The Difference Between A Stress Claim and An Employment Claim
It is a common misconception that all disputes arising out of an individual’s employment contract must be pursued in the Employment Tribunal. The reality is that is not always correct.
For many where dispute or conflict arising during the course of their employment this can and does cause a degree of stress and anxiety. This of course is only natural. Employment is a big part of most people’s daily lives and is the means by which people fund their lives. However where there stress and anxiety becomes so significant that it is a ‘recognised psychological condition’ such as depression or an anxiety disorder this can give rise to separate civil remedies against an employment which can only be obtained in the civil courts and not in the Employment Tribunal.
The overlap between Employment Tribunal claims and civil claims arising out of an employment contract such as stress at work claims is a very difficult area of law to understand or appreciate from the layman’s perspective and expert legal advice is required ideally from a firm of Solicitors who are able to advise on both potential avenues.
The Employment Tribunal have exclusive jurisdiction to hear claims for constructive or unfair dismissal. Furthermore the Employment Tribunal have exclusive jurisdiction to hear claims for discrimination under the Equality Act 2010.
Perhaps the most common misconception relates to what actually amounts to discrimination. Firstly in order to make a claim for discrimination an individual must have a ‘protected characteristic’. The Equality Act 2010 provides a prescribed list of protected characteristics but the common characteristics are race sex age disability and religion.
In order for any discrimination claim to succeed an individual has to prove that the unwanted acts have occurred as a result of their protected characteristic in essence that the conduct is in someway motivated either consciously or subconsciously or otherwise prejudicial to the individual because of their protected characteristic. This is not always easy to prove.
I have seen on many occasions individuals allege discrimination but they are unable to identify a protected characteristic or are unable to prove that the conduct was as a result of a protected characteristic. Often the reality is that the unwanted conduct for a colleague or manager would be more commonly termed bullying and harassment.
Generally claims for bullying and harassment are in fact common law claims which can only be pursued in the civil courts either in negligence or under the Protection from Harassment Act 1997.
If the unwanted conduct is motivated as a result of discrimination then the claim can be brought in the Employment Tribunal but if for instance an individual is being unfairly treated by a manager or bullied by colleagues this is a claim which can only generally be pursued in the civil courts.
For example if you take two individuals of the same sex and similar age one who is a manager and the other a subordinate. If the manager bullies and harasses the subordinate for instance the manager publicly humiliates the subordinate then it may be difficult for the subordinate to identify an appropriate protected characteristic and a claim in the Employment Tribunal may fail. The same claim pursued in the civil courts could in theory succeed.
This is where a major problem lies because people are only commonly aware of the claims which can be pursued in the Employment Tribunal and therefore attempt to allege that the conduct is discriminatory without understanding the necessary to tests to establish liability in the Tribunal.
A further difficulty is that claims in the Employment Tribunal are subject to very short time limits with many claims having to be brought within 3 months. However a claim for personal injury has a 3 year limitation period or alternatively a 6 year limitation period under the Protection from Harassment Act 1997.
Why Are Stress Claims Not More Common?
Stress at Work claims are a very niche and difficult area of law. Many firms of Solicitors do not handle stress at work claims because of the difficulties with such claims.
One of the major obstacles is proving ‘forseeability’ that is proving that the employer knew or ought to have known that the individual was going to suffer a recognised psychological injury (the wording used by the Courts is ‘impending harm to health’) as a result of the employers conduct.
This can be very difficult to prove and as there is no equivalent requirement in discrimination claims it can be easier to succeed in discrimination claims in the right circumstances.
What Options Are Available to a Claimant?
It is important that Claimants take advice from a firm of Solicitors who can advise about both potential claims as it is essential that the correct decision is made at the outset as to which claim to pursue.
In certain circumstances it is possible to pursue both a claim in the Employment Tribunal and in the Civil Courts however this is not always the case. In certain cases once you have commenced a claim ordinarily a discrimination claim it can be very difficult if not impossible to pursue a second civil claim for stress at work as the court may consider this to be an abuse of process. In some scenarios even if the discrimination claim is withdrawn this could prevent a separate stress at work claim being pursued.
It is therefore imperative that a Claimant takes full and accurate advice at the outset in respect of all potential avenues available.
Michael Lewin Solicitors are one of only a comparatively small number of firms who specialise in both Employment and Stress at Work claims. Michael Lewin Solicitors are therefore in an ideal position to advise you are of all your potential options.
If you believe you have either an employment or stress at work claim please feel free to email us on firstname.lastname@example.org or call us on 0844 499 9302.
Head of The Stress at Work Department
Michael Lewin Solicitors