CPA Bulletin

www.cpa.uk.net CPA Bulletin > August 2018 37 LEGAL: 2 Mental health: Ensuring a healthy return to work For employees who have struggled, or are continuing to struggle with mental health issues, the prospect of them returning to work, after a period of sick leave in connection with mental health issues, can be daunting. But for the member of staff who does return to work can make a significant step towards their recovery. However, although the return to work may make them feel better, the on-going issues they experience does not end on that day, but can continue daily for some period after. So it is very important, together with a legal duty for both employer and employee to effectively (and reasonably) manage the person’s return to work. The mental health charity, Mind, has the following useful tips on how a person’s return to work can be managed better: • The employee can keep in touch with colleagues by using social media. This can be a beneficial way of communicating, if the employee doesn’t feel ready to see them face-to-face. • If your company has an in-house magazine, the employee can be put on the mailing list, (if they’re not already), so they can be kept up-to-date with company policy, or interest stories connected with the business and staff. • The employer / employee can arrange a date between them for the employee to drop in to work before their ‘official’ return. • It can be suggested that the employee follows a routine in the time leading up to their return, i.e. going to sleep and rising the same hours as if they were going to work. Employer support As an employer, there are lots of practical ways you can assist the employee with their return: • Enable them to return to work gradually - for example, by starting part-time as part of a ‘phased return’ to work. • Make a schedule with the employee for their first week back. Plan what they will be doing, where and when, so they know what to expect. Arrange for the employee to catch up on any training they have missed. • If the employee is worried about walking into a busy office on their own, arrange for someone to meet them at the front desk. • Schedule regular catch ups between the employee and their manager to talk about how they are getting on. By following these simple steps can benefit both the employee and the employer. For more information on this subject, go to the Mind website: www.mind.org.uk/workplace/mental- health-at-work/ Supreme Court redefines Personal Injury claims The Supreme Court has redefined the scope of a personal injury claim, which can now include an employee’s adverse reaction to an allergy, - from a product or by-product which the employer uses -, and where the employer has failed to adequately protect the employee(s) from them. The case involved Mr Dryden and two others who were employed by Johnson Matthey, who make catalytic converters, and use platinum salts during the process. The court found that Johnson Matthey had failed to keep the factory appropriately clean, and so was in breach of health and safety regulations, as well as a failure in its duty of care at common law. As a result, the three workers developed an adverse reaction to platinum salts. As soon as the company discovered that the three workers suffered from this reaction, they were no longer allowed to work in that part of the factory. One took up a different role at the company, at reduced pay; while the other two had to leave to find alternative work. As such, all three argued that they had suffered a financial loss as a result of Johnson Matthey’s breach. The question for the Supreme Court was whether an adverse reaction could constitute an action of personal injury for which the employees could claim. Negligence and a breach of duty by the employer are not grounds for action against the employer. The three employees would have to show a breach of a duty of care, but also that they have suffered an actionable physical injury. So an economic loss arising from a physical injury can be recovered in tort, but pure economic loss without any physical injury cannot. The adverse reaction to the salts was harmless to these individuals, although further exposure could cause irritations and breathing difficulties. Both the High Court and Court of Appeal found in favour of the employer; however, the Supreme Court overturned those decisions. Lady Black, giving the unanimous judgment in the Supreme Court said that the employees’ “bodily capacity for work has been impaired and they are therefore significantly worse off”. They had “suffered actionable bodily damage, or personal injury, which, given its impact on their lives, is certainly more than negligible”. In coming to its decision, the Supreme Court concluded that the employees’ on-going risk to an adverse reaction to platinum salts, meant that they were forced to change their lives in order to avoid such risks in future.