The strain drain

Over the past year, it has seldom been possible to read a newspaper without tripping over some reference to "stress in the workplace". A now-famous social worker in Northumberland, John Walker, sued his employers for causing him to suffer a second nervous breakdown as a result of pressure at work, and won.

But the avalanche of sensational press reports has created as much confusion as clarity. So what was the background to the case and where do things stand at present?

The court found that Walker's first nervous breakdown was not foreseeable and hence Northumberland County Council was not liable for it. The mistake his employer made, however, was to allow Walker to resume work in the over-burdened job he had held previously. The additional resources the employer had promised never materialised.

The court ruled that it was foreseeable that Walker would suffer further damage to his mental health as a result. As his employer had failed to respond reasonably - which is what the law requires - it was ordered to pay damages.

Unreasonable conditions

Now consider what would happen if one of your middle managers suffered a nervous breakdown and alleged it was caused by his work.

The employee must prove the breakdown was foreseeable and occurred as a result of the unreasonable conditions endured at work. A psychiatrist will need to conclude that, more likely than not, the illness was caused by work. Also helpful will be corroboration from the spouse that work had been getting on top of the employee for some time and that he or she is now not the same person as before.

As well as the employee's own assertions, it is important to have the support of a colleague who confirms that, no matter how hard the employee worked, he or she could not get through everything because there was simply too much to do, and that management were told but did not listen.

Walker convinced the court his breakdown was foreseeable because he wrote and told his employers so. His memos made plain to management that he could not cope. His first nervous breakdown was ample demonstration that this was so, and put management on notice that his health would be in jeopardy if he was subjected to similar pressure again.

In the face of such accusations, what evidence would your organisation need to defend itself? The evidence needs to come from a host of witnesses: the individual's boss ("he never told me he could not cope"); the people in his team ("he was busy, but a hopeless delegator"); the person who replaced him while he was off sick ("once I organised the job, I coped quite easily"); friends who knew him outside work ("he was worried about the negative equity trap and this strained relations with his spendthrift wife"); the personnel officer; and a psychiatrist. Half the workforce could be involved - imagine the effect on office morale.

Also, a stress claim will require countless documents to be exposed and dissected. As well as personnel records, you might have to unearth production schedules, staffing levels, board minutes, health and safety minutes, appraisal documents, disciplinary hearing notes, confidential notes held by the works nurse or a counsellor involved in an employee assistance programme, and sickness records. Internal memos from employees to management are pertinent, as are general communications from management to workforce.

Resources to make changes

As ever, the moral of the tale is that prevention is preferable to cure. Stress claims are generally defensible, providing that management has anticipated the issue and built it into its record system. Management also needs the resources to make changes when problems are highlighted. The difference between success and failure in management terms can be very little.

Stress claims fall within an organisation's employer's liability insurance policy. Managers need to report potential claims promptly when an employee suffers a nervous breakdown and they believe it could be connected with work.

A peculiar feature of stress is the way it affects individuals differently. Top executives might seem to be prime candidates for stress-related illnesses, but instead they often appear to thrive on challenge and enjoy high remuneration in return. Rather, stress can occur among secretaries and line managers who are bombarded from all sides, but get neither recognition nor rewards to compensate.

Basically, work-related stress is about communication. Knowing what is going on and planning is half the battle.

Kevin McLoughlin is a partner in the insurance group of Dibb Lupton Broomhead, one of the UK's largest legal firms, tel: 0345 262728.