Stress in schools – the legal position for teachers and management

The chief inspector of schools, Sir Michael Wilshaw, did little to ingratiate himself with the teaching profession last year when he suggested that teachers did not know the meaning of stress.

It is a common misconception. How many teachers who, having complained about an aspect of their job, have been told that with all that holiday, the 3:30pm finishes, and the joy to be had from moulding young minds, there could not be anything to get stressed about?

In fact, had Sir Michael done a little research he would have discovered that the Health and Safety Executive has found teaching to be one of the occupations with the highest levels of work-related stress.

Information collated by the Guardian last year showed a 10 per cent increase in stress-related sick leave for teachers over the last four years and a recent poll by the National Union of Teachers found morale in the profession to be “dangerously low”.

And events last year have done nothing to ease the lives of teachers. Aside from the unhelpful comment from Sir Michael, changes to Teachers’ Standards, modified capability and appraisal processes all have the potential to raise stress levels and may provide an avenue for bullying behaviour (or at least perceived bullying).

The individual teacher is not the only one to suffer when stress levels get too high. Colleagues who may have to provide assistance and support, pupils who are being taught by someone who is not on top form, and headteachers who have to manage sickness absence, grievance and disciplinary matters, all feel the impact.

The best approach to stress is for all parties to be open about the problems and try to find ways of reaching amicable solutions (a few practical solutions are set out at the end of this article). However, if that is unsuccessful, what is the legal position for teachers and schools where staff are suffering stress?

The law 

An employer can potentially be liable in the following ways:

• A claim in common law for negligently causing an employee psychiatric injury.

• A claim under the Protection from Harassment Act.

• A claim in the Employment Tribunal for unfair dismissal or discrimination.

Negligence

For a claim in common law negligence to be successful, an employee needs to show both of the following:

• That their employer knew or ought to know that they were at risk of suffering imminent psychiatric harm.

• That they failed to take reasonable steps to prevent the harm occurring.

Schools are entitled to take staff at face value so if no-one knows that the employee is vulnerable to psychiatric injury, or that they face a very real risk of a breakdown, they cannot be held liable if one does take place.

Complaints need to clearly set out the problem and the potential (or actual) risks; general staff moans and groans will not be sufficient. The signs must be plain enough that a reasonable employer would understand that they needed to act. 

In most successful claims the staff member will already have had one period of absence from work with stress or psychiatric symptoms, but this is not required and if the warning bells are being sounded loudly enough, a “first breakdown” case can be successful.

Once an employer is aware of the risks, they are required to take all reasonable steps to prevent the harm occurring. 

The key word here is “reasonable”, which will depend on the particular circumstances but is likely to include changes such as reducing a person’s workload or addressing any conflicts between staff members. 

For schools, it can be difficult to achieve a balance with fixed budgets, welfare of other staff members to take into account and the need to maintain teaching standards for pupils. 

As a rough rule of thumb, if the head or the governors are treating the staff member as they would expect to be treated in the same situation, then they are probably on the right track to being “reasonable”.

If the teacher establishes that the injury was foreseeable and that reasonable steps were not taken, the employer will be liable for any injury that results.

“Mere” stress is not enough to succeed. The employee must have suffered a clinically significant injury. This can either be psychiatric or indeed physical (claims having been made for stress-induced heart attacks).

Protection from Harassment Act

While principally dealing with criminal acts of harassment, this Act can also be used to provide recourse for employees subjected to harassment at work.

To establish a claim there must be more than one act of harassment which takes place in the course of a teacher’s employment by another member of staff. Harassment is defined as conduct which is “oppressive and unacceptable”. Poor management or general rudeness are unlikely to be sufficient, but verbal abuse or threats are likely to be.

Unlike negligence, there is no requirement for the employer to be aware of the risk or that the conduct is taking place – if one of your staff harasses another, you are likely be liable.

A further important point is that the employee does not need to have suffered a psychiatric disorder. It will be sufficient for them to show that they suffered anxiety or distress as a result.

Employment tribunal

A claim can be pursued in the employment tribunal for unfair dismissal or constructive unfair dismissal. The former is where the employee is dismissed in a way that does not comply with employment law, for example, when the employer did not follow a proper procedure for dismissing or did not do so for a fair reason. 

Constructive unfair dismissal is where the employer has breached the employee’s contact of employment (e.g. through overwork or allowing bullying behaviour to continue) and an employee resigns in response to this.

Claims can also be brought under the Equality Act if the employee is discriminated against on one of the protected characteristics. Damages can be awarded if a person is treated less favourably because of their race or sex etc, if they are disadvantaged by a provision or criteria at work, or they are victimised or harassed.

Disability discrimination is most common in stress claims where stress may result in the individual becoming disabled (as defined by the Equality Act). 

There is special additional protection for disabled individuals. Employers are required to make reasonable adjustments to the work place, systems of work or work equipment to minimise any disadvantage they suffer. This can include reduced hours of work, being provided with teaching aids or training. Those who are disabled are also offered protection from discrimination arising out of their disability.

Tribunals provide a relatively cheap (at least for now – tribunal fees are to be introduced this year) and arguably more informal avenue than the court system, although time limits are short and claims must generally be issued within three months of the alleged conduct.

Having said all that, prevention of claims is best for all concerned. Stress is such a subjective matter and the appropriate response will depend on the individual circumstances so it is important to seek advice from HR or legal professionals. However, the following guidance may also assist.

Practical guidance for teachers

• Speak up as soon as you realise there is a problem – suffering in silence is unlikely to help and if it is addressed early, it is less likely to escalate.

• Think about what you need or would like the outcome to be – strange as it sounds, often staff fail to think about this and this makes it harder for the employer to address the problem.

• Seek support – the Teacher Support Network provides excellent assistance including helplines. Also speak to your union to see what support they can provide.

Practical guidance for schools

• Encourage staff to be as open as possible if they have problems. This will enable you to try and resolve them at an early stage before they become unmanageable.

• If someone makes a complaint – deal with it. Even if you don’t think it has merit, do not ignore it.

• If you have bullying/stress, grievance and disciplinary policies in place, make sure you comply with them. All too often employers trip themselves up by not complying with their own policies. 

• Find out what the individual would like to happen – simple practical solutions can sometimes be missed so think creatively around the problem.

• If someone had or is likely to suffer symptoms for more than a year, consider what reasonable adjustments can be made and ensure they are actioned.

• If a teacher is on long-term sick leave, get medical advice from their GP or occupational health about how you can support their return to work.

• When a staff member comes back to work, monitor them regularly, even if it is just a 10-minute chat over coffee to find out how they are getting on.

• Speak to the local authority and your insurers – they may have someone who can assist with these problems. 

• Vanessa Latham is a partner at law firm Berrymans Lace Mawer LLP Email vanessa.latham@blm-law.com