To the dismay and despair of many employers, it is not uncommon for an employment dispute thought to be done and dusted to raise its head later on in a completely different forum. By Roddy Macleod is a Partner at national law firm Weightmans.

Since the introduction of fees in the Employment Tribunal we have seen an increasing trend in employment-type claims being brought in the civil Courts, either by litigants seeking ‘another bite of the cherry’ or by first-timers bypassing the ET system altogether and trying out an alternative route to recompense. Both situations can push employment lawyers and HR professionals well outside their comfort zones. Employment-based claims brought in the civil Courts broadly fall into two categories. The first, known as ‘stress claims’ concern ‘over-worked’ employees resulting in mental or physical injury and are brought as common law negligence claims. The second category involves employees who feel harassed and thus make use of the Protection from Harassment Act 1997 (PHA) in addition to a claim for negligence. 

When making a claim, the claimant must establish ‘causation’, making a link between the workplace stress and the injury alleged. In practice however, most stress claims turn on whether the type of injury sustained by the employee (often a psychiatric injury such as adjustment disorders or depression) was reasonably ‘foreseeable’ by the employer, which can be difficult to prove. A Court will carefully consider signs such as: complaints relating to workload; whether management was aware that an employee was working very long hours; concerns about a decline in work standards; employee requests for training or support that weren’t actioned. The indication of impending harm to health from stress must be plain enough for any reasonable employer to realise they should do something about it.  To establish liability it must be found that the employer knew or ought to have known the employee was developing a psychiatric injury.

Many successful stress claims arise in the context of an employee’s return to work from a stress-related absence. Previous absence due to stress places the employer on notice that the employee was at risk. It is therefore critical that the employee’s return to work is managed and any recommendations by medical advisors are complied with. The PHA, first introduced to protect the public from stalkers, widens the scope for employees to make a claim.  There are many reasons why an employee might choose a claim under the PHA rather than a common law negligence action: the PHA carries a limitation period of 6 years (as opposed to 3 years under a negligence action) and the claimant doesn’t need to demonstrate that injury was reasonably foreseeable. Additionally, there’s no need to establish a recognised psychiatric injury; injury to feelings is enough.

A discrimination claim must normally be submitted to an Employment Tribunal ‘before the end of the period of three months starting with the date of the act to which the complaint relates’. An employee who has ‘missed the boat’ in respect of ET limitation may have no option but to resort to the civil courts. The lack of a precise definition of harassment within the PHA combined with an abundance of conflicting case law around it means it is often down to the solicitor’s skillset to identify the conduct which could be regarded as ‘oppressive’ and ‘unacceptable’ and thus crossing the threshold. Although the civil setting and the framing of an action as a personal injury claim may be relatively unfamiliar, the strategies employed in the successful defence of a stress at work claim will in many ways be second nature to employment lawyers.

Like any employment action, defending a stress claim involves close consideration of the work place policies and procedures and how robustly they’ve been applied. As in any case involving disciplinary action or an allegation of discrimination, early and thorough investigation is highly important. In a negligence context where injury must be proven, heavier emphasis is placed on a claimant’s medical history. Additional documentation such as GP notes, hospital records and counselling records are invaluable in defending a personal injury action. The introduction of ‘qualified one way costs shifting’ (QOCS) in the civil courts means that if a Claimant loses his personal injury case then the employer often cannot recover its costs from the Claimant. This reduction in financial risk has led to an increase in civil claims, despite reports of workplace stress remaining relatively static in recent years. Given speculation that all employment claims may, in the not so distant future, be brought under the same roof in a combined forum for workplace disputes, it has never been more important for employment lawyers to get to grips with civil claims and to pro-actively advise clients of this growing area of risk.