Employment Law Case Update - April 2015
Burnetts' employment law solicitors look at the latest case law updates.
Stress at Work
Although not strictly speaking an employment matter, we are often asked whether employers can be liable for and sued for psychiatric illness caused by something which has happened at work. The case of Easton v B&Q Plc, which was recently heard in the High Court, reminds us of how difficult it is for employees to successfully bring such a claim.
Mr Easton was a high performing manager for B&Q. However, he became ill after he perceived the pressures of his role to be increasing. He alleged that his ill health had arisen either due to negligence on the part of B&Q and/or because they had breached their statutory duty of care towards him. In particular, Mr Easton argued that B&Q had failed him because they had not conducted a risk assessment in relation to the stresses that he was facing in his role.
Mr Easton was away from work for about five months during which time he received treatment for his depression. He returned to work on a phased basis at a store nearer his home address and which was less busy than the store he had managed before he became ill. However, he suffered a relapse and was signed off again. He never returned to work. Instead he started a personal injury claim against B&Q.
To succeed with his claim, Mr Easton needed to be able to persuade the Court that the psychiatric injury that Mr Easton had suffered had been reasonably foreseeable by B&Q.
According to the trial Judge an employer has no general obligation to make “searching or intrusive enquiries” and may take at face value what an employee says. On the facts of the case Mr Easton's claim, he could not show that his initial absence in May 2010 was foreseeable by B&Q. Mr Easton had a long managerial career in charge of large retail outlets prior to that with no suggestion of psychiatric history. The trial judge stressed that employers are entitled to assume, unless there are clear indications to the contrary, that an employee is able to cope with the “normal pressures” of a particular role. Hints, jokes and/or sarcastic comments weren’t found to be enough of an indication to the contrary. The Judge felt that Mr Easton had not done enough to give B&Q knowledge of the issues that he was facing.
Mr Easton suffered his relapse, B&Q clearly knew that he had suffered a psychiatric illness and the judge held that their consideration should have been different. But the fact that Mr Easton was still taking medication did not mean that his return to work needed to be handled in any particular way and/or that a relapse was therefore foreseeable. The judge specifically noted that many people take medication for psychiatric conditions but remain in work.
It was also noted that employees who returns to work after a period of sickness without qualification are usually implying that they believe themselves to be fit to return to the work that they were doing before the period of ill health. The Judge felt that, if that wasn’t the case, the onus was on the employee, in personal injury cases, to speak up.
Although the Judge felt that risk assessments were a useful tool, B&Q had a policy for how it would deal with stress, inviting individuals to identify and notify them of any symptoms. The trial Judge was of the opinion that Mr Easton had made insufficient efforts to do this and therefore concluded that, on the facts of the particular case, a wider risk assessment would have had no effect on the outcome.
This decision may be based largely on its facts and focused on the personal injury aspects rather than any disability discrimination issues. However, it is useful for both employers and employees to be aware that the standard of proof required in personal injury claims for work related psychiatric injury is very high. Employers do have a duty to keep an eye on things but if policies and procedures are in place which suggest that the onus is on the employee to come forward with any concerns then, as in this case, the employer may escape liability for personal injury. Disability discrimination concerns are different but any employers with questions about this should contact Natalie Ruane at Burnetts Solicitors on 01228 552222.
Holiday Pay - the Saga Continues
The “commission” case of Lock v British Gas took another step forward recently.
Mr Lock was a salesman working form British Gas on fixed hours with a basic salary whose income was supplemented by commission paid on the sales that he made in any given month. Mr Lock brought a claim for 'lost' pay when his wages went down substantially after he took leave in December 2011 and January 2012. As he hadn’t made any sales during that period, his pay in the subsequent months really suffered.
However the UK rules on holiday pay at that time stated that employees with normal working hours should have their holiday pay calculated by reference to their pay for those normal working hours.
The European Court of Justice (“the ECJ”) was asked to decide whether those UK rules were compatible with the European legislation in this area. The ECJ indicated that they were not and decided that commission payments should be included when calculations for holiday pay were being made in circumstances where commission formed a regular and substantial part of an employee’s normal earnings.
The most recent stage of this case saw the Employment Tribunal consider whether the UK rules could be interpreted in a way which would comply with the ECJ ruling. The Employment Tribunal decided that it couldn’t but that the Working Time Regulations 1998 could effectively be amended to clarify that “a worker with normal working hours whose remuneration includes commission or similar payment shall be deemed to have remuneration which varies with the amount of work."
This means that, if they haven’t been doing so already, employers who pay commission to supplement a baseline salary would be wise to include average commission earned when calculating holiday pay going forward. However, It is also worth noting that some of the key points which employers need to look out for (the reference period and how to quantify what the claim might be worth) are still to be decided. We will keep you posted!
About the author
Natalie leads the Employment Law & HR team and specialises in education.
Published: Wednesday 22nd April 2015