When it comes to stress in the workplace it is easy for employers to feel like they are walking a tightrope. A single misstep from a tightrope walker will result in a fall disproportionate to their mistake; likewise, a single error from an employer when dealing with mental health can result in seemingly disproportionate litigation.
This is exemplified by the recent payout of over £360,000 from BAE Systems to their former employee Marion Konczak. Following claims of bullying and harassment, Ms Konczak was told by her manager, Mr Dent, that ‘women take things more emotionally than men, [who] tend to forget things and move on.’ This single, clumsy comment – ‘the Dent Comment’ – was to catalyse a decade-long legal battle.
As a result of the remark, Ms Konczak was signed off with work-related stress. Upon being dismissed, she began proceedings against BAE and, despite rejecting numerous other claims, the Employment Tribunal found that the Dent Comment constituted sex discrimination. Eventually, Ms Konczak was awarded over £360,000 as it was ruled that the comment had precipitated her mental illness, from which she did not suffer before. BAE was thus considered wholly liable for the losses arising from Ms Konczak’s illness.
On appeal, BAE argued that this was unjust. There had been other causal factors in Ms Konczak’s illness, they claimed, and they suggested that the Tribunal should have apportioned liability. In the Court of Appeal this was rejected, and it was held that apportionment is only relevant where the injury is ‘divisible’, e.g. where the employee had an underlying illness which the employer had aggravated. This must be examined on a case-by-case basis, and for Ms Konczak it was not possible to apportion liability as she had not been suffering mental illness prior to the Dent Comment.
The payout to Ms Konczak will keep employers up at night. A throwaway comment from a manager, misguided rather than malevolent, cost BAE upwards of £360,000 – and that’s before considering their legal costs. What can employers do to mitigate such payouts? This is especially pressing given that mental health issues are often not evident until they have manifested and, by then, it may be too late.
Well, we can help: on the 3rd of October 2017 we offer a day-long masterclass on managing stress in the workplace. We recognise that ambiguity is part and parcel in combatting stress – but we embrace this fact rather than ignoring it. Through working with our lawyers, HR professionals, health and safety consultants and occupational health professionals, LAW will guide you through both theories and case studies to provide you with the framework to navigate the minefield of mental health with employees. Our masterclass is an investment: an investment in securing a workforce that is treated with respect and dignity; an investment that ensures managers are equipped to deal with the ‘s-word’; and an investment to ensure that, unlike BAE Systems, employees are trained how to act to prevent your business from having to pay out six-figure sums to former employees.