Stress in the Workplace

David: Hello, and welcome to the Morton Fraser MacRoberts Employment Podcast. I'm David Hossack, and I'm delighted to be joined by my colleague Jenny Dickson. Now, Jenny, you're not in employment. You're the Chair of Morton Fraser MacRoberts. Tell us a bit more about you.

Jenny: Thank you very much, David, and thank you for welcoming me to the Morton Fraser MacRoberts podcast this morning.

David: It's not the first time.

Jenny: It is not the first time. I'm very glad to be returning. And you're right, I am not an employment lawyer, so you may wonder why I am here speaking on an employment podcast. My area of specialty is personal injury law, which often crosses over with employment law as well. So, I'm here to talk today about stress cases.

David: It's a scenario that we see an interplay between employment law and personal injury law, so it's very useful to look at that and get a sense of what's important here. I think the sense I have these days is that mental health is very much in the media, and is it that it's more in the media or is there more of a rise in terms of mental health scenarios arising in the workplace?

Jenny: There is an increase in scenarios in the workplace, David. I think it's not just that it is covered by the media, but there is actually an increase in these types of illnesses. We can see that from various pieces of research. So, the CIPD carried out some research last year.

David: So you are an employment expert if you're referring to the CIPD, Jenny.

Jenny: I just knew I needed to speak your language on this employment law podcast. So yes, and as you'll all know, the CIPD research is very useful into all sorts of topics. And on the topic of stress, they reported last year that over a quarter of Scottish workers, so that would be almost seven hundred thousand people, feel that work negatively affects their mental health.

Over half always or sometimes are under excessive pressure at work. Two thirds feel exhausted at work, either all of the time or some of the time. Nearly half say their workloads are too high, and they find it hard to relax in their personal time because of work. So taking all of that together, it really does point to a workforce that's under pressure, with many people, in fact, at tipping point.

David: When you refer to these figures, Jenny, is that a half of a quarter?

Jenny: No, that is a half of the workforce.

David: A quarter feel that it negatively affects their mental health, but a half of the workforce feel under pressure.

Jenny: That's right, David, yes. So it's really substantial numbers, and it's not only the CIPD who have found that.

There are statistics as well from the Health and Safety Executive that cover Scotland, and they show that about 2 million days per year are lost to workplace stress, depression, and anxiety.

David: And the HSE is your language.

Jenny: That is much more my language, yes. We often handle cases where the HSE are involved, and they are, of course, the regulator in this field, and so they have a considerable amount of knowledge and resource that they can use to assist employers to improve safety in the workplace.

David: And I think the HSE figures are not just a snapshot, but it's a dynamic process where year on year they're looking at these things.

Jenny: Absolutely. That's right, David. The figure I gave there of the 2 million days, that's from about two years ago, but when they look at it, for nearly two decades, their annual statistics have consistently listed work-related stress as one of the main causes of both short and long-term sickness absence.

So this is a real and a growing issue.

David: So do you think we're actually seeing more claims for work-related stress as opposed to more work-related stress as such?

Jenny: It's difficult to say because we don't have specific statistics from, for example, the court that set out exactly what types of personal injury cases are before the courts in Scotland.

But from an anecdotal perspective, I would suggest that it is likely that we are seeing more claims for work-related stress. Here at MF Mac, we've certainly got employer clients who are coming to us with more of these types of cases.

David: Why do you think that's the case?

Jenny: Well, there could be many reasons for it. We've just looked at those statistics, so there is obviously an increase in these types of illnesses, and that may result in an increase in claims. There's also a greater understanding of mental health. I think you mentioned at the beginning there, David, that you quite often see it discussed in the media.

It's more common to talk about mental health issues, and that probably means that we are not only seeing a greater number of individuals diagnosed with mental health conditions, but we have a much better understanding of the causes of it and the fact that it could be work-related.

David: My sense is that it's a much more open dialogue these days than perhaps in the days pre-COVID, where it wasn't talked about in the same way, and there was perhaps more of a pejorative sense when the question of mental health was raised, but now it's part of the language.

Jenny: Yes, that's right, and I think it's part of the language within the workplace as well as within the media, and you're more likely to be having discussions between employees and employers about stress and about the impact of their workloads on them. There might also be other reasons, though, why we are seeing more cases or certainly more claims coming across lawyers' desks.

These cases can be quite difficult. It can be hard to establish liability, and it can be difficult for employers to assess if they have a claim intimated to them, whether or not they are likely to be responsible for it. And so we often are consulted to answer that question. And the cases themselves, if a case is to be successful, it's often very valuable.

 Individuals who suffer from workplace-related stress may well not be able to work in the future, and so the losses that they sustain are considerable. So there's a whole host of reasons why we might be seeing more of these cases.

David: And what we're speaking about here is very much civil law claims as opposed to employment law claims.

Jenny: Yes, that's right. And it might be interesting actually to find out a little bit more about how many employment law claims there are. But here, yes, we are considering civil law claims, so individuals who are alleging that their employer has been negligent and as a result of that, they are suffering from a work-related illness.

David: So the question that comes to mind is the question of insurance, because in, in many employment cases, there isn't insurance to cover any sums that are due as a result of that action. When you're looking at civil claim Is this something that's covered by insurance?

Jenny: It ordinarily would be, yes. Employers obviously have a legal duty to hold that insurance.

David: That's employer's liability insurance.

Jenny: Absolutely. I would say, though, the other type of case that we see that is increasing are scenarios where there either isn't insurance because of an error on the part of the employer in failing to take out adequate cover, or where the insurer is suggesting, for whatever reason, that there is no cover available for a certain claim, and that's where you need to look in detail at the policy itself.

But in general terms, yes, these cases ought to be covered by employer's liability insurance.

David: And that's distinct from an employment case where it might be optional to have that sort of insurance in place.

Jenny: That's right, David, yes.

David: So if we can think a little bit more about these types of cases, how is liability established?

Jenny: Well, that can be difficult, and it's very fact specific. If you consider it first in very general terms, employers are responsible for the health, safety, and the welfare of their workers. That concept is very well established. So when would they be negligent? Well, the court would look at what was reasonably foreseeable.

So in this instance, you're thinking, could the employer have known that the particular employee was going to suffer psychiatric harm? If you look at reasonable foreseeability, we often end up looking at the facts of the interaction with the individual employee. So employers are generally entitled to assume that employees can withstand the normal pressures of the job in the absence of any evidence to the contrary.

It can become a little bit more nuanced, though, if the employee has raised an issue with their employer and that employer has then not done sufficient to address those issues.

David: Can you maybe put this in the context of an example, Jenny?

Jenny: Yes. So let's think about a team. Let's imagine we have a team who are very busy and they all consistently work overtime.

Well, that's okay. Many people work overtime with no adverse consequences. But if one team member says they're struggling with the overtime and they need to take some time off work to recover, then that should be a red flag to the employer. But let's say, for example, they take that time off work and when they return, the employer simply assumes that the break from work will have assisted them and the issue will have resolved, so the employer does nothing.

The old working pattern resumes with all of the requirement for overtime. The individual employee still cannot cope and he becomes much more seriously ill. As that individual had raised it with their employer previously, it was foreseeable that they would suffer ill health as a result. So that's a scenario where there were some red flags to the employer and they could, from the point of those red flags onwards, have foreseen that that employee was likely to suffer from workplace stress.

David: So it's not a case of the employer saying, "I see no ships there." If there's something on the horizon, they have to note that and that may have a real bearing on whether they're liable.

Jenny: That's right. It needs to be foreseeable and it needs to be foreseeable that that employee might suffer from a condition that is otherwise preventable.

David: So that's establishing liability. If that's been done and it's established that the employer's negligent, does that automatically follow that the employee would get compensation?

Jenny: Not automatically, but establishing liability gets the employee over the first hurdle, if I can put it like that. The second hurdle would be causation.

So the employee would then need to establish that the illness that they are suffering from was caused by the workplace stress and by their employer's negligence. This can also be very fact-based and can be quite tricky. There are often multiple causes of psychiatric illness. So for example, one individual might be suffering from anxiety and depression, and it may be partly caused by the workplace stress, but also caused by another underlying condition, or by circumstances at home, or by financial pressures.

It can be quite difficult to separate out the competing causes. But in many cases, a psychiatrist will say that any one of those factors had a more than material contribution towards the illness. But you would need expert evidence from a psychiatrist to consider what the actual condition is that the individual's suffering from and what the cause of it is.

David: So what about the value of these claims?

Jenny: Well, quite often they are very substantial. The employee would be entitled to compensation for the illness itself, so that's pain and suffering for the psychiatric condition. But if that condition prevents them from working, then they would also be entitled to recover loss of earnings and loss of pension, and that loss of earnings may run some way into the future as well.

And from that perspective, you can probably quite easily see just how valuable these sorts of cases can be. Of course, we have mentioned insurance previously, and there ought to be a policy in place, and if the policy does cover the situation, then it would be the insurers who would be paying that compensation rather than the employer themselves.

David: And one of the things that we need to think about, although I don't think we've got time to look at that today, is sometimes there can be an interplay between civil claims, sort of claims that you've described, and employment claims, where there's perhaps a double counting of damages and a lot of care needs to be taken in terms of working out what's done in these circumstances, but that's for another day.

Jenny: I look forward to an invite back.

David: So standing all of this, you've raised the question of insurance. What steps do you think an employer can take to minimize the risks?

Jenny: Thank you. Well, yes, there's always a number of steps the employers can take. So if we look at it from a health and safety perspective at the outset, the most important thing is always to risk assess.

And when doing that, an employer should bear in mind that it's the each individual employee they need to consider when risk assessing. It's not sufficient to say that working practice is suitable for most of your staff. It has to be suitable for all and each and every one of your staff. It's possible that in a lot of these situations, a referral to occupational health would assist.

So if you have an employee who is clearly struggling and who has highlighted issues of work-related stress, then it may be appropriate to refer them to occupational health. Now, that can assist from a number of perspectives. Obviously, they can help the individual themselves and hopefully enable them to manage the workload stress and to avoid becoming ill.

It can also help the employer as well, though, because it may well be that occupational health can identify steps which the employer can take which are likely to have a positive impact.

David: So in terms of instructing occupational health, you ought to be asking these sort of questions. What might we do to minimize the prospect of this happening to assist the employee?

Jenny: Yes, absolutely. And that can also assist with defending a claim if one is made in the future. Because if occupational health come back and say, "Well, there is actually nothing you can do here, this illness is not preventable," then there are no steps which the employer ought to have taken, so they cannot be found negligent for failing to take those steps.

David: Conversely, I've seen in the past scenarios where occupational health have suggested that certain steps are taken and the employer doesn't take those steps. Not helpful.

Jenny: Absolutely. Not helpful at all. So pay attention to whatever reports come back from occupational health and ensure that any recommendations are fully considered and implemented.

Another thing that's helpful, and it sounds like a very lawyer-like thing to say-

David: Surely not ...

Jenny: Surely. Keep records. It's important to have a record of what is said at any meeting. It can be quite common to find that recollections vary, and that's recollections of how the employer and the employee considered that a certain situation was going to be managed.

So records of meetings can be really useful. We've also discussed previously suitable insurance cover. Now, there's a legal obligation to have employers' liability insurance, but useful to check that the terms of your insurance cover are appropriate. For example, does it refer to the right number of employees?

Or if you've had any changes within the organization, does it cover all of the activities that the employees are undertaking?

David: Yeah. So for example, if we opened another office and forgot to put it on cover or something like that .

Jenny: Yes, exactly that. And in the situation where there is a claim, we would always recommend to employers that they notify their insurer as soon as possible, because usually within a policy, there is a requirement to notify within a certain period of time, and that period can be quite brief.

David: And often that can be done without actually making a claim, just making them aware of the fact that there might be a claim, what's known as a circumstance.

Jenny: Yes. That's right, David. So there's no prejudice to the employer in notifying the insurer of that circumstance. But there is a benefit because it means that the cover will kick in.

And in that situation where there is a claim, we would always recommend to employers that they take great care over their own investigations. The factual background will need to be established. Employers, more often than not, are very keen to see what they can do to resolve it and to support their staff.

But they need to be quite careful that they don't have, for example, one person who's been heavily involved in the support of the individual employee being the one who goes around and carries out that investigation, because they may prejudice the evidence of those other individuals.

David: So planning that investigative process is quite important.

Jenny: Yes, it is, to ensure that you maintain the integrity of the investigation and that you don't prejudice any of the evidence that might be required in the future before the court for the claim itself.

David: Now, Jenny, we're sitting at a table here which... doesn't have a crystal ball in it, but if we did have a crystal ball, what do you predict in terms of what's gonna happen with these sort of claims in the future?

Jenny: I'd love to have a crystal ball, and if we were gazing into it in relation to work-related stress, I would suspect that it would say that we haven't yet reached the peak. I think these claims are likely to increase in the future, and that is for the very sad reason that I think these types of illnesses will continue to increase in the future.

So I do think that this is an area that we will see more and more cases. There are also stricter duties of care on employers that have come in under the Employment Rights Act 2025. And so it may be that from that, with employers being required to do more to manage, for example, burnout and mental health conditions, that there is then an increased chance that employers are likely to be found negligent for failing to do that.

And that will make claimants more likely to raise court actions. So I do think, sadly, we are likely to see more of these types of cases.

David: I think from what you're saying, there needs to be a change in culture almost to try and avoid this, but that's a subject for another podcast perhaps.

Jenny: Yes, completely.

David:  But that's a matter that's very close to your heart.

Jenny: It is, and culture in the workplace is very important, and responsible employers, of course, will always want to be careful to ensure that they are supporting their workforce and are avoiding these sorts of situations arising in the first place.

David: So thank you so much, Jenny, for joining the podcast. I'm hoping you will come back and join us again.

Jenny: I look forward to it, yes.

David: And in the meantime, Jenny, you mentioned the Employment Rights Act. There's plenty of information about that on podcasts, and if you don't already subscribe to our employment email update, please let us know by emailing us at employment@mfmac.com, and we'll get you added to that list.

So thank you again, Jenny.

Jenny: Thank you, David.

David: And please remember to subscribe to podcasts and leave reviews in the usual way.