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Know your rights

Think twice before you blame your employer for stress at work. A recent ruling means the fault could be laid at your door, writes Susannah Kirkman

Stress is one of the main causes of workplace absenteeism. Figures from the TUC show a 12-fold increase between 2000 and 2001 in the number of staff making claims against employers over stress-related problems. The Association of Teachers and Lecturers reports an "alarming" surge in requests for help from its stressed-out members.

But a ruling by the Court of Appeal on claims by two secondary teachers will make it increasingly difficult for employees to win a case for stress-related damages.

Previously, the onus was on the employer to prevent stress at work and avoid claims of constructive dismissal or personal injury. But the court ruling says employees have a duty to take "reasonable care" of their own health and safety.

The premise is that an employer is entitled to assume employees can withstand the normal pressures of the job unless they are made aware of any problems. If you are returning to work after a stress-related illness, for instance, your employer will assume you are fit to do your job, unless you tell them otherwise. You should also make plain to your employer any detrimental effects of overwork or bullying on your health; otherwise there will be no evidence that your illness was "foreseeable" and that your employer should have acted to prevent it.

The ruling also says that, if the only solution to your illness is dismissal or demotion, your employer will not be held liable if you choose to continue in your job.

Under the new guidelines, to win a stress-related personal injury claim against an employer, the employee has to prove:

* The existence of a recognised psychiatric illness, such as clinical depression,using medical evidence. Symptoms of stress such as anxiety and sleeplessness will not be enough.

* The psychiatric illness has been caused or "materially contributed to" by a clear breach of the employer's duty of care to employees; employers have a legal duty to take reasonable care of the health and safety of their employees. The illness must also be the direct result of work and not caused by outside factors.

* The employer knew or ought reasonably to have foreseen the risk of injury.

* The employer has failed to take reasonable or adequate steps to reduce the risk of psychiatric harm to the employee.

But the guidelines do not let employers off the hook.The Court of Appeal says there are five key actions employers can take to reduce the risk of court action:

* Offer a confidential advice service with referral to appropriate counselling or treatment; an employer providing this service is unlikely to be found negligent.

* Be aware of the warning signs and take positive action.

* Take employees' complaints about stress seriously, and treat them sympathetically.

* Consider whether the employee has an excessive workload.

* Take "reasonable steps" to address a problem. A small school may be able to argue that its options and resources for "reasonable" action are limited. Employers must also bear in mind that an employee with a psychiatric illness is likely to be disabled, and the Disability Discrimination Act obliges them to make "reasonable adjustments" to enable such staff to continue working.

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