Chapter 6: Burnout: the legal perspective – Managing Burnout in the Workplace

6

Burnout: the legal perspective

Abstract:

This chapter discusses the law as it relates to burnout and stress in three jurisdictions: Canada, the United States, and the United Kingdom. Emphasis is given to issues surrounding workers’ compensation, with less focus on occupational health and safety. In the United Kingdom context, there is also a discussion related to directives as mandated by the European Union.

Key words

burnout

stress

post-traumatic stress

mental injury

Canada

United States

United Kingdom

jurisprudence and legislation

workers’ compensation

occupational health and safety

Introduction

Inevitably, when a job makes an employee so ill as to suffer burnout, something has to give. A person may take sick leave, leave the job, or be fired. None of these options are particularly desirable, yet when burnout progresses to a point where an employee can no longer function, few other options exist. Even when an employer is willing and able to affect changes in the workplace, it may not be enough. Change in the workplace is only one part of the solution – while adjusting duties, responsibilities, and the reporting structure certainly helps, cultural change within the organization is also necessary. Without cultural change, a worker suffering from burnout is less likely to fully recover.

Nonetheless, an organization might only be willing to change once a burnout sufferer has taken legal action. In this case, what does the law actually say about burnout? What legal rights does a sufferer of work-related burnout have? What rights do employers have? Has there been any guidance from courts or governments on how workplace burnout must be handled?

In the three jurisdictions which we deal with here, there is little established law on the issue, making the problem that much harder to deal with effectively. There does, however, seem to be change on the horizon in jurisdictions such as the United Kingdom. Even countries such as Canada are making small concessions in the jurisprudence to employees suffering from burnout. Regardless of such positive developments, it seems clear that it will be some time before burnout as a specific mental injury sustained at work will be widely accepted as compensable in both the employment and legal spheres.

Before we delve into the law, we will first provide some context, describing both the essential differences between burnout and other stress-related disorders and the power imbalance in the work relationship.

Burnout, stress, or post-traumatic stress?

In Chapter 1, we saw that burnout and stress are related yet separate maladies. As Casserley and Megginson (2009) proffer,

[s]tress is viewed as a temporary adaption to environmental stressors that brings with it psychological and physical symptoms while burnout indicates a failure to adapt resulting in “chronic malfunctioning”. … [Burnout] also involves symptoms such as the manifestation of negative attitudes and behaviours at work which are not traditionally considered a stress variable. (p. 17)

While burnout and stress are distinct, North American courts and tribunals often understand them as being one. The same goes for post-traumatic stress disorder (PTSD), although that, too, is a distinct and separate ailment. PTSD “occurs after a traumatic event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others” (Bisson, 2007, p. 789). Others describe it as “a psychiatric disorder caused by exposure to a traumatic event or extreme stressor that is responded to with fear, helplessness, or horror” (Mealer et al., 2009, p. 1118). Burnout and PTSD are quite dissimilar in their makeup, yet some in the legal field have treated them as though they are the same, or have mislabelled instances of burnout as PTSD. In the courts, burnout as a separate malady is generally rejected, at least in the North American context.

Power imbalance between employees and employers

It is well-established in law that an inequality of power exists between employers and employees (England, 2008, p. 3; Svirsky, 1998, p. 568; Wallace v. United Grain Growers Ltd., 1997; Slaight Communications Inc. v. Davidson, 1989). In non-union environments, employers have an abundance of power, leaving workers at a disadvantage. This begins early in the relationship, starting with the job advertisement, which employers often describe as a competition. The disadvantage becomes abundantly clear with the initial negotiation of the employment contract (England, 2008, p. 44). Employers, with resources, power, and knowledge, may effectively wield the employment contract as “a vehicle to effectuate their real-world dominance over the employee” (England, 2008, p. 3). Employees rarely have the strength, confidence, or skills to negotiate effectively, especially during times when jobs are scarce. A person in need of employment often will not risk upsetting a potential employer by negotiating very hard (or at all).

Nonetheless, at certain times or in certain sectors, employees may actually boast more power due to an overall lack of workers in the field (England, 2008, pp. 105–6). For example, employers have recently complained that there are not enough skilled workers available to fill jobs in Canada (Blackwell, 2012). This desperate search for skilled workers has resulted in a call for increased immigration and spending on training and education (Blackwell, 2012). Such examples usually signal only a temporary shift in the power balance, however, and do not necessarily migrate to other employment sectors.

While legislation exists in many countries to protect the rights of employees – acts dealing with employment standards, for example, or workers’ compensation – enforcement can be difficult, even more so for certain groups such as visible minorities, women, those who work parttime, and so on (England, 2008, p. 115x). Enforcing one’s rights through courts or tribunals is often prohibitively expensive, lengthy, and onerous, resulting in employers not having to respond to or take seriously infractions they may have committed. At almost every turn, the employer–employee relationship is distinctly weighted towards the employer.

Employees who are members of a union exercise much more power. Unions were created to protect “the weaker contracting party, balancing the interests of workers and employers” (Ojeda Aviles, 2009, p. 47). By banding together, workers as a group were able to increase their bargaining power. Yet in recent years, the strength of unions appears to be diminishing. From the rise in globalization in the past several decades to the economic meltdown of 2008 to the increased use of contract workers, labour unions have lost a great deal of influence and traction. Increased globalization (including outsourcing); the rise of contract work; the evolving nature of work, from technological advances to the decline of manufacturing; and the overall weakening of laws are but a few challenges facing labour unions today (Bronstein, 2009). Since the 2008 economic crash, many overtly political maneuvers have been launched to curtail the reach of unions. For example, the government of Wisconsin in the United States attempted in 2011 to severely restrict the bargaining rights of public sector employees. While the courts struck down much of the law in 2012, the fight is far from over, as an appeal is still likely (Greenhouse, 2012). In Ontario, Canada, the provincial government froze the wages of teachers and unilaterally banned them from striking (Howlett, 2012). The Canadian federal government has forced several unions back to work after going on legal strikes under the guise that such strikes would either damage the Canadian economy or impact public safety (see, for example, Chase et al., 2012).

Many question whether or not unions can survive in such an environment, including some unions themselves (Van Alphen, 2012). While they still represent their members and help to balance out the power employers have over employees, the number of unionized workers is on the decline.

Canada

What do courts and tribunals say about burnout?

Courts and various administrative tribunals in Canada have not given much credence to the concept of burnout. While adjudicators may mention burnout within the context of their reasons, the malady in question is eventually labelled as stress, PTSD, or another related disorder. In Decision No. 397/92 from the Ontario Workers’ Compensation Appeals Tribunal, one of the worker’s psychologists labelled his disorder as “ ‘classical burnout phenomena which manifested itself in both physical and psychological exhaustion’” (1992, para. 115). While burnout was held by a mental health professional to be a factor in the employee’s inability to work, it was essentially dismissed. The adjudicators relied on other mental health professionals, who stated “that the ‘burnout’ concept is not one which is included in the classification systems which psychiatrists use … the term ‘burnout’ is a rhetorical term … [and] that terms such as ‘burn-out’ … may be used as one approaches retirement” (sic) (1992, paras. 163–4, 167).

This statement – that burnout is simply a rhetorical term – is contrary to the research of people such as Christina Maslach (1982) who have established that burnout is indeed its own separate syndrome with an established definition and indicators (see Chapter 2 above). Ultimately, adjudicators found that the worker suffered from a psychological disability that was compensable, but labelled it as PTSD rather than burnout. In another decision, Decision No. 1030/89, the adjudicators provided some commentary about burnout:

there is some agreement that the concept of burnout, when used in reference to a working situation, is based on the premise of cumulative stresses in a particular work environment. … In the literature, the term burnout has been described on the basis of three main features: emotional exhaustion; depersonalization toward those for whom one is responsible; and devaluation of one’s achievements. However, such characterization is only one of several variations found in the literature. (1991, para. 146)

This rare recognition is promising; however, the adjudicators went on to describe why burnout is difficult to establish:

The self-generating and self-reporting nature of burnout makes it difficult to objectively measure the actual level of discomfort experienced. … The overall uncertainty covering burnout as a clinical entity partly explains why burnout is not listed in major classification systems. … Another problem is that descriptions of burnout closely approximate descriptions of depression. (1991, para. 146)

The adjudicators ultimately decided burnout was not applicable in the case at hand.

While many have dismissed burnout as a syndrome, a handful of courts and tribunals have held burnout to be a diagnosable syndrome that, if work related, may be compensated by either employers’ or workers’ compensation programs. The most pertinent case in Canada is Zorn-Smith v. Bank of Montreal. Susanne Zorn-Smith was informed while on maternity leave that her position had been downsized. The Bank of Montreal offered her a position in another department in which she had no experience or training; as well, to remain in the position she was to complete outside courses and training in her own time. Although she felt this was not a suitable replacement position, she believed she had no other choice. On top of having no experience or training in this particular area, she was put in the position during the busiest time of year in an understaffed department where she was expected to pick up the additional workload. She was also pressured to work more on the outside courses so she would have the proper qualifications earlier.

The heavy workload and pressure from management took its toll, and less than a year after taking on this new position Zorn-Smith went out on short-term disability. She returned but the problems in the workplace were not addressed, resulting in her returning to short-term disability a year later. While her doctor considered her to be totally disabled, the Bank’s medical advisor claimed she was able to return, at least on a parttime basis. Based on this information, the Bank gave Zorn-Smith an ultimatum: her short-term disability was to be cut off and she must return to work or resign. Zorn-Smith did not reply by the deadline imposed, and so the Bank terminated her employment.

Among other things, a doctor working with Zorn-Smith determined that she was indeed suffering from burnout, and the judge agreed: “The Bank was well aware that Ms. Zorn-Smith had suffered burnout in February 2000” (2004, para. 168). Zorn-Smith was psychologically disabled and was not required to respond to the ultimatum (2004, para. 74). The court held “[i]t was the responsibility of the Bank to ensure a safe workplace for its employees, a workplace that was not making them ill and unable to work” (2004, para. 103). Interestingly, the judge in this case stated that “the technical diagnosis for burnout” (2004, para. 48) is “an adjustment disorder with depressed and anxious mood” (2004, para. 48).

Only a few other cases can be found that deal with burnout, such as Entner v. Swissair Transport Co. One Quebec tribunal dealt with the issue of burnout in some detail in Labrie et C.S.S.T.-Laurentides et Les Planchers 5 Étoiles Enr. Labrie was extremely overworked for many months and ended up needing time off due to the strain of the long hours and heavy workload. The commissioner determined that the unfathomable amount of overtime and the additional responsibilities caused the worker to suffer from burnout. It was held that the employee experienced a workplace injury, diagnosed as burnout, which resulted in him being unable to perform his work duties (1999, p. 13; decision only available in French). The worker was specifically found to suffer from burnout due to workplace injury.

There are a few other Quebec tribunal decisions wherein an employee was held to be suffering from burnout. It appears tribunals in Quebec are more likely to give burnout credence than those in other parts of Canada, but it is still a struggle for the employee to come out on top in these types of cases.

What does the legislation say about burnout?

While few cases and decisions mention burnout, Canadian legislation is silent on the topic. From employment standards legislation to workers’ compensation legislation, burnout is never mentioned. The Workplace Health, Safety and Compensation Commission of Newfoundland and Labrador briefly mentions burnout in policy number EN-18 on Entitlement and Mental Stress: “ ‘Burn out’ from usual duties, workplace change, or performance demands is not compensable” (1999, p. 2). Burnout is never defined in the policy, but it is ruled out as being compensable under the Workplace Health, Safety and Compensation Act (1990).

The law and stress

Unlike burnout, much more commentary on the law of stress exists, although it is an area that remains in flux.

In Canada, workers’ compensation schemes are a provincial responsibility. Workers employed by the federal government have their own federal statute similar in form to a workers’ compensation act, the Government Employees Compensation Act (GECA), but if there is a claim under the act, the province in which the claimant resides administers the claim under their own workers’ compensation system (Lippel and Sikka, 2010, pp. S16–S17). Federal employees’ rights under GECA will be discussed in more detail below.

Currently, workers’ compensation legislation in every jurisdiction allows claims for acute stress; that is, stress which quickly developed after a surprising, dangerous, or threatening event. Conversely, six jurisdictions – Manitoba, Ontario, New Brunswick, Newfoundland and Labrador, Prince Edward Island, and Nova Scotia – specifically exclude claims based on long-term, cumulative, chronic stress (Lippel and Sikka, 2010, p. S17). For example, section 2(a) of the Workers’ Compensation Act (1994–1995) of Nova Scotia states:

2 In this Act,

(a) “accident” includes

(i) a wilful and intentional act, not being the act of the worker claiming compensation,

(ii) a chance event occasioned by a physical or natural cause, or

(iii) disablement, including occupational disease, arising out of and in the course of employment,

but does not include stress other than an acute reaction to a traumatic event.

This wording is similar to that of workers’ compensation acts from other jurisdictions that refuse claims for chronic stress. In some jurisdictions, even more restrictions apply. This is discussed in more detail below.

British Columbia once restricted stress claims to only those that were acute stress reactions to a specific traumatic event. After Plesner v. British Columbia (Hydro and Power Authority) (2009) (Plesner), the province made changes to their act which came into effect in July 2012. The Court of Appeal in Plesner held that restrictions on stress claims under the act “are a violation of the equality provisions of the Canadian Charter of Rights and Freedoms and constitute discrimination on the basis of mental disability” (Lippel and Sikka, 2010, p. S17). The claimant had suffered a breakdown after an explosion of a natural gas pipeline; while he was not physically injured, was a sufficient distance away from the rupture, and the leak was contained in slightly over an hour, Plesner subsequently suffered from depression, PTSD, and paranoia. The Workers’ Compensation Board held that his stress was chronic instead of acute, and that the incident could not be seen as traumatic due to his limited exposure to the event. On appeal to the Workers’ Compensation Tribunal, it was held that his stress was an acute reaction to the event, but the Tribunal agreed with the Board that the event itself was not a traumatic event as defined in Policy 13.30 under the Rehabilitation Services and Claims Manual employed by the workers’ compensation system in British Columbia.

On appeal to the Court of Appeal, the court ruled that the wording of the act, combined with Policy 13.30 (2009b), which enumerates when a worker may make a claim for mental stress, contravened the Canadian Charter of Rights and Freedoms (1982) (Charter):

I am satisfied that the requirement of a “traumatic event” in s. 5.1(1) (a) of the Act, when read together with Policy 13.30, breaches s. 15(1) of the Charter by discriminating against Mr. Plesner, and other workers like him who suffer from purely mental work-related injuries, on the basis of mental disability. Workers with purely mental injuries are forced to meet a significantly higher threshold for compensation which is not required of those who suffer work-related injuries that are purely physical, or who suffer mental injuries which are linked to physical work-related injuries. (2009, para. 96)

In response to Plesner, British Columbia amended its legislation so that there are no exclusions to chronic mental stress claims. The new wording in the Workers’ Compensation Act (1996) of British Columbia is the following:

5.1 (1)Subject to subsection (2), a worker is entitled to compensation for a mental disorder that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental disorder

(a) either

(i) is a reaction to one or more traumatic events arising out of and in the course of the worker’s employment, or

(ii) is predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment.

British Columbia joins six other jurisdictions – those being Quebec, Saskatchewan, Alberta, Northwest Territories, Nunavut, and the Yukon – none of which have exclusions to chronic mental stress claims in their workers’ compensation legislation (Lippel and Sikka, 2010, pp. S17–S18).

While these jurisdictions expand the ability of workers to make mental stress claims, some reiterate that employees must still meet a higher threshold for a mental injury than for a physical injury. In reference to the British Columbia legislation, some commentators point out that

“[f]or any other physical injury, the work cause need only be ‘significant,’ and if there were no disabilities due to the injury before the work accident/exposure, work is considered to be the cause. For psychological injury, however, the work related cause must be ‘predominant,’ which means the board can delve into the worker’s private life and dig up any other stressors to blame for the condition, regardless of whether those issues were in any way disabling prior to the workplace stressors. This is just plain discriminatory.”

[Union President Michelle] Laurie said the requirement that a mental condition be diagnosed by a psychiatrist or psychologist, rather than a family doctor as it has worked in the past, is problematic.

“It takes a long time to get an appointment with a psychiatrist, even in urban centres, and even longer if the injured worker lives outside of the Lower Mainland. People should be outraged about how workers with psychological injuries are being treated.” (Sandborn, 2012)

Lippel and Sikka also submit that in the seven jurisdictions that allow for claims involving chronic stress, it has been held by the courts and tribunals that the precipitating stressor must be unusual or abnormal; that is, outside normal everyday stressors. What the criteria are for unusual or abnormal is not clear (2010, pp. S17–S18).

In several jurisdictions, whether allowing claims for chronic mental stress or not, decisions dealing with management of workers’ employment, such as disciplinary matters or termination, are not subject to stress claims. Additionally, in either the legislation or the policies adopted by some Workers’ Compensation Departments in many jurisdictions (for example, British Columbia), only those mental disorders as defined in the Diagnostic and Statistical Manual of Mental Disorders, or some other similar diagnostic manual, may be the subject of a mental disorder claim.

These extra criteria further restrict the ability to file a claim, making it quite difficult for mental stress-related claims to be successful.

Despite such restrictions, a chronic pain case from the Supreme Court of Canada has now opened the door on the national level on conditions normally excluded from workers’ compensation acts. In Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur (two cases heard together), two claimants were suffering chronic pain due to workplace accidents; however, in the Nova Scotia Workers’ Compensation Act and related regulations, chronic pain was specifically excluded as being covered. The Supreme Court of Canada found this exclusion to be in violation of the Charter, as those experiencing chronic pain were provided different treatment based on the nature of their disability (2003, para. 5). The Industrial Accident Victims’ Group of Ontario and Community Legal Education Ontario co-published a manual on workers’ compensation issues wherein the authors argue that this case applies to workers who have suffered some sort of mental disability or injury on the job: “the … exclusion from benefits of workers based on their type of psychological disability is discriminatory, and not justifiable under the Charter” (2006, ch. 11, pp. 11–15). Such Charter (1982) arguments will likely be more common in the future.

Federal employees have their own compensation act, as mentioned above – GECA. The province in which the federal worker lives and works will adjudicate the claim on behalf of the federal government. There has been an issue, though, of some adjudicators transposing the language of their own provincial workers’ compensation legislation into GECA. Some argue that exclusions found in provincial acts have no merit when adjudicating a claim: “it has been held on several occasions that [federal] employees … will not be subject to the statutory exclusions in provincial legislation, given that the federal Act provides for no such exclusion” (Lippel and Sikka, 2010, p. S17). According to this argument, federal employees have broader access to workers’ compensation claims due to the looser language of the federal act, including mental health claims.

In a case from Newfoundland and Labrador, this distinction was made slightly clearer. In Canada (Royal Canadian Mounted Police) v. Rees, a jail guard employed by the Royal Canadian Mounted Police (RCMP) was required to provide comments on the actions of his supervisor. Rees believed his comments would be kept confidential, but they were in fact shown to his supervisor. The supervisor then began a campaign of harassment and humiliation to the point where Rees became stressed and eventually took sick leave. Rees eventually filed a statement of claim alleging harassment, breach of duty of care, and negligence. A question of jurisdiction to hear the case arose with the RCMP claiming Rees had to go through the workers’ compensation system instead of a civil action. In the process of finding that Rees was able to file a civil claim, the court held that the language in GECA must be used rather than that of the workers’ compensation legislation in the province in which the claim was filed:

The fact that language comparable to that in provincial legislation, which specifically excludes gradual onset stress, is not employed under the federal Act further supports the conclusion that gradual onset stress falls within the scope of “accident” for which compensation may be payable under the Government Employees Compensation Act. (2005, para. 32)

Other courts agree that the wording in GECA cannot be limited by stricter wording in a provincial workers’ compensation statute, although there have been decisions that have found otherwise, such as Re Morrison Estate, in which the Nova Scotia Court of Appeal held

the language in s. 4(1) of GECA is sufficiently broad and inclusive to embrace the language creating entitlement in the Nova Scotia Act; thus a worker entitled under GECA to claim compensation in Nova Scotia is by necessary implication also entitled to the benefits, and is bound by any restrictions contained in the provisions of the Nova Scotia Workers’ Compensation Act. (2003, para. 45)

While there seems to be division on this issue, some provincial Workers’ Compensation Boards are adopting policies that make the interplay between GECA and the provincial workers’ compensation statute a bit clearer. Subsequent to the Re Morrison Estate case, the Workers’ Compensation Board of Nova Scotia determined that federal employees filing chronic stress claims under GECA can be compensated as long as the criteria outlined in their GECA policy is met (2005, Policy 1.3.6; WorkSafeBC, 2009a, p. 15). WorkSafeNB, the workers’ compensation commission in New Brunswick, states in Policy 21–011 that “A claim for mental stress may be compensable if it meets the criteria outlined in section 4 of GECA, which WorkSafeNB uses to determine if an accident arose out of and in the course of employment” (2001, s. 3.1, p. 7).

It is interesting to note that a number of decisions and cases in the 1990s in some jurisdictions did allow claims for chronic stress, leading to amending statutes so that they explicitly eliminate chronic stress as an eligible claim (WorkSafeBC, 1998; Shortt, 1995). In Dowling v. Prince Edward Island (Workers’ Compensation Board) (1994), the Prince Edward Island Court of Appeal held that there was nothing in the definition of accident or employment under the then version of the Workers’ Compensation Act that would not allow a claim for chronic stress. Subsequent to this decision, the government of Prince Edward Island amended the statute so that chronic stress was specifically eliminated as an eligible claim (WorkSafeBC, 1998, p. 7). Similarly, the Ontario workers’ compensation statute was amended in 1998 so that chronic stress was no longer eligible for a claim (Gunderson and Hyatt, 2000, p. 358). Other jurisdictions followed suit (WorkSafeBC, 1998, p. 18; Lippel and Sikka, 2010, p. S17).

Even after such changes, “case law shows a surprising variation in the ways in which these [exclusionary] provisions have been interpreted and applied” (Lippel and Sikka, 2010, p. S17). In a Nova Scotia Court of Appeal case, a worker was chastised by his supervisor, resulting in his suffering from PTSD. The employer argued that the event would not be seen as traumatic by a reasonable person, but the court held that this was a traumatic event for the worker (who had suffered from past anxiety), and was not a common, usual experience (Lippel and Sikka, 2010, p. S17; Children’s Aid Society of Cape Breton-Victoria v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (2005)).

Stress at work has recently been given more attention due to a report about stress in the workplace published in 2009 by the Mental Health Commission of Canada. Martin Shain, the author of the report, found that there is a great “deal of uncertainty concerning where the boundaries of liability for mental injury at work lie. This situation is due in part to the rapidly evolving nature of legal developments in this area” (p. 5). In a 2010 follow-up, Shain stated that “[a] perfect legal storm is brewing in the area of mental health protection at work. This storm brings with it a rising tide of liability for employers in connection with failure to provide or maintain a psychologically safe workplace” (Shain, 2010, p. 24). Mental injury in the workplace is an increasingly important issue that must be collectively addressed. A lack of attention is more likely to lead to strife, grief, and economic distress for employees and employers alike.

While we have focused mainly on workers’ compensation schemes, other areas of law such as human rights, occupational health and safety, and labour law are also important to note, and each will be discussed in brief below.

Human rights, as Shain notes in his 2009 report, are based on the idea of equal rights for all, which is buoyed by the Charter (p. 61). There is a human rights act in every jurisdiction in Canada, all enumerating grounds on which discrimination is prohibited, one of which is disability. Among other issues that arise when discussing human rights law, two in particular are important to note: 1) “[e]mployers are responsible for the maintenance of workplace environments that are free of, and not poisoned by discriminatory policies and practices” (Shain, 2009, p. 62), and 2) there is a duty to accommodate an employee who has limitations due to disability (Shain, 2009, p. 67). More and more human rights cases are being decided based on issues of mental illness, disability, and injury.

The goal of occupational health and safety legislation is to ensure the workplace is a safe, healthy place for employees. The prevention of injuries and disease is the primary focus of such legislation (Neumann and Sack, 2012, s. 5.2.2.1). To date, most such legislation does not mention or include mental health specifically, other than Saskatchewan (Shain, 2009, p. 70); there seems to be an emphasis on harassment in the workplace as the key form of psychological injury or illness (Shain, 2009, p. 74). As awareness of mental health issues in the workplace improves, it is likely the occupational health and safety schemes in each jurisdiction will have to broaden their language to be more inclusive of unhealthy or unsafe conditions that impact mental health.

In terms of labour law, as Shain states in his 2010 report, “[l]abour [l]aw offers employees covered by collective agreements a strong shield against mental injuries in so far as it allows them access to contractual remedies while the employment relationship is still intact” (p. 15; italic in original).

Members of a union have their own grievance scheme to assist them with complaints about harassment, discrimination, and so forth. They also can rely on provincial labour relations legislation, occupational health and safety acts, and human rights codes (Shain, 2009, p. 54; Shain, 2010, p. 15).

Along with numerous agreements and legislation to bolster claims, employees covered by a collective agreement are able to rely on their union to assist them through the grievance process. Such support may be crucial; when suffering a mental injury, it is often very difficult to act effectively as one’s own advocate. As well, the grievance process itself can be quite draining and onerous, so having a union to assist is extremely beneficial in lessening the overall stressful impact.

United States

What do courts and tribunals say about burnout?

Several courts and tribunals in the United States have dealt with the issue of stress on the job, but relatively few have dealt with burnout. As in Canada, burnout is often referred to as stress, PTSD, or other related disorders.

Some courts and tribunals have found that mental disorders such as stress and burnout are not compensable. In Andolsek v. City of Kirtland, for example, the plaintiff police officer filed a claim with the worker’s compensation board asserting that he was suffering from burnout, PTSD, and depression related to working on a particularly difficult case dealing with cult killings (1994, p. 335). His claim was dismissed by several tribunals and review boards, as well as at the trial level. These adjudicators disallowed his claim because it “alleged a psychiatric condition without physical trauma” (1994, p. 335). The Court of Appeal agreed with the lower court ruling and held that

[p]ursuant to Ohio’s workers’ compensation statutory scheme, compensation is sanctioned for a worker who is disabled by a mental condition resulting from a compensable work-related physical injury … compensation is not available for workers suffering mental conditions caused solely by job-related stress. (1994, pp. 335–6)

Some courts, however, have recognized burnout as a legitimate ailment. In In re Complaint as to the Conduct of Robert J. Loew (1982), a lawyer was brought before a disciplinary committee for failing to follow the Code of Professional Responsibility. The lawyer had delayed working on a client file, failed to file an appeal brief, rarely answered the client’s calls, misled the client about filing documents with the court, and failed to relinquish the file to the client when requested (1982, pp. 808–10). A psychiatrist eventually diagnosed the lawyer as suffering from burnout. While the court does not mention the word itself, the testimony from the psychiatrist was completely on burnout. In the end, the court held “the conduct of the accused was an isolated event caused by emotional difficulties with which he is now dealing effectively” (1982, p. 812). Instead of disbarment, the lawyer was suspended for a minimum of 30 days, and could only resume practice if a psychiatrist provided a written statement stating that the lawyer has dealt with his emotional problems (1982, p. 812). Justice Peterson held that this case should be “required reading for every lawyer, for almost every practicing lawyer becomes involved in situations which create pressures and stresses akin to those which are present in this case” (1982, p. 813). Clearly, burnout in lawyers is not considered unusual by the courts. In fact, two other cases involving the same lawyer were brought to court, but as the incidents in question took place when the lawyer was experiencing the same burnout episode, the courts found that no further sanctions were needed (In re Complaint as to the Conduct of Robert J. Loew, 1983, p. 681; In re Complaint as to the Conduct of Robert J. Loew, 1984, p. 337).

In a similar case, State ex rel. Oklahoma Bar Ass’n v. Schraeder, the judge agreed that the lawyer was experiencing burnout when the actions for which he was brought before a disciplinary committee took place, yet the judge also stated in no uncertain terms that “emotional or psychological disability, though it may serve to reduce the actor’s ethical culpability, does not immunize one from imposition of disciplinary measures that are necessary to protect the public” (2002, p. 580, emphasis removed). In this case, the lawyer was suspended from practice for 30 days.

In Reidy v. Travelers Ins. Co. (1996), the plaintiff claimed his employer discriminated against him based on age and disability. The judge found that the plaintiff was handicapped after being diagnosed with permanent burnout, yet also found that the plaintiff had not proven he was discriminated against due to this handicap. The lower court’s ruling was affirmed on appeal (Reidy v. Travelers Ins. Co. (1997)).

These cases tell us that some courts and tribunals have recognized burnout as a disorder; nonetheless, it is still rare for a claimant to be successful.

What does the legislation say about burnout?

No federal statutes or regulations, or any state statutes deal specifically with workplace burnout. Some state regulations mention workplace or career burnout, but such instances are usually in general terms with no applicable definition or context. In Idaho, Rule 24.13.01, Rules Governing the Physical Therapy Licensure Board, states at section 250.06.b.v.(4).viii that physical therapists will be given continuing professional credit for “[participating in courses that have personal skills topics: career burnout, communication skills, human relations, and other like topics” (2012). Similarly, in West Virginia, Rule 64–85, Alzheimer’s/Dementia Special Care Units and Programs at section 4.1.c.10 states that staff members dealing with Alzheimer’s and dementia patients must complete training that includes “[s]taff burnout prevention.”

As Jauregui and Schnall reiterate, “a number of health conditions, such as burnout … which appear to be the result of exposure to workplace psychosocial stressors, are not recognized as yet as work-related disorders” (2009, pp. 153–6). The authors proffer that there is a reluctance to include disorders such as burnout as workplace injuries as it might overburden the workers’ compensation system, and there is still the strongly held belief that such disorders are mainly the result of individual differences (2009, p. 156). Such beliefs must be overcome before burnout can truly be recognized as a work-related disorder.

The law and stress

Some scholars and psychologists recognize that “[c]hronic exposure to psychosocial stressors in the work environment … can be as noxious to your health as physical demands and chemical toxins” (Dobson and Schnall, 2009, p. 114). In the workers’ compensation system, however, the impact of work on stress has not yet been consistently accepted as compensable.

There are typically three categories of stress claims in workers’ compensation systems: physical-mental, mental-physical, and mentalmental. Physical-mental stress claims are those where a physical injury appears first and leads to a mental disorder (deCarteret, 1994, p. 495). An example of this type would be breaking a leg on the job that did not heal properly, resulting in chronic pain. If a person suffers depression and anxiety related to the chronic pain, his or her mental disorder came about as a result of a physical injury.

A mental–physical claim is when an employee suffers a mental health injury that then results in physical injury or illness (deCarteret, 1994, p. 495). For example, if a worker suffers a heart attack due to a stressful work environment, the physical injury was a result of a mental stimulus. Finally, a mental–mental claim is when some sort of mental distress results in a mental injury or illness (deCarteret, 1994, p. 495). An example would be if a worker suffers harassment at work and then develops a panic disorder (Meriano, 2001, p. 258).

The mental–mental claim is the hardest of the three to prove. Each claim encompasses differing elements of proof, with the mental-mental claim having the most difficult burden. For physical-mental, Meriano explains the elements that must be proved: that there is a mental injury, this mental injury is a result of a work-related physical injury, and there is a causal connection between the two (2001, p. 259). Under the mental-physical injury category, the elements of proof include establishing that the injury happened as a result of the employment, and that there was a causal connection between the mental and physical injury (Meriano, 2001, p. 258).

Proving a mental-mental injury “is the hardest … because it is difficult to present objective data regarding mental injury” (Meriano, 2001, p. 259). Often one must prove a mental injury exists through reliance on medical experts. One must also prove that the employee “was exposed to unusual and extraordinary conditions in [one’s] employment … and … that these unusual and extraordinary conditions were the proximate cause of [one’s] mental breakdown” (Meriano, 2001, p. 259).

Having to prove that conditions were unusual and extraordinary can be extremely demanding. What one person may consider unusual another may consider a standard condition of the work environment. In some jurisdictions, the conditions must also be sudden and unexpected.

As in Canada, the workers’ compensation system in the United States is not a federal matter; each individual state designs their system differently according to their separate laws and policies. While some states allow claims for mental injury, others will not. But as Ivancevich et al. state, “[i]n the case of a psychologically related injury, the courts are reluctant to compensate the worker because it is difficult to establish either the mechanism or the extent of the injury” (1985, p. 62). That being said, they argue that courts are more apt to allow for compensation for mental injury if said injury is a result of a “discrete, identifiable accident” (1985, p. 62) rather than a build-up of stress over time that did not arise out of one particular incident (1985, p. 62). This does not mean, however, that the latter is never successful. Carter v. General Motors (1960) (as discussed in Ivancevich et al.) involved an assembly-line worker whose supervisor criticized and ridiculed him for his difficulty in keeping up with the line. Eventually, the worker, who had evidenced some mental illness in the past, broke down under the strain. The court found that there was no one single incident that led to the breakdown, but rather a series of events taking place over a long period of time (Ivancevich et al., 1985, p. 62). These types of incidents – where there is chronic, long-term stress unassociated with any one particular distressing incident – appear to be the basis of many of the stress-related illness cases now before the courts (Ivancevich et al. 1985, p. 66).

Since the workers’ compensation system varies by state, each state has arrived at its own way of viewing mental-mental claims, but there are similarities:

(1) In some states, mental-mental claims have been held to be compensable if the source of the stress is over and above what one would experience in day-to-day life (i.e. it must be unusual or abnormal) (deCarteret, 1994, p. 496). See, for example, Maine and Michigan (Tucker, 2010, p. 471).

(2) In other states, the source of stress does not have to be over and above what one would generally experience in day-to-day life (deCarteret, 1994, p. 496). See, for example, Kentucky and Utah (Smith, 1995, pp. 230–1).

(3) In some states, a claim for mental-mental injury can only be compensated if the injury was a result of an abrupt and severe event (deCarteret, 1994, p. 496). See, for example, Louisiana (Tucker, 2010, p. 469).

(4) Some states will not compensate for stress claims that developed gradually unless there is a physical manifestation (deCarteret, 2010, p. 496). See, for example, Montana and Florida (Tucker, 2010, p. 469).

(5) The courts in a few states (for example, Delaware) have held that an injury may include a mental injury (Tucker, 2010, pp. 468–69), whereas in states such as Minnesota, mental injury is not included (Tucker, 2010, p. 469).

(6) In some states, “benefits for mental-mental claims [are allowed] so long as the mental impairment is causally related to the stress” (Tucker, 2010, p. 475). See, for example, Alaska and California (Tucker, 2010, p. 475).

One of the first cases in the United States to deal with a work-related mental injury was Bailey v. American General (1955, as discussed in Ivancevich et al.). Two ironworkers were on a high scaffold when it collapsed; one was saved by his cable, but the other fell to his death. The survivor was traumatized – after he returned to work, he would black out, was paralyzed when on the scaffold, had trouble sleeping, and was extremely sensitive to pain. “The court found that he was disabled, that the disability was work related, and that the employer owed him compensation” (Ivancevich et al. 1985, p. 62). Several took this case as a turning point, proving that mental injuries as a result of a workplace incident could be compensable. If one reviews the judgment, however, it shows that while the court did agree that Bailey suffered a mental injury, it was really compensating him for his physical injuries: “[w]hile liberal for its day, this decision, used as a precedent, subsequently denied Texas workers compensation for most stress-related injuries because it based the award on resulting physical rather than psychological illness” (Ivancevich et al., 1985, p. 62). Even though the mental injury was recognized, the worker only received compensation due to the subsequent physical injuries.

There were several changes to workers’ compensation legislation in the 1990s as a result of an increase of stress-related claims. In California, there was an increase of 700 percent between 1981 and 1991 (deCarteret, 1994, p. 497). In the early 1990s, a worker only had to show that the workplace was 10 percent responsible for the psychological injury (deCarteret, 1994, p. 497). This resulted in a huge number of claims, some of which are rather suspect. For example, a doctor who had been found guilty of “fraudulently billing insurance companies” (deCarteret, 1994, p. 497) for millions of dollars claimed that he suffered extreme stress while awaiting his sentence, and was subsequently awarded workers’ compensation benefits (deCarteret, 1994, p. 497). A restaurant in California had shut down “and 115 of its 119 employees filed stress claims. Attorneys had stationed themselves outside the door the day of the lay-offs to intercept the newly unemployed” (deCarteret, 1994, p. 497). Due to this influx of stress-related claims, the laws in California were changed so that work-related stress now “must be the predominant cause of the injury” (DeFrank and Ivancevich, 1998, p. 59; italic in original).

In addition to workers’ compensation claims, two federal acts come into play: the Occupational Safety and Health Act (OSHA) and the Americans with Disabilities Act (ADA). Other federal acts, such as the Federal Employers Liability Act, deal with compensation for workers in specific industries, in this case railway workers. Such acts particular to a specific employment sector will not be discussed in this chapter.

OSHA, enacted in 1970, presented a framework for providing a safe work environment (Harthill, 2010, pp. 1264–5). The act does not specifically include mental illnesses as a work injury; even though some courts have been reluctant to determine that OSHA deals with mental injuries (Abu Al Rub, 2000, p. 133), some argue that OSHA does indeed deal with this issue, as long as the political will is there:

While OSHA has not yet systematically addressed the problem of psychological problems in the workplace, OSHA’s legislative mandate would permit them to tackle this issue through new regulations. … Some scholars have suggested that the lack of psychological regulation is due to the agency’s prioritizing of more traditional, physical health issues and the “perceived exigency” of those problems. (Dillard, 2008, p. 403)

The ADA was enacted in 1990 to provide protections for those who have disabilities. The ADA maintains a structure different from workers’ compensation schemes, compelling employers “to provide equal opportunities for individuals with disabilities concerning employment” (Abu Al Rub, 2000, p. 133). While the ADA does cover impairments that limit how people function, it does not cover all impairments, with some courts ruling that stress does not qualify (Abu Al Rub, 2000, p. 133). While few cases have dealt with stress under the ADA, some argue that ADA could indeed apply in such cases:

courts should … [look] to the manifestations rather than the etiology of disability in determining whether the plaintiff is disabled under the ADA. People can drive each other crazy; hostile, abusive treatment can trigger underlying vulnerabilities; extraordinary stress can be the final straw that breaks the worker’s back. (Stefan, 1998, p. 844; italic in original)

Undoubtedly, when it comes to stress and burnout, the law lags far behind the realities of the modern workplace.

United Kingdom

What do courts and tribunals say about burnout?

As with Canada and the United States, there are few specific cases and tribunal decisions dealing with burnout in the United Kingdom, although several do deal with stress. In Stafford and Rural Homes Ltd v. Hughes, for example, Hughes began suffering from a mental disorder, yet rather than assist him with counselling or other support, his employer sent him a disciplinary letter, leading to Hughes’ complete breakdown. At the tribunal level, it was held “that the Claimant had suffered ‘burnout’ and that the pressures upon him had reached a point where he was unable to tolerate any more pressure” (2009, para. 69). The Employment Appeal Tribunal agreed with the tribunal decision and found that the employer made no reasonable attempts to assist the claimant or make reasonable adjustments.

While a few other cases and tribunal decisions mention burnout as an issue, there has to date been little to no substantive discussion. This is also true of the case law from the Court of Justice of the European Union and the European Court of Human Rights, two extra-territorial courts which exercise some jurisdiction over the UK. Neither side has yet to decide any cases involving burnout in the UK workplace.

What does the legislation say about burnout?

No legislative provisions in the United Kingdom specifically deal with burnout, nor does any legislation emanating from the European Union (EU). However, legislation from both the UK and EU deals with the matter of workplace stress.

The law and stress

As a member state of the EU, the UK must follow and implement EU directives. Directive 89/391/EEC, the EU Health and Safety Framework Directive, mandates that all states must “ensure the safety and health of workers in every aspect related to the work” (1989, art. 5.1). Further, the directive explicitly states that the prevention and elimination of occupational risk is paramount (1989, art. 1.1). Article 6.2.d sets out that employers ought to “adapt … the work to the individual” (1989) (while burnout, stress, PTSD, and other stress-related disorders are not mentioned specifically, as will be shown below, it has been held that such stress-related disorders are workplace risks). The UK executed this directive by implementing various legislation, such as The Management of Health and Safety at Work Regulations 1992; The Management of Health and Safety at Work Regulations 1999; The Health and Safety (Consultation with Employees) Regulations 1996; and The Workplace (Health, Safety and Welfare) Regulations 1992.

Legislators in the UK recognized the problem of stress in the workplace going back to 1974. In various sections throughout the Health and Safety at Work etc. Act 1974, it is stated that a mental condition or illness may be considered damage or personal injury. For example, the definition of “ ‘personal injury’ includes any disease and any impairment of a person’s physical or mental condition” (1974, s. 53(1)).

As such, there is some recognition in the UK of the dangers of workplace stress. But legislation is only one element; a serious question remains as to how courts and tribunals are dealing with the issue.

One groundbreaking case on workplace stress is Walker v. Northumberland County Council. John Walker was a social services officer with the county. He supervised other employees, had an extremely heavy workload, and worked in an area that had an exceedingly high number of difficult cases involving abuse. After a number of years, he experienced a mental breakdown and was off work for several months. Walker wanted to return, but his doctor advised that the only way he could return was if his responsibilities were drastically reduced. Walker spoke to his supervisor, who agreed to make some changes and provide assistance, but ultimately did not agree to split the large district Walker had been handling into two separate districts. When Walker returned to work, only limited temporary assistance was made available; after a few weeks the assistance was removed and Walker was told to ask if he needed more help. Additionally, the workload was not diminished but was in fact heavier, as Walker had to deal with the paperwork that had accumulated during the time he was off sick. Walker suffered another breakdown six months after his return, and had to cease work permanently. His employer dismissed him due to his ill health, and Walker sued for a breach of duty of care.

The court held that a second breakdown was foreseeable since Walker was essentially provided no assistance and no reduction in work. The judge noted,

[t]here has been little judicial authority on the extent to which an employer owes to his employees a duty not to cause them psychiatric damage by the volume or character of the work which the employees are required to perform. It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employer as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer’s duty of care or from the co-extensive implied term in the contract of employment. (1994, p. 749)

The court recognized that psychiatric illnesses ought to be included with physical illnesses when contemplating and discussing workplace health and safety; however, the judge only dealt with the second breakdown, holding that the first was not something that could have been forecast by the managers, as there was no indication beforehand that Walker could not handle the work. Hence, it was held that the employer did not breach its duty of care to Walker prior to his first breakdown. After Walker returned to work with no assistance and no reduction in work, it was reasonably foreseeable that he would suffer another breakdown. The negligence in not changing the work situation of Walker led to a breach of duty of care, and the employer was liable for Walker’s second breakdown.

Since this case, other cases dealing with workplace stress have been decided. In Armstrong v. Secretary of State for the Home Department, for example, the judge followed the principles identified in Walker and outlined a three-pronged analysis to determine whether or not psychiatric injury was reasonably foreseeable on the part of the employer:

i) Did the work which the claimant was required to do create a reasonably foreseeable risk of psychiatric injury?

ii) If so, was the system of work in place a reasonable one?

iii) If there was a reasonably foreseeable risk of psychiatric injury and the system of work was not reasonable, did the failure to adopt a reasonable system cause the injury of which the claimant complains? (2001, para. 17)

While it was ultimately determined that the employer in Armstrong could not have reasonably foreseen the psychiatric injury, resulting in the claim being dismissed, the principles as founded in Walker were reaffirmed.

In 2002, the England and Wales Court of Appeal (Civil Division) released the decision of Hatton v. Sutherland and other Appeals, which joined together four appeals from four separate judgments. Each appeal was from employers who had been found liable for their employees’ psychiatric illness resulting from workplace stress. The Court of Appeal allowed the appeals in three cases, dismissed the appeal in one. In the cases where the appeals were allowed (the plaintiffs of Hatton, Barber, and Bishop), it was held that it was not reasonably foreseeable that the employees would suffer a psychiatric illness due to work-related stress. In the case of plaintiff Jones, however, it was found that the psychiatric illness she suffered was reasonably foreseeable:

there was evidence before the judge which entitled him to reach the factual conclusions he did, and from those to conclude that the indications of risk to mental health were strong enough for a reasonable employer to think that he should do something about it, not least because senior management did think that there was something they should do. (2001, para. 210)

At paragraph 43, the judges established a thorough 16-point assessment for determining liability for stress in the workplace:

From the above discussion, the following practical propositions emerge:

(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. … The ordinary principles of employer’s liability apply. …

(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable … this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors). …

(3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. … An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability. …

(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health. …

(5) Factors likely to be relevant in answering the threshold question include:

(a) The nature and extent of the work done by the employee. … Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?

(b) Signs from the employee of impending harm to health. … Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?

(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching inquiries of the employee or seek permission to make further inquiries of his medical advisers. …

(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it. …

(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk. …

(9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties. …

(10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this. …

(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. …

(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job. …

(13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care. …

(14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm. …

(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment. …

(16) The assessment of damages will take account of any preexisting disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event. (2002)

After studying these principles, it is clear employers have a duty of care to prevent psychiatric injuries, yet the enumerating circumstances listed may lead one to hold that the test favours the employer. That said, it is certainly not impossible for claimants to win their case, as we saw with the Jones claimant in the Hatton case.

As further proof, one of the losing claimants appealed further to the House of Lords. In Barber v. Somerset County Council, the court overturned the appeal court’s decision and reinstated the trial court decision. It found that the claimant’s psychiatric illness due to stress in the workplace was reasonably foreseeable by the employer. Nonetheless, even the House of Lords admits that the case was not at all straightforward:

My Lords, the issue of breach of the council’s duty of care to Mr Barber was in my view fairly close to the borderline. It was not a clear case of a flagrant breach of duty any more than it was an obviously hopeless claim. But the judge, who saw and heard the witnesses … came to the conclusion that the employer was in breach of duty, and in my view there was insufficient reason for the Court of Appeal to set aside his finding. The Court of Appeal was concerned about the timing of the breach, but for my part I do not think there is much room for doubt about that. The employer’s duty to take some action arose in June and July 1996, when Mr Barber saw separately each member of the school’s senior management team. It continued so long as nothing was done to help Mr Barber. The Court of Appeal evidently considered that Mr Barber was insufficiently forceful in what he said at these interviews, and that he should have described his troubles and his symptoms in much more detail. But he was already suffering from depression … What the Court of Appeal failed to give adequate weight to was the fact that Mr Barber, an experienced and conscientious teacher, had been off work for three weeks (not two weeks, as the Court of Appeal thought) with no physical ailment or injury. His absence was certified by his doctor to be due to stress and depression. The senior management team should have made inquiries about his problems and seen what they could do to ease them, in consultation with officials at the council’s education department, instead of brushing him off unsympathetically … or sympathising but simply telling him to prioritise his work. (2004, para. 67)

The employer ought to have taken some action once the claimant’s illness became apparent, and its lack of action led to it being found liable. Once an employer becomes aware of a potential stress-related problem, it is legally required to make changes in the work environment so as to reduce stress and adequately support the worker (Cox, 2004, p. 36).

While some have been successful in their stress claims, it is an uphill battle with many claimants failing to prove their case. Even in a jurisdiction where both legislation and the courts have recognized that stress may result in workplace injury, it is difficult for claimants to have their employers held liable.

As Barrett has stated, “it is apparent that the victim of stress faces no easy task if intending to claim compensation from an employer for psychiatric stress” (2004, p. 348). Barrett does hold out hope that an employer’s duties regarding psychiatric injury will become clearer once the Health and Safety Executive (HSE) releases its management standards (2004, p. 349). The HSE is an arm’s length non-departmental government body created by the Health and Safety at Work etc. Act 1974, and one of its duties is to enforce the act (HSE, Enforcing Health and Safety). It also drafts various documents and standards. While the standards are not compulsory, by following them organizations “will normally be doing enough to comply with the law” (HSE, 2007, p. 2). The Management Standards for work-related stress outline the main sources of stress at work (demands, control, support, relationships, role, change) and suggest ways organizations can overcome such conditions (HSE, What are the Management Standards?). These standards have been in place for only a few years, but their implementation has been a challenge. Mellor et al. found that barriers to implementation include organizational change and upheaval, weak management support, a dearth of expertise, inadequate resources or lack of resources, lack of guidance, and outside interference (2011, pp. 1042–4). While the standards are a good start, much more needs to be done.

Conclusion

Burnout and stress are real problems that negatively affect everyone touched by them. Why, then, when there appears to be so much evidence on the prevalence of such illnesses in society, does it seem employers, governments, courts, and tribunals are reluctant to recognize it? Along with the fear of increased workers’ compensation claims or damages that may be awarded in a civil action, the changing nature of work is likely a significant factor:

The emergence of mental injury as a legal cause of action … is not an isolated occurrence but rather an expression of a profound and progressive evolution of the employment relationship itself.

Changes in attitudes and beliefs concerning the responsibilities of employers with regard to the protection of employee mental health, which have taken 150 years to evolve, are not likely to be easily turned back or reversed. (Shain et al. 2011, p. 22)

The nature of work in the western world has changed dramatically over the last 50 + years. Where people once worked on farms or in manufacturing, the majority now work in offices or cubicles for 8 + hours per day, often surrounded by other people for the majority of the time. The pressures of employment have changed – from working on a fast-moving manufacturing line or bringing in the crops (in both instances using loud, hazardous equipment), to sitting for hours a day in front of a computer working in close contact with co-workers and supervisors. While there still exist physical strains in office jobs (e.g., carpel tunnel syndrome), there is an increasing amount of mental strain as well. Working with others can be a wonderful experience and can make the job enjoyable, but if other workers or supervisors make the day-to-day work miserable or stressful, the job then becomes a source of strain that can easily lead to a mental injury or illness.

Another factor is the increasing work duties demanded of employees after positions are purposefully not filled or the workforce is actively downsized, resulting in the same amount of work being done by fewer employees. This may not cause employees much harm short-t erm, but when such changes become long-term or permanent, burnout can certainly rear its ugly head.

While society continues to recognize the stress-related issues that arise with this newer form of work, governments and courts are much slower in acknowledging workplace burnout and stress as real problems that need to be addressed and compensated. As more people learn about burnout and its consequences, it will eventually be recognized in the law as an injury or illness that can drastically impact employee health. Until that day, however, workers will have to keep fighting to have burnout and related illnesses recognized and taken seriously. Only when this happens will legislation and the courts truly protect workers and, therefore, give them the ability to truly advocate for their rights for a safe and healthy workplace.

References

Abu Al Rub, R. Legal aspects of work related stress in nursing: Exploring the issues. Official Journal of the American Association of Occupational Health Nurses. 2000; 48(3):131–135.

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

Andolsek v. City of Ktrtland, 99 Ohio App. 3d 333, 650 N.E. (2d) 911 (1994).

Armstrong v. Secretary of State for the Home Department, [2001] All E.R. (D.) 83 (Q.B.).

Bailey v. American General, 154 Tex. 430, 279 S.W. 2d 315 (Supreme Ct. 1955).

Barber v. Somerset County Council, [2004] UKHL 13, [2004] 2 All E.R. 385.

Barrett, B. Notes: Employers’ liability for stress at the work place: Neither tort nor breach of contract? Industrial Law Journal. 2004; 33(4):343–349.

Bisson, J.I. Post-traumatic stress disorder. British Medical Journal. 2007; 334(7597):789–793.

Blackwell, R., Business leaders cite skilled-labour shortage as priority The Globe and Mail. Retrieved from http://www.theglobeandmail.com/report-on-business/careers/management/c-suite-surveys/business-leaders-cite-skilled-labour-shortage-as-priority/article2358388/, 4 March 2012

Bronstein, A. International and Comparative Labour Law: Current Challenges. Basingstoke, United Kingdom: Palgrave Macmillan/International Labour Organization; 2009.

Canada (Royal Canadian Mounted Police) v. Rees, 2005 NLCA 15, 246 Nfld. & P.E.I.R. 79.

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.

Carter v. General Motors, 361 Mich. 577, 106 N.W. 2d 105 (Supreme Ct. 1960).

Casserley, T.B., Megginson, D. Learning from Burnout: Developing Sustainable Leaders and Avoiding Career Derailment. Oxford, UK: Butterworth-Heinemann; 2009.

Chase, S., Jang, B., McKenna, B. Strike two: Ottawa steps in to end labour dispute at Canada Post. The Globe and Mai. A9, 2011.

Children’s Aid Society of Cape Breton-Victoria v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2005 NSCA 38, 230 N.SR. (2d) 278.

Cox, N. Workplace stress: What the law says. Director. 2004; 58(3):36.

deCarteret, J.C. Occupational stress claims: Effects on workers’ compensation. Official Journal of the American Association of Occupational Health Nurses. 1994; 42(10):494–498.

Decision No. 397/92, [1993] O.W.C.A.T.D. No. 70.

Decision No. 1030/89, [1991] O.W.C.A.T.D. No. 903, 20 W.C.A.T.R. 46.

DeFrank, R.S., Ivancevich, J.M. Stress on the job: An executive update. Academy of Management Executive. 1998; 12(3):55–66.

Dillard, J. A slaughterhouse nightmare: Psychological harm suffered by slaughterhouse employees and the possibility of redress through legal reform. Georgetown Journal on Poverty Law and Policy. 2008; 15(2):391–408.

Directive 89/391/EEC, Health and Safety Framework Directive (1989) Official Journal No. L183/1. Retrieved from: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1989:183:0001:0008:EN:PDF

Dobson, M., Schnall, P.L. From stress to distress: The impact of work on mental health. In: Schnall P.L., Dobson M., Rosskam E., eds. Unhealthy Work: Causes, Consequences, Cures. Amityville, New York: Baywood Publishing; 2009:113–132.

Dowling v. Prince Edward Island (Workers’ Compensation Board) (1994), 124 Nfld. & P.E.I.R. 358, 7 C.C.E.L. (2d) 157 (P.E.I.C.A.).

England, G. Individual Employment Law, 2nd ed. Toronto, Ontario: Irwin Law; 2008.

Entner v. Swissair Transport Co. (24 November 1999), Montreal, Quebec, Doc. No. 500-05-006402-950, J.E. 2000–130.

Federal Employers Liability Act, 45 U.S.C. § 51 et seq.

Greenhouse, S. County judge strikes down some restrictions on public unions in Wisconsin law. The New York Times, A16. Retrieved from: http://www.nytimes.com/2012/09/15/us/judge-strikes-parts-of-wisconsin-union-law.html, 15 September 2012.

Government Employees Compensation Act, R.S.C. 1985, c. G-5.

Gunderson M., Hyatt D., eds. Workers’ Compensation: Foundations for Reform. Toronto, Ontario: University of Toronto Press, 2000.

Harthill, S. The need for a revitalized regulatory scheme to address workplace bullying in the United States: Harnessing the Federal Occupational Safety and Health Act. University of Cincinnati Law Review. 2010; 78(4):1250–1306.

Hatton v. Sutherland and other Appeals, [2002] EWCA Civ. 76, [2002] 2 All E.R. 1.

Health and Safety at Work etc. Act 1974 (UK), c. 37.

Health and Safety Executive Managing the Causes of Work-related Stress (2nd ed.). Surrey, United Kingdom: Health and Safety Executive. Retrieved from. http://www.hse.gov.uk/pubns/priced/hsg218.pdf, 2007

Health and Safety Executive. Enforcing Health & Safety. Retrieved from: http://www.hse.gov.uk/enforce/

Health and Safety Executive. What are the Management Standards? Retrieved from: http://www.hse.gov.uk/stress/standards/index.htm

Howlett, K. Teachers unions vow action after Ontario bill passed. The Globe and Mail. Retrieved from. http://www.theglobeandmail.com/news/politics/teachers-unions-vow-action-after-ontario-bill-passed/article4536303/, 11 September 2012

Idaho Administrative Code: Occupational Licenses: Rules Governing the Physical Therapy Licensure Board, Rule 24.13.01, subrule 250.06.b.viii (2012) Retrieved from: http://adminrules.idaho.gov/rules/current/24/1301.pdf

Industrial Accident Victims’ Group of Ontario and Community Legal Education Ontario. Workers’ Compensation: A Manual for Workers’ Advocates. (3rd ed.). Toronto, Ontario: Industrial Accident Victims’ Group of Ontario and Community Legal Education Ontario. Retrieved from: http://www.cleo.on.ca/english/wcManual/cover.htm, 2006.

In re Complaint as to the Conduct of Robert J. Loew, 292 Or. 806, 642 P. 2d 1171 (Supreme Ct. 1982).

In re Complaint as to the Conduct of Robert J. Loew, 294 Or. 674, 661 P. 2d 922 (Supreme Ct. 1983).

In re Complaint as to the Conduct of Robert J. Loew, 296 Or. 328, 676 P. 2d 294 (Supreme Ct. 1984).

Ivancevich, J.M., Matteson, M.T., Richards, E.P., III. Who’s liable for stress on the job? Harvard Business Review. 1985; 63(2):60–62. [66, 70–2].

Jauregui, M., Schnall, P.L. Work, psychosocial stressors, and the bottom line. In: Schnall P.L., Dobson M., Rosskam E., eds. Unhealthy Work: Causes, Consequences, Cures. Amityville, New York: Baywood Publishing; 2009:153–167.

Labrie et C.S.S.T. – Laurentides et Les Planchers 5 Étoiles Enr. (11 mai 1999), C.S.S.T. No. 113560619–1 (Quebec). Retrieved from: http://www.jugements.qc.ca/

Lippel, K., Sikka, A. Access to workers’ compensation benefits and other legal protections for work-related mental health problems: A Canadian overview. Canadian Journal of Public Health. 2010; 101(Supplement):S16–S22.

Meriano, C. Compensation for stress and mental injury under workers’ compensation. Work. 2001; 17:257–261.

Maslach, C.Burnout: The Cost of Caring. New Jersey: Prentice-Hall: Englewood Cliffs, 1982.

Mealer, M., Burnham, E.L., Goode, C.J., Rothbaum, B., Moss, M. The prevalence and impact of post traumatic stress disorder and burnout syndrome in nurses. Depression and Anxiety. 2009; 26(12):1118–1126.

Mellor, N., Mackay, C., Packham, C., Jones, R., Palferman, D., Webster, S., Kelley, P. ‘Management standards’ and work-related stress in Great Britain: Progress on their implementation. Safety Science. 2011; 49(7):1040–1046.

Neumann, P., Sack, J., eText on Wrongful Dismissal and Employment Law. 1st ed. Lancaster House, Toronto, Ontario, 2012. Retrieved from. http://www.canlii.org/en/commentary/wrongfuldismissal/

Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504.

Occupational Safety and Health Act, 29 USCS § 651 et seq.

Ojeda Avilés, A. The “externalization” of labour law. International Labour Review. 2009; 148(1–2):47–68.

Plesner v. British Columbia (Hydro and Power Authority), 2009 BCCA 188, 308 D.L.R. (4th) 624.

Re Morrison Estate, 2003 NSCA 103, 218 N.S.R. (2d) 53.

Reidy v. Travelers Ins. Co., 928 F. Supp. 98 (D. Mass. 1996).

Reidy v. Travelers Ins. Co., 107 F. 3d 1 (Table) (1st Cir. 1997).

Sandborn, T., Despite new rules, mentally injured and bullied workers still disadvantaged: Critics The Tyee. Retrieved from. http://thetyee.ca/News/2012/07/26/Mentally-Injured-Workers/, 26 July 2012

Shain, M. Stress at Work, Mental Injury and the Law in Canada: A Discussion Paper for the Mental Health Commission of Canada. Ontario and Alberta: Mental Health Commission of Canada. Retrieved from: http://www.mentalhealthcommission.ca/English/system/files/private/Workforce_Stress_at_Work_Mental_Injury_and_the_Law_in_Canada_ENG_0.pdf, 2009.

Shain, M. Tracking the Perfect Legal Storm: Converging Systems Create Mounting Pressure to Create the Psychologically Safe Workplace. Ontario and Alberta: Mental Health Commission of Canada. Retrieved from: http://www.mentalhealthcommission.ca/English/system/files/private/Workforce_Tracking_the_Perfect_Legal_Storm_ENG_0.pdf, 2010.

Shain, M., Arnold, I., GermAnn, K. Tracking the Perfect Legal Storm: Converging Systems Create Mounting Pressure to Create the Psychologically Safe Workplace. Ontario and Alberta: Mental Health Commission of Canada. Retrieved from: http://www.mentalhealthcommission.ca/English/system/files/private/Workforce_The_Road_to_Psychological_Safety_ENG_0.pdf, 2011.

Shortt, S.E.D. The compensability of chronic stress: A policy dilemma for the Ontario workers’ compensation board. Canadian Public Policy. 1995; 21(2):219–232.

Smith, C.M. Workers’ compensation: Compensation for mental-mental claims. American Journal of Trial Advocacy. 1995; 19(1):229–232.

Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 93 N.R. 183.

Stafford and Rural Homes Ltd. v. Hughes (2009), 107 B.M.L.R. 155 (U.K.).

State ex rel. Oklahoma Bar Ass’n v. Schraeder, 51 P. 3d 570 (Okla. Supreme Ct. 2002).

Stefan, S. “You’d have to be crazy to work here”: Worker stress, the abusive workplace, and title 1 of the ADA. Loyola of Los Angeles Law Review. 1998; 31(3):795–846.

Svirsky, G. The division of labour: An examination of certification requirements. Osgoode Hall Law Journal. 1998; 36(3):567–596.

The Health and Safety (Consultation with Employees) Regulations 1996, S.I. No. 1996/1513.

The Management of Health and Safety at Work Regulations 1992, S.I. No. 1992/2051.

The Management of Health and Safety at Work Regulations 1999, S.I. No. 1999/3242.

The Workplace (Health, Safety and Welfare) Regulations 1992, S.I. No. 1992/3004.

Tucker, A. A matter of fairness: How denying mental-mental claims frustrates the central purposes of workers’ compensation law. The Journal of Legal Medicine. 2010; 31(4):467–484.

Van Alphen, T. ‘Moment of truth’ for unions; Secret paper on massive proposed merger says labour groups must reinvent themselves or die. The Toronto Star. A1, 2012.

Walker v. Northumberland County Council (1994), [1995] 1 All ER 737 (Q.B.).

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, 123 Man. R. (2d) 1.

West Virginia Legislative Rule: Bureau for Public Health: Alzheimer’s/Dementia Special Care Units and Programs, Rule 64–85, subrule 4.1.C.10 (2006). Retrieved from: http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=8999andFormat=PDF

Workers’ Compensation Act, R.S.B.C. 1996, c. 492.

Workers’ Compensation Act, R.S.P.E.I. 1988, c. W-7.1.

Workers’ Compensation Act, S.N.S. 1994–1995, c. 10.

Workers’ Compensation Board of Nova Scotia. Compensability of Stress as an Injury Arising out of and in the Course of Employment – Government Employees Compensation Act (GECA): Policy 1.3.6. (2005). Retrieved from: http://www.wcb.ns.ca/policy/index_e.aspx?DetailID=1511.

Workplace Health, Safety and Compensation Act, R.S.N.L. 1990, c. W-11.

Workplace Health, Safety & Compensation Commission of Newfoundland and Labrador. Policies & Procedures: Entitlement, Mental Stress, Policy No. EN-18 (1999) Retrieved from: http://www.whscc.nf.ca/policiesandprocedures.whscc

Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A.

WorkSafeBC. Compensation for Chronic Stress: A Briefing Paper. Retrieved from: http://www.worksafebc.com/regulation_and_policy/archived_information/royal_commission_briefing_papers/assets/pdf/stress.pdf, 1998.

WorkSafeBC. Discussion Paper: Chronic Stress. Retrieved from: http://www.worksafebc.com/regulation_and_policy/policy_practice_consultative_committee/meeting_calendar/august09/assets/chronicstress.pdf, 2009.

WorkSafeBC. Rehabilitation Services & Claims Manual, Volume II, Policy 13.30. Retrieved from: http://www.worksafebc.com/publications/policy_manuals/rehabilitation_services_and_claims_manual/volume_ii/assets/pdf/rscm_ii_sum0907.pdf, 2009.

WorkSafeNB: Federal Government Employees, Policy 21–011, subrule 3.1. (2011) Retrieved from: http://www.worksafenb.ca/pdf/resources/policies/21-011.pdf

Zorn-Smith v. Bank of Montreal, [2003] O.T.C. 1060, 31 C.C.E.L. (3d) 267 (Superior Ct.).