Tuesday, April 14, 2009

The Fairer Sex-What do we mean when we say we need more female justices?


Sandra Day O'Connor. Click image to expand.It's almost an article of faith among Supreme Court watchers that President Obama will fill the bench's next vacancy—and perhaps the one after that, too—with a woman. The current court's sole female member, Ruth Bader Ginsburg, has said she is "lonely" there, and even if she's not the next to step aside and another women joins her, that's still just two out of nine. Americans seem quite certain that isn't enough. Former Justice Sandra Day O'Connor, on learning in 2005 that John Roberts would take her place, declared him "good in every way, except he's not a woman." Americans concur. In a CNN/USA Today/Gallup poll taken just before Roberts was appointed, 80 percent of respondents said it was a good idea to replace O'Connor with a woman, and 13 percent said it was "essential." And with women claiming a large share of responsibility for Obama's victory over John McCain, the demand for a more gender-balanced court is stronger than ever.

Click to read full article

Thursday, April 2, 2009

Future developments expected in the area of tribunal claims, settlement and compromise in UK

Employers and employees will be encouraged to resolve disciplinary and grievance issues themselves, using a third party (for example a mediator or an arbitrator) to help resolve the problem, ending up in an employment tribunal as a very last resort. The revised Acas code of practice on disciplinary and grievance procedures will become even more important as failure to follow its provisions may lead to a 25 per cent reduction or increase in compensation.

Other changes under the Employment Act 2008

Other changes resulting from the Employment Act 2008 include:

   * technical matters relating to the appointment of the President of the Tribunals and lay members,
   * removing employment judges' discretion not to issue a default judgment in certain circumstances,
   * providing that, where electronic communications are used in hearings, and oral evidence is given, the public must be able to see and hear all parties to the communication,
   * clarifying provisions on the withdrawal and dismissal of proceedings,
   * automatic dismissal of proceedings where the parties to an Acas settlement have confirmed in writing their understanding that the proceedings covered by the settlement will be dismissed and the claimant has withdrawn the claim,
   * enabling an employment judge to review certain default judgments on his own initiative,
   * enabling an employment judge sitting alone to hear Stage 1 Equal Pay claims based on equal value.

Compromise Agreements


No major developments are expected in the area of compromise agreements. Any further changes are likely to occur on a piecemeal basis by way of case law.

Tribunal system

Further legislation governing tribunals generally (not just employment tribunals ) are already underway. Some aspects of The Tribunals, Courts and Enforcement Act 2007 come into force in April 2009 and some are already in force. Although the main provisions of the Act do not directly affect the employment tribunal system, the following changes may be of interest:

   * Unification of tribunals under a single organisation with a simplified structure of two tiers and the creation of the post of Senior President which will provide the tribunals judiciary with clear leadership and a single voice.
   * Creation of a hierarchy of two new tribunals, the First-tier Tribunal which will be a superior court of record and generally will have appellate functions, and the Upper Tribunal. The First Tier and Upper Tribunal system will start on 3 November 2008 for tribunals dealing with such matters as social entitlement, health, education and social care, taxation and land, property and housing. The new system does not directly concern employment tribunals and the Employment Appeal Tribunal (EAT)which will be separate from the First Tier and Upper Tribunal respectively although there will be close links between them.
   * Abolition of the current requirement for a tribunal award to be registered in the County Court (or High Court) if it has to be enforced.
   * Renamed employment tribunal chairmen employment judges.


Mediation


Other possible future developments in the courts and tribunal system generally may result from   EC Directive (2008/52/EC) on mediation in civil and commercial disputes. The Directive requires all Member States to simplify and improve access to justice by promoting mediation as a method of settling disputes. The Directive must be implemented by 21 May 2011. Radical changes resulting from the Directive are unlikely in UK employment matters for a number of reasons:

   * There is already an increasing emphasis on mediation in the UK which pre-dates the Directive.
   * The measures apply to cross border disputes (however, there is nothing to prevent a Member State choosing to apply provisions internally).
   * The Directive should apply in civil and commercial matters and not to 'rights and obligations on which the parties are not free to decide themselves under the relevant applicable law'. Such rights and obligations are particularly frequent in family law and employment law.

From CIPD Sources

Wednesday, April 1, 2009

Implications of Workplace Stress and Legal Remedies

 

This article appeared in the SL Bar Association Journal-March 2009

 

Work related stress is defined as 'the reaction people have to excessive demands of pressures, arising when people try to cope with tasks, responsibilities or other types of pressures connected with their jobs but find difficulty, strain or worry in doing so.'

'Not being able to cope' is a common denominator in other definitions of stress. It is important to note that stress is not confined to managers, it is also common among manual workers.

 

Here are some other definitions of work-related stress:

  • "job stress can be defined as the harmful physical and emotional responses that occur when the reqirements of the job do not match the capabilities, resources, or needs of the worker. Job stress can lead to poor health and even injury."

[Stress at work,
(United States National Institute of Occupational Safety and Health, Cincinnati, 1999.]

  • "the emotional, cognitive, behavioural and physiological reaction to aversive and noxious aspects of work, work environments and work organisations. It is a state characterised by high levels of arousal and distress and often by feelings of not coping."

[Guidance on work-related stress: Spice of life - or kiss of death,
European Commission, Directorate-General for Employment and Social Affairs]


 Signs and health consequences of stress


Stress causes complex changes in the body's chemical processes affecting the way people feel, think and behave. The immediate physical effects include a faster heart rate, a dry mouth and throat, butterflies in the stomach and excess perspiration. However, individuals react in different ways - some may hyperventilate, others may have headaches/migraine, muscle tension in their neck and shoulders, dizziness, blurred vision, skin rashes and allergies. Chronic stress can lead to physical and mental disorders.

Increases in colds and other infections as the immune system is weakened are early signs of stress. Other warnings could include backache and digestive illnesses. More serious conditions may follow such as ulcers, hypertension, angina and coronary heart disease.
Heart attacks and increased susceptibility to tumour growth can be the ultimate consequences.

Fatigue seems a common reaction which is also related to difficulty in sleeping and insomnia. Other problems include anxiety, panic, irritability, hostility and aggression, psychosomatic complaints, depression and even 'nervous breakdowns'. Dealing with everyday tasks becomes daunting and consumption of alcohol, tranquillisers or tobacco increases as people under stress try to 'cope'. In terms of work, the end result may be 'job burn out' - when a person has depleted energy reserves, is pessimistic and dissatisfied, and has a low resistance to illness.

 

Job Stress and Health:  What the Research Tells Us

Cardiovascular Disease
Many studies suggest that psychologically demanding jobs that allow employees little control over the work process increase the risk of cardiovascular disease.

Musculoskeletal Disorders
On the basis of research by National Institute of Occupational Health and Safety-USA and many other organizations, it is widely believed that job stress increases the risk for development of back and upper- extremity musculoskeletal disorders.

Psychological Disorders
Several studies suggest that differences in rates of mental health problems (such as depression and burnout) for various occupations are due partly to differences in job stress levels. (Economic and lifestyle differences between occupations may also contribute to some of these problems.)

Workplace Injury
Although more study is needed, there is a growing concern that stressful working conditions interfere with safe work practices and set the stage for injuries at work.

Suicide, Cancer, Ulcers, and Impaired Immune Function
Some studies suggest a relationship between stressful working conditions and these health problems. However, more research is needed before firm conclusions can be drawn.

-Encyclopedia of Occupational Safety and Health

 

Sources of stress

Organisation culture and management style can be a source of stress. Poor  communications and indifferent leadership also create anxiety. Lack of competence causes stress too. This may arise from poor selection practices at the time of recruitment, promotion or transfer. It may arise because people have been inadequately trained for the new job. Social and economic events outside the employment relationship cause stress and need to be considered.

An important and often overlooked cause of stress is the failure of individuals to take responsibility for self-management of their learning and development and their consequent loss of confidence and inability to do the job. This also results in anxiety over their employability.

Stress  is also defined as as 'the adverse reaction people have to excessive  pressure or other types of demand placed upon them'.  Of course a certain level of pressure in a business  environment is desirable. Pressure helps to motivate  people and will boost their energy and productivity  levels but, when the pressure individuals are under  exceeds their ability to cope, it becomes a negative   rather than a positive force – in other words, stress.

 

Stress creates physical changes linked closely to our  flight or fight reflex. Adrenaline, noradrenaline and  cortisol are among 40 hormones produced by the  body when stressed.

 

Stress in itself is not a medical condition but research  shows that prolonged exposure to stress is linked  to psychological conditions such as anxiety and  depression as well as physical effects such as heart  disease, back pain and headaches.

The Cost of Financial Stress

The headlines of the day remind us of economic troubles across the land: Global Markets Plunge on U.S. Recession Fears, Millions Trapped Below Poverty Line, Housing Crisis Heats Up—Thousands Face Foreclosure, Credit Card Debt Hits All-Time High, Fuel Prices Soar and so on. Politicians solicit votes with promises of relief, the Federal Reserve cuts the interest rate again, and probes of predatory lending are launched.

Meanwhile, millions who struggle beneath the weight of financial burdens press on with their lives, many living paycheck to paycheck and cutting corners to keep food on the table. The tremendous strain of financial worries breaches the bonds of marriage and tears families apart, costs billions each year in lost workplace productivity and billions more in medical costs. It leads to headaches, high blood pressure, serious cardiac problems and a range of other medical problems.

Many who are buried in credit card and other debt give up and file for bankruptcy, ignore the bill collectors or simply walk away, but the majority of people suffer silently, enduring a relentless buildup of stress that saps their energy, motivation and quality of life, weakening their immune system and eroding their spirit.

"Thirty million workers – one in four – are suffering serious financial distress. … A large proportion of those who are financially distressed, 40% to 50%, report that their health is negatively impacted by their financial worries and problems."

—From the 2005 Report, "Financial Distress Among American Workers"

A recent Reuter reported stated that  A paralegal, recently laid off, wanted to get back at the "establishment" that he felt was to blame for his lost job. So when he craved an expensive new tie, he went out and stole one.

The story, relayed by psychiatrist Timothy Fong at the UCLA Neuropsychiatric Institute and Hospital, is an example of the rash behaviors exhibited by more Americans as a recession undermines a lifestyle built on spending.

In the coming months, mental health experts expect a rise in theft, depression, drug use, anxiety and even violence as consumers confront a harsh new reality and must live within diminished means.

"People start seeing their economic situation change, and it stimulates a sort of survival panic," said Gaetano Vaccaro, deputy clinical director of Moonview Sanctuary, which treats patients for emotional and behavioral disorders.

"When we are in a survival panic, we are prone to really extreme behaviors."

Because stress is so widespread, it has a very high cost for individuals, companies and organizations, and for society.

For the individual, in addition to the devastating impact of the serious health impairments referred to above, the loss of capacity to cope with working and social situations can lead to less success at work, including loss of career opportunities and even employment. It can give rise to greater strain in family relationships and with friends. It may even ultimately result in depression, death or suicide.

For the company or organization, the costs of stress take many forms. These include absenteeism, higher medical costs and staff turnover, with the associated cost of recruiting and training new workers. It has also been shown in recent years that stress takes a heavy toll in terms of reduced productivity and efficiency.

The following are some estimates which related to the cost of work-related stress:

  • in the United Kingdom, it has been suggested that over 40 million working days are lost each year due to stress-related disorders;
     
  • in Australia, the Federal Assistant Minister for Industrial relations estimated the cost of occupational stress to be around A$30 million in 1994;
     
  • in the United States, over half of the 550 million working days lost each year due to absenteeism are stress-related.
     

These figures are cited in Research on work-related stress,
European Agency for Safety and Health at Work, 2000.

 

 

Workplace Stress and Legal redress

In 1960, a Michigan court upheld a compensation claim by an automotive assemblyline worker who had difficulty keeping up with the pressures of the production line. To avoid falling behind, he tried to work on several assemblies at the same time and often got parts mixed up. As a result, he was subjected to repeated criticism from the foreman. Eventually he suffered a psychological breakdown.

By 1995, nearly one-half of the States allowed worker compensation claims for emotional disorders and disability due to stress on the job [note, however, that courts are reluctant to uphold claims for what can be considered ordinary working conditions or just hard work].

Constructive dismissal

 

In many decided cases in the UK we observe that employees who were affected have filed action against the employers for work related stress as a result of constructive dismissal. The advantage of this approach is that they only have to prove that their

employer was in breach of contract and do not have  to prove that their treatment by their employer led to  them suffering a psychiatric injury.

 

In order to succeed in a claim for constructive  dismissal certain key elements have to be established as ruled in the  2003 case of France v Westminster City Council

(EAT/214/03):

 

  • There must be a breach of contract by the  employer.

 

  • The breach must be sufficiently serious to justify the  employee's resignation.

 

  • The employee must resign in response to the  breach.

 

  • The employee must not delay too long before  resigning or he or she may be judged to have  affirmed the contract.

 

 

For the purposes of claiming constructive dismissal for work-related stress, it is a breach of implied terms such as the duty to provide a safe place of work and the duty of mutual trust and confidence which are most likely to be used.

 

In Courtaulds Northern Tiles Limited v Andrew ([1979] IRLR 84) it was held that a term is implied into every contract of employment that the employer will not, without reasonable or proper cause, conduct itself in a manner calculated or likely to destroy the relationship of trust between the employer and the employee.

 

However, psychiatric injury caused by the manner of  an employee's dismissal rather than conduct prior to  dismissal cannot be compensated for in damages in  common law.

 

Disability discrimination

 

Disability  discrimination legislation is another way through which employees could approach this issue. Under  The Disability Discrimination  Act 2005 of UK, which came into force in December 2005 the definition for a mental disability is now the same as that for a physical disability under section 1(1) of the DDA 1995: 'a physical or mental impairment which has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities'. This change means that it is arguably easier for people suffering from stress to claim they are covered under the DDA.

 

Employees who wish to seek redress through this will be required to meet significant tests to prove  disability discrimination.

 

The case of Clark v TDG Limited Novacold ([1999] IRLR  318, CA) established certain  key questions that must  be answered before discrimination can be proved. Which are as follows:

 

  • Is the employee disabled?

 

  • Is the employee being treated less favourably for a  reason related to that disability?

 

  • Are there reasonable adjustments necessary to  accommodate the employee?  

 

  • Is the proposed course of action in relation to the  employee capable of being justified?

 

 

Work-related stress claims under common law

 

The most serious cases of work-related stress that lead  to psychiatric injury are likely to be prosecuted under  the common law. Claims arising out of work-related  stress under common law are prosecuted under the  tort of negligence.

 

Employers' duties under common law were identified  by the House of Lords in the case of Wilsons & Clyde  Coal Co Ltd v English ([1938] AC 57 2 AER 628). In  this case it was accepted that employers have a duty  under common law to take reasonable care to provide  and maintain:

 

  • A safe place of work

 

  • Safe appliances and equipment and plant for doing the work

 

  • A safe system for doing the work  

 

  • Competent and safety-conscious personnel.

 

 

In practice it is seen that the courts rarely  make a distinction between the principles of tort and  contract because there is little difference in how they  apply .

 

Employers were first alerted that they could be liable  for negligence for failing to identify and manage work-related stress by the case of Johnstone v Bloomsbury

Health Authority in 1991 ([1992] QB 333 (CA)). In this case Johnstone, a junior medical officer, sued the authority for causing his mental breakdown as a result of excessive working hours. The case was ultimately settled out of court but was a clear indication that  stress-related illness could result in personal injury claims under the common law of negligence.

 

Four years later in the landmark case of Walker v Northumberland County Council in 1995 ([1995] IRLR 35), Walker was awarded damages of £175,000 after the council was found in 'breach of its duty of care in failing to take reasonable steps to avoid exposing the employee to a health endangering workload'.

 

In this case Walker, a social worker, had to deal with a steadily increasing workload during the 1980s and in 1986 he had a nervous breakdown. Walker's psychiatrist advised him that his breakdown had been caused by pressure at work and that he should not return to the same level of responsibility as before. He returned to work in 1987 after being told he would be assisted by another social worker. However, this support did not materialise and he had a further breakdown and was diagnosed as suffering from stress-related anxiety. In February 1988 he was dismissed by the council on the grounds of permanent ill-health and subsequently sued the council for damages, arguing it had been in breach of its duty of care as his employer in failing to take reasonable steps to avoid exposing him to a health-endangering workload.

 

The changing legal perspective on stress-related personal injury claims was also underlined by the February 2007 case of Daw v Intel Corporation ([2007]

EWCA Civ 70) where Daw was awarded £134,000 in damages after a breakdown from work-related stress resulted in her suffering depression, despite the company having a counselling service – one of Hale LJ's key propositions in Hatton. Daw had made

numerous complaints to management about her workload prior to her breakdown. Pill LJ, noting Lord Walker's comments in Barber that 'every case will depend on its own facts', said that the presence of a counselling service was not a panacea 'by which

employers can discharge their duty of care in all cases'. This case underlines that the principles regarding work-related stress personal injury claims are still evolving.

Daw's counsel, Roderick Moore, told Solicitors Journal (8 February 2007) following the decision: 'My feeling is that courts are lowering the bar for employees.'

 

Low morale, health and job complaints, and employee turnover often provide the first signs of job stress. But sometimes there are no clues, especially if employees are fearful of losing their jobs. Lack of obvious or widespread signs is not a good reason to dismiss concerns about job stress or minimize the importance of a prevention program.