The scene is being set for a dramatic transformation of employer liability in Canada.
In the near future, employers could be held liable for the psychological harm caused to employees who are treated unfairly by employers, said Martin Shain, a senior scientist with the Centre for Addiction and Mental Health in Toronto.
There are members in the scientific community who maintain psychological damage done by employers is no less harmful than exposure to toxic substances and therefore employers should be held liable for inflicting psychological harm on employees. Shain uses the term “psychotoxic” to describe power-based relationships that are harmful to employees.
Negative working conditions — specifically those characterized by high demands and low control or high effort with little reward — are predictive of a wide range of negative outcomes including anxiety and depression, increased substance abuse and cardiovascular problems, accident rates and even increased infectious diseases and some forms of cancer, said Shain.
“Unfairness can have a very powerful impact on people’s mental health,” said Shain. “A chronic lack of control actually effects the brain at the cellular level,” he said.
Now that science can prove this, “We’re getting to the point where we can say there are consequences that are predictable.”
Is enough known about this kind of harm to say the consequences of unfair work environments are reasonably foreseeable, and therefore a responsibility of the employer to prevent? “I’m arguing we do,” said Shain.
Not only that, but there are already legal precedents set in other parts of the world of employers being held liable for psychological harm done to employees and there are legal experts who believe Canada could be ripe for similar precedent-setting cases, particularly since in most instances employees suffering from excessive stress can no longer apply for workers’ compensation.
Shain cites one leading Canadian legal text book which says employers “should exercise their authority with due regard for the personal dignity and autonomy of those who are subordinate to them.” And in the 1997 case, Lloyd v. Imperial Parking Ltd., the judge stated, “A fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity…This appears to be part of the trend to establish a duty upon an employer to treat employees ‘reasonably’ in all aspects of the labour process.”
In a precedent setting case in England in 1995, Walker v. Northumberland County Council, the judge applied the same thinking behind due diligence — that the employer has a responsibility to protect employees from physical harm — and took it a step further, stating, “there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer’s duty of care.”
Toronto-based employment lawyer, Lynn Bevan agrees the terms of employer liability in Canada could soon look very different, pointing out that the courts have already ruled employers have an obligation to treat employees "fairly" during a dismissal.
"In Wallace v. United Grain Growers Ltd., the Supreme Court of Canada held that employers must act in good faith and be fair when they dismiss an employee," she said.
The Court held that employers must "be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or in bad faith by being, for example, untruthful, misleading or unduly insensitive."
"If the Court was prepared to impose this duty at dismissal, it would not be much of a stretch to extend it to active employment," she added.
Shain said the Walker case is important because it illustrates that in a stress claim, enough evidence can be presented to prove foreseeability and the causation of harm.
This duty to avoid psychiatric harm goes beyond the duty of due diligence as it is generally applied in Canada. “I prefer to use the term ‘constructive diligence’ to reflect the more proactive, less defensive notion of a duty to foresee and prevent harm that might be reasonably anticipated,” said Shain.
“One labour lawyer told me this is just waiting to happen.”
Indeed, there have already been cases where overworked employees have been awarded damages in court, said Shain.
It may only take one or two landmark cases to fundamentally shift the employment law landscape in Canada, he said. The whole concept of poisoned environment in terms of harassment only took a few cases to transform organizations in this country.
Fifteen years ago damage due to stress or unfair working conditions weren’t significantly measurable, but they have been getting better and it is now possible to develop scales to show how much an employee can handle before they would suffer damage. “They’ve been able to calibrate the amount of stress that’s associated with adverse health outcomes.”
However, and perhaps more appropriately, we already know that treating employees unfairly hurts them, so why do it at all, he asks. “The safe thinking with toxic gases is don’t release any. It’s not guess when it gets really harmful, it’s let’s not do it at all.”
This is not about being less competitive or having a workforce that doesn’t work as hard. On the contrary, by giving employees more control and treating them fairly, the research shows they will work harder, better, and more efficiently.
That’s not all. Once it can be established that an employer could be held responsible for the harm they do to employees, they could also be held responsible for their social exhaust because harms done to employees in the workplace don’t stay there. “Mind numbing work creates bad citizens,” said Shain. When employers constantly send home employees who are exhausted and demoralized, then the community suffers. Not to mention increased costs of treating cardiovascular disease and substance abuse among other maladies caused by bad work environments.
Shain sees a day when polluting the community with depressed employees will be equally punishable if they were polluting rivers and streams.
There are members in the scientific community who maintain psychological damage done by employers is no less harmful than exposure to toxic substances and therefore employers should be held liable for inflicting psychological harm on employees. Shain uses the term “psychotoxic” to describe power-based relationships that are harmful to employees.
Negative working conditions — specifically those characterized by high demands and low control or high effort with little reward — are predictive of a wide range of negative outcomes including anxiety and depression, increased substance abuse and cardiovascular problems, accident rates and even increased infectious diseases and some forms of cancer, said Shain.
“Unfairness can have a very powerful impact on people’s mental health,” said Shain. “A chronic lack of control actually effects the brain at the cellular level,” he said.
Now that science can prove this, “We’re getting to the point where we can say there are consequences that are predictable.”
Is enough known about this kind of harm to say the consequences of unfair work environments are reasonably foreseeable, and therefore a responsibility of the employer to prevent? “I’m arguing we do,” said Shain.
Not only that, but there are already legal precedents set in other parts of the world of employers being held liable for psychological harm done to employees and there are legal experts who believe Canada could be ripe for similar precedent-setting cases, particularly since in most instances employees suffering from excessive stress can no longer apply for workers’ compensation.
Shain cites one leading Canadian legal text book which says employers “should exercise their authority with due regard for the personal dignity and autonomy of those who are subordinate to them.” And in the 1997 case, Lloyd v. Imperial Parking Ltd., the judge stated, “A fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity…This appears to be part of the trend to establish a duty upon an employer to treat employees ‘reasonably’ in all aspects of the labour process.”
In a precedent setting case in England in 1995, Walker v. Northumberland County Council, the judge applied the same thinking behind due diligence — that the employer has a responsibility to protect employees from physical harm — and took it a step further, stating, “there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer’s duty of care.”
Toronto-based employment lawyer, Lynn Bevan agrees the terms of employer liability in Canada could soon look very different, pointing out that the courts have already ruled employers have an obligation to treat employees "fairly" during a dismissal.
"In Wallace v. United Grain Growers Ltd., the Supreme Court of Canada held that employers must act in good faith and be fair when they dismiss an employee," she said.
The Court held that employers must "be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or in bad faith by being, for example, untruthful, misleading or unduly insensitive."
"If the Court was prepared to impose this duty at dismissal, it would not be much of a stretch to extend it to active employment," she added.
Shain said the Walker case is important because it illustrates that in a stress claim, enough evidence can be presented to prove foreseeability and the causation of harm.
This duty to avoid psychiatric harm goes beyond the duty of due diligence as it is generally applied in Canada. “I prefer to use the term ‘constructive diligence’ to reflect the more proactive, less defensive notion of a duty to foresee and prevent harm that might be reasonably anticipated,” said Shain.
“One labour lawyer told me this is just waiting to happen.”
Indeed, there have already been cases where overworked employees have been awarded damages in court, said Shain.
It may only take one or two landmark cases to fundamentally shift the employment law landscape in Canada, he said. The whole concept of poisoned environment in terms of harassment only took a few cases to transform organizations in this country.
Fifteen years ago damage due to stress or unfair working conditions weren’t significantly measurable, but they have been getting better and it is now possible to develop scales to show how much an employee can handle before they would suffer damage. “They’ve been able to calibrate the amount of stress that’s associated with adverse health outcomes.”
However, and perhaps more appropriately, we already know that treating employees unfairly hurts them, so why do it at all, he asks. “The safe thinking with toxic gases is don’t release any. It’s not guess when it gets really harmful, it’s let’s not do it at all.”
This is not about being less competitive or having a workforce that doesn’t work as hard. On the contrary, by giving employees more control and treating them fairly, the research shows they will work harder, better, and more efficiently.
That’s not all. Once it can be established that an employer could be held responsible for the harm they do to employees, they could also be held responsible for their social exhaust because harms done to employees in the workplace don’t stay there. “Mind numbing work creates bad citizens,” said Shain. When employers constantly send home employees who are exhausted and demoralized, then the community suffers. Not to mention increased costs of treating cardiovascular disease and substance abuse among other maladies caused by bad work environments.
Shain sees a day when polluting the community with depressed employees will be equally punishable if they were polluting rivers and streams.
