Miller Hendry Hotspots Publication - April 2007

Work Related Stress

The Court of Appeal recently held that, whilst an employer may generally take an employee’s behaviour at face value, in the case in question they should have probed further when the employee advised that she was stressed and having violent mood swings.

The simple fact of provision of a confidential help or counselling service has also been held not to be sufficient in all cases to discharge an employer’s duty of care. A vigorous assessment of the facts of any particular case will be required to determine whether the provision of such services would assist an employer to discharge their duty of care in that particular case. In other words, the mere provision of a counselling service will not automatically discharge an employer’s duty of care.

In another recent decision, the High Court held that a health visitor who suffered a complete nervous breakdown after bursting into tears at her performance review had suffered injury as a result of foreseeable stress at work. She was awarded damages of £62,000 even though she had only worked for the company for two and a half years.

Disabled Employees on Sick Leave

The Employment Appeal Tribunal (EAT) has confirmed that a disabled employee is entitled to statutory and/or contractual sick pay during any long term sick leave. However, this does not extend to receiving full pay unless this is part of the employee’s contract of employment. The EAT rejected the argument that as the absence was disability related it would be discrimination not to give full pay throughout such absence.

This decision does not affect the employer’s obligation to make “reasonable adjustments” if this would assist the disabled employee to return to work.

Risk Assessment for Pregnant Employees

The Court of Appeal recently upheld a decision that a claimant had not suffered unlawful discrimination as a result of her employer’s failure to carry out a risk assessment in accordance with regulation 16 of the Management of Health and Safety at Work Regulations 1999. It was held that the duty only arises where the work is of a particular kind which could involve special risk to a new or expectant mother or her baby.

However, it is obviously good practice for employers to undertake a risk assessment for all pregnant employees to identify any potential hazards in their working environment and suggest solutions.

Best Practice Points for Company Directors

If you are a company director, the following ten points should always be followed:-

act in good faith and in the best interests of the company.

check that the company does not exceed what it is allowed to do in its Memorandum.

ensure that powers conferred on you by the company’s Articles of Association are used for their proper purpose.

if there is a conflict of interest between you personally and the company, ensure that the company always wins. Avoid conflict issues by fully disclosing your interest to the board of directors.

refrain from dealing in your own interests rather than the company’s when involved with company business and property.

go to as many board meetings as you can and make sure you know at all times what is happening. Ignorance is no defence and, as a director, you will be jointly liable for any mistakes made.

do not accept loans from the company. Obtain shareholder approval when it is required for actions taken. Know your rights as a director and/or shareholder in relation to the calling of meetings, voting and such like.

keep up to date with all the record keeping and administrative requirements set out in the Companies Act.

obtain advice straight away if you think that the company may not have enough money to cover its debts, as waiting could affect your personal liability.
keep up to date with the duties of directors in relation to specific areas applicable to your business, such as health and safety.