Last week’s racing at Ascot was a celebration of glorious self-indulgence — society taking time out to show off and chill out. Behind the scenes, however, from jockeys and trainers through to catering staff and retailers, one suspects that stress was taking its toll.

In fact, according to David Gibson, of Dickinson Dees, the professional sporting world is a frequent source of claims for stress and bullying. “But it is a grey area,” he says. “If someone is underperforming and is frequently told so, at what point does it become harassment?”

The publication last week by the Health and Safety Executive (HSE) of its draft management standards (also described by some as a riskassessment tool) may help out. It suggests methods that employers could use to reduce stress in the workplace and it comes after a decade of increasing numbers of stress claims and a series of large payouts to victims.

“We are seeing a rising number of stress claims largely based on work overload and bullying,” says Alison Kerr, of Russell Jones & Walker, which acts for many trade unions.

That comes as no surprise. But what may concern employees is that it seems increasingly difficult for stress victims to prove their case before the courts.

As Colina Greenway, of KLegal, points out: “There is a bit of a mismatch of perceptions based on reports of large payouts in exceptional cases. In fact, recent judgments by the courts have clarified the circumstances in which an employer can be held liable for an employee’s stress- related psychiatric illness and the bar appears to be lifted higher.”

This “raising of the bar” is in three areas. First, the courts reckon that no occupation is intrinsically stressful. In other words, if you become a fireman, a soldier or even a teacher (one of the commonest sources of claims) you cannot base your claim on the nature of the work. No one forced you to do the job.

Secondly, for an employer to be held responsible, the employee’s illness must have been reasonably foreseeable. In other words, if a member of staff’s psychological collapse comes with no warning signs then the courts will not hold the employer to account for it.

“The problem is that in British culture the done thing is to bottle things up, keep quiet and keep going,” Tina Elliott, of Capsticks, says. But that is not going to help your case if you come to court. You need to have given your boss ample warning that the way you are being treated is a real problem.

The third factor — and this could be a minefield for many people — is that the courts will take an in-depth look at the whole of your life to tease out all the personal factors involved. “Every aspect of the claimant’s life will be examined with a fine-tooth comb,” Kerr explains. “You will be put through the mill and your life raked over in detail. I warn clients that this could be very tough for them.”

So stressful is this experience likely to be that some claimants back off at this point simply because they cannot cope with the demands of the court process. “I recently had a client with a very strong case who withdrew because he could not face going through with it,” Kerr says. In other words, we may have a Catch-22 in which the only people able to handle the rigours of a court appearance will be, by definition, too robust to have a convincing claim for stress-related psychiatric problems.

Speaking from the employer’s perspective, Greenway says that there may be too many cases anyway where stress is “thrown into the pot” to spice up a claim for unfair dismissal. The recent clarification of the law could mean that the number of claims for stress will fall as lawyers advise claimants of the difficulty of demonstrating a causal link between conditions in the workplace and their mental problems.

As to the HSE’s latest management guidelines, employment lawyers are still mulling over just how significant they will be.

According to David Gibson, they outline what is already recognised as human resource best practice. “They provide a useful checklist of steps that an employer can take — in terms of training, grievance procedures, employee care lines, clarity of job roles and so on — to satisfy an employer’s duty of care towards their staff.”

On the part of the employee, meanwhile, the absence of these procedures and policies at their place of work could be used to back up claims of negligence. As Karen Seward, of Allen & Overy, points out: “It is vital that employers keep abreast of developments in this area as many of the factors that contribute to unacceptable levels of stress cannot be removed or addressed overnight. Employers should, at the very least, examine these standards and calculate in a rough-and-ready way whether their organisation needs to start work in particular problem areas.”

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