rise to claims.

Disability discrimination

As if the above weren’t enough, what about people for whom ‘stress’ goes well beyond needing a long bath and glass of wine of an evening?  According to Mind, 1 in 4 people in the UK suffer with mental health problems such as anxiety and depression.  For such people, these conditions may amount to a disability, which requires their employer to make reasonable adjustments to their role to accommodate their disability.

Reasonable adjustments may include avoiding undue pressure being placed on the employee and alleviating stressful situations.  Where an employer has failed to do this, the employee may have a claim for disability discrimination and failure to make reasonable adjustments.  Such claims may be brought alone or alongside other claims in the employment tribunal.

Unlike most other claims in the tribunal, there is no cap on compensation which can be awarded in claims for discrimination.

Personal injury

For people who have developed a mental health condition or vulnerability, stress at work can result in exacerbation or aggravation of their mental health difficulties, leading to serious mental illness.  This can, in severe cases, be career ending.

In such cases, employees may have claims for psychiatric injury, either in addition to or separate from their claims in the employment tribunal.  In order to establish a claim for personal injury, an employee would need to show:

• The employer should have known or ought to have reasonably known that they were suffering from a mental disorder or vulnerability and fails to take the steps that are reasonable in the circumstances given the risk of injury;

• Their employer fails to take reasonable and effective steps contrary to their duty of care, bearing in mind their medical condition or vulnerability; and

• Their employer’s breach of duty causes or materially contributes to the harm (e.g. resulting in an exacerbation of their condition which causes them loss in particular lost earnings if they are no longer able to work).

Concurrent claims and forum shopping

Whilst there are differences between the claims, it is common that employees will have both employment claims and personal injury claims arising from the same circumstances.  In those cases, you could bring all of your claims in the employment tribunal or bring only your employment claims in the tribunal, bringing your personal injury claims in the civil courts, depending on what is best for the claim in question (this is often referred to as 'forum shopping').  There are advantages and disadvantages to both:

Pros of bringing all claims in the tribunal:

• Speed – the tribunal tends to have much shorter deadlines and often claims can be brought without a lengthy pre-action protocol process;

• Ease of self-representation – whilst we would caution against representing yourself in a personal injury claim (most litigants in person tend to vastly over or underestimate their claims), the employment tribunal is generally more ‘user friendly’ than the civil courts if you are acting without a solicitor;

• One set of proceedings – litigation can be stressful and many may find the prospect of dealing with all of their claims ‘in one go’ attractive; and

• No costs – in the employment tribunal there are no costs, meaning you don’t recover the costs even if you win.  This is often a disadvantage but may, if you have legal expenses insurance, be a benefit because all of your costs will be covered by insurance.

Pros of bringing personal injury claims in the civil courts:

• Formality – there tends to be more formality in the civil courts.  There is less focus on speed and more on getting the claim right, meaning your claims are likely to be examined more thoroughly and are less likely be undervalued, meaning you often get higher damages;

• Specialist judges – Judges in the employment tribunal, whilst obviously extremely intelligent, are often not experts in personal injury claims.  Having a specialist judge who is experienced in dealing with higher value claims may be an advantage;

• Costs – for anyone without legal expenses insurance, the costs of bringing claims in the employment tribunal can be prohibitive, especially as you’re not likely to get those costs back even if you win!  Claims for personal injury in the civil courts however are often funded on condition fee agreements (no win no fee), with the other side paying your costs if you’re successful, meaning you get to keep all of your damages instead of spending them on legal fees; and

• No disability required -psychiatric injury claims in the employment tribunal can only be brought where the injury results from discrimination, giving the additional hurdles of having to prove both that you have a disability and that you have been discriminated against.

Overall, the best forum for claims will depend on the case in question and your specific aims. At Allan Janes, we have significant expertise in both employment and personal injury claims and can help you to assess your claims and decide on the appropriate approach, whether that is bringing all claims in the employment tribunal, focusing your efforts on a personal injury claim in the civil courts or bringing both claims in the different forums.  We combine our expertise to achieve the best result for you.

If you think you have claims arising out of your employment, please call our Employment Solicitor, Charlotte Braham on 01494 893529 or Head of Personal Injury, Richard Harriman, on 0149 893563.