Employers May Be Legally on the Hook for Mental Injury

By: Canadian OH& S News
October 12, 2010
CALGARY (Canadian OH& S News)

A new report from the Calgary-based Mental Health Commission of Canada (MHCC) suggests that employers who neglect psychological safety in the workplace could be legally liable for mental injury inflicted on workers.

Entitled “Tracking the Perfect Legal Storm,” the report was released on September 30 and written by Martin Shain, PhD, a lawyer and principle of the Neighbour@Work Centre, a workplace e-health consulting firm in Caledon, Ontario. It argues that the duty to provide workers with a psychologically safe workplace is being reinforced by several areas of law.

A psychological injury is “when somebody is unable to function, either in their personal life or their work life, due to an injury that resulted from pressure
or stress or otherwise workplace-related issues,” explains Mary Ann Baynton, a member of the MHCC’s work force advisory committee and president of Mary Ann Baynton & Associates, a Waterdown, Ontario-based management consulting firm.

The report notes that employers are faced with a growing number of legal pressures to provide a psychologically safe workplace “in which every practical effort is made to avoid reasonably foreseeable injury to the mental health of employees.”

Dr Shain identifies seven areas of law which may result in liability for employers:

• Human rights, in which accommodation and remedying unsafe work environments have become an employer’s responsibility;
• Workers’ compensation, which is awarding more claims to workers suffering from gradual or chronic stress;
• Tort law, which covers stringent work organization requirements to avoid reasonably foreseeable harm to mental health;
• The common law employment contract, which is being interpreted as containing implied terms for the protection of employee mental health;
• Labour law, which imposes a duty to act in a fair and reasonable manner and include psychological safety within the realm of a safe system of work;
• Occupational health and safety law, which is becoming more consistently applied to mental as well as physical well-being in the workplace; and,
• Employment standards law, where, especially in Quebec, judges are becoming stricter in their definitions of harassment and moral injury.

Workload/stress should still be viewed as risk

Each worker has different thresholds for workload and stress, Baynton acknowledges. But she says that like asbestos, whether or not a hazard impacts the worker, it must still be considered to be a risk. “Demeaning someone or pressuring someone or otherwise causing harm with demands or pressures is going to make some people unwell,” she argues.

Kathy Jurgens, program manager for Mental Health Works, a corporate training program offered by the Canadian Mental Health Association in Toronto, says that a changing view of the workplace is allowing the concept of psychological safety to take hold.

“If you think of the younger generation, they have different expectations of what work means to them and what they’re willing to engage in for a paycheque,” she points out, adding that younger workers are less likely to accept a workplace that expects chronic overtime and unreasonable demands.
“I think it’s long overdue,” Jurgens says of the current approach to psychological safety, suggesting that mental injury in the workplace has been a problem for hundreds of years.

Landon Young, a lawyer with SBH Management Lawyers in Toronto and chair of the firm’s occupational health and safety branch, agrees that an employer is liable for mental injury when the injury is caused by intentional or reckless behaviour. “So it’s either got to be deliberate or really extreme to the point where [an employer] must know or ought to know that it’s going to result in mental suffering.”

The difficulty, he suggests, is proving that a mental injury has occurred. “Under the basic burden of proof that applies to civil cases, the employee would
have to prove damages,” he says. “In most cases, I would think you’re going to need some kind of medical evidence to show that there’s suffering.”

Baynton suggests that in order to mitigate mental injury in the workplace, it is crucial to embed psychological safety into regular oh&s systems. She reports that last December, the MHCC’s work force advisory committee met to discuss the possibility of a standard for psychological safety, a motion that was met with unanimous support.

“We don’t want it to be punitive,” she says. “We want it to be informative, so that employers know what it is that contributes to psychological risk and
what steps they can take to change that.” 

Reproduced from http://www.ohscanada.com/issues/story.aspx?aid=1000388447