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Is there any case law on an employer who conducts a stress risk assessment, identifies control measures and then...

Is there any case law...
Is there any case law on an employer who conducts a stress risk assessment, identifies control measures and then deliberately and consciously decides not to implement the identified control measures?
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Answered in 13 hours by:
6/18/2014
Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 50,953
Experience: Qualified Employment Solicitor
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Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. I will try to find out if such a case has existed. what reasons has your company give for not implementing the assessment.

Customer:

Dear Ben,

Customer:

We considered we had done enough befrore the risk assessment had been conducted.

Customer:

This is a remitted case from the Court of Appeal to an Employment Tribunal Hearing in Cardiff. Gallop v Newport City Council A2/2012/2073

Ben Jones :

ok thank you leave this with me I have a meting this afternoon and will get my advice ready for you for later this afternoon regards ben

Customer:

Thanks.

Ben Jones :

Many thanks for your patience and apologies for getting back to you just now – I was called into a tribunal today.


 


The Gallop case is concerned with the employer blindly following an Occupational Health’s assessment of an employee’s condition when deciding that the employee did not have a disability under the Equality Act 2010. It therefore refused to make reasonable adjustments, which they would have had to make had the employee been considered disabled. The EAT ruled that the employer should have gone further in its assessment and made its own decision on whether the employee satisfied the requirements for being disabled in law.


 


So the key is whether the employee was actually disabled and whether the employer should have reasonably known that to be the case and made the necessary adjustments as a result. Therefore, if the employer had failed to make reasonable adjustments when in the circumstances they should have, they could be acting unlawful and be guilty of discrimination. Other relevant case law is as follows:



  • Smith v Churchill's Stairlifts plc [2006] IRLR 41 - the Court of Appeal held that the test of reasonableness is objective and to be determined by the tribunal

  • Duckworth v British Airways plc ET/330470/11 – the ETl found that a delay of six months in implementing a transfer of duties of a member of cabin crew was unreasonable. This amounted to a failure to comply with the duty to make reasonable adjustments, even though the employee was eventually transferred.


 


The situation would therefore depend on the individual circumstances – what adjustments or changes were reasonable in the circumstances and would the employer have been reasonably expected to implement them in this particular situation, something which would vary from case to case.


 


Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thanks for your reply. What I am looking for is case law on a stress risk assessment that was conducted by the employer - with a warning we must protect the council from possible future proceedings by developing and implementing a plan - then the employer totally ignored the risk assessment. Claimed that it implemented the plan in a formal grievance although HR informed Occupational Health that the action plan had never been implemented.

Customer:

Confused? I am Why ignore a risk assessment?

Ben Jones :

There is quite a lot of case law on stress in the workplace and liability for personal injury but nothing specific I can see that matches your query. The main bulk are concerned with the reasonable foreseeability of the injuries occurring and how the injuries were incurred, but not as specific as the employer identifying risk assessments and then failing to implement them.

Customer:

Thanks for your help.

Customer:

This is what I have found but sometimes I have missed things so it is good to have confirmation.

Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 50,953
Experience: Qualified Employment Solicitor
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