Report cites 7 areas of concern
Ten years ago, only severe acts of harassment and bullying resulting in catastrophic psychological harm could lead to legal actions for mental injury. Today, even the “negligent and chronic infliction of excessive work demands” can lead to such claims, said Martin Shain, author of the report Tracking the Perfect Legal Storm.
As a result, pressures are building toward a perfect storm, with a rising tide of liability for employers in connection with failure to provide or maintain a psychologically safe workplace, said the Mental Health Commission of Canada (MHCC) report.
“The unmistakable common thread is the increasing insistence of judges, arbitrators and commissioners upon more civil and respectful behaviour in the workplace and avoidance of conduct that a reasonable person should foresee as leading to mental injury,” it said.
“The law is reaching further and further into the control rooms of both private and public organizations, large and small.”
And financial rewards for damages caused by mental injury at work have increased over the past five years by as much as 700 per cent, said Shain, an assistant professor at the Dalla Lana School of Public Health at the University of Toronto, who also wrote the 2009 report Stress, Mental Injury and the Law in Canada.
“The standard for what mental injury is is a lot lower than it was 10 years ago so it’s easier, unfortunately, for employers to sort of trip over that liability wire because it’s set lower than it used to be and you can’t even see it,” he said. “It’s embedded in seven different areas of the law which are contributing to this perfect legal storm.”
Those areas are human rights, workers’ compensation, law of torts, the employment contract, labour law, occupational health and safety and employment standards (see sidebar on page 20).
“In the grand scheme of things, what we’re doing is almost reinventing the employment relationship around a new set of principles,” said Shain.
That means human rights decisions dictating how key aspects of work should be organized and designed, more incidents of workers’ compensation for mental injury and employment contracts that include implied terms for the protection of employee mental health, said the report. Legislation and cases around the accommodation of workers with mental health issues in unionized environments are also more sophisticated while occupational health and safety legislation is increasingly applied to mental well-being.
Using a legal stick
It’s clear many employers are demonstrating “negligent, reckless and intentional behaviour that can lead to mental injury and that’s what we want to stop,” said Shain.
“What we really want to do is stigmatize employers who fail to acknowledge they have a duty in this regard and to praise and acknowledge and celebrate employers who get it right.”
Taking a look at the legal implications of a psychologically safe workplace is important because risk management is something management and boards of directors pay an awful lot of attention to, said Lorne Zon, CEO of the Canadian Mental Health Association in Ontario.
“It’s probably giving them a view of risk they haven’t had before,” he said. “The report is an eye-opener and an important lesson for organizations to pay attention to, but it’s also important… to know there’s an awful lot they can do, long before it ends up in the courts, that are quite doable and not that difficult.”
Some employers are moving in that direction, considering psychological safety a normal concept at work, but there’s a real need to redefine health in a workplace as all-encompassing, said Ian Arnold, chair of the workforce advisory committee at MHCC.
“As employers and employees understand the issues and the concerns and the potential solutions, psychological health and safety is going to become much more a part of health and safety,” he said. “And in some organizations, it’s already well on the way there.”
If employers are to be held accountable to a new standard for psychological safety, it should be articulated, consistent and clear, and accompanied by resources and tools, said the report. MHCC is working with the Canadian Standards Association and Bureau de normalisation du Québec on such a project and will jointly announce the standards to assess and address risks to mental health in the workplace, said Arnold.
Other groups, such as Guarding Minds @ Work and the Ontario Human Rights Commission, are also looking to develop policies on mental illness and discrimination in the workplace, said Zon.
“The seeds are being planted to develop some of these tools and I’m sure we’ll see a lot of development over next two to three years.”
To help employers better assess and address psychological safety issues at work, the MHCC also met with employers, union leaders and health and safety and legal experts in Vancouver in September. The idea was to look at how employers can provide psychologically safe workplaces in a way that allows business to be sustainable.
And it can be done, said Mary Ann Baynton, a member of the MHCC advisory committee.
“I imagine there was a time when the idea of providing a physically safe environment felt overwhelming as well, that the costs were too great and then, as employers started to see the benefit, they realized this was an investment that was worthwhile.”
A report on the meeting will be released by the end of November, said Arnold.
7 Major Trends
The recipe for a perfect legal storm
The seven major trends that are becoming stronger are: human rights, workers’ compensation, law of torts, the employment contract, labour law, occupational health and safety and employment standards, according to Tracking the Perfect Legal Storm.
Human rights: Tribunals and commissions are more supportive of employee claims for harassment and “ever more inclined to reach into the fabric of the employment relationship to dictate key aspects of how work should be organized and designed to prevent mental injury,” said the report.
As an example, when an employer discovers a worker is depressed, it has a duty to accommodate for a reasonable degree, even in the absence of medical evidence (as seen in Bertrend v. Golder Associates, 2009). Even if an employee doesn’t immediately declare a mental disability, such as a person with bipolar disorder, there is a duty to accommodate and not terminate based on disability (as seen in Dunsmuir v. New Brunswick, 2008).
“The public interest remedies of the Ontario commission and of the tribunal are indeed of great potential significance to employers in that such remedies may take the form of intrusions into management rights,” said the report. “The best course of action is to pre-empt such intrusions by preparing, implementing and monitoring policies that ensure a psychologically safe workplace.”
Workers’ compensation: The legal wall that has held back claims for compensation of mental injury from chronic or gradual onset stress “is showing progressive signs of crumbling,” said the report. This was seen in a B.C. Court of Appeal decision that said legislation is wrong if it only allows compensation for mental stress when it is an acute reaction to sudden traumatic workplace events. This is contrary to Canada’s rights and freedoms which say you can’t treat people suffering from mental disability differently from those with a physical disability.
“Employers can be held accountable for mental injury through indirect as well as direct routes in workers’ compensation cases,” said the report. “While workers’ compensation is a no-fault regime, employers are, nonetheless, found wanting and can be penalized by virtue of awards in which they are held responsible for the precipitation of fatal or debilitating heart attacks resulting from abusive and mentally injurious acts or omissions.”
Law of torts: The law of torts also continues to evolve with more stringent requirements for how work should be organized and managed to avoid reasonably foreseeable harm to employee mental health.
“This gives rise to legal perplexity and uncertainty concerning the very existence of a freestanding tort of negligent or international infliction of mental suffering independent of actions for wrongful or constructive dismissal,” said Martin Shain in the report. “Essentially, it would make the quality of the employment relationship in its entire course a matter for legal intervention and critique.”
Employment contracts: Also changing is the employment contract, as judges have stated it contains implied, if limited, terms for the protection of employee mental health, according to the report.
“The law seems poised to define new opportunities for employees to sue their employers for mental injury while the employment relationship is still viable and where there may be no desire to end it but rather amend it.”
Also a concern is the rise of class-action lawsuits around issues such as overtime.
“It would not be a great leap to see class actions of this type extending to mental injury using excessive work demands as the springboard,” said Tracking the Perfect Legal Storm.
Labour relations: The body of legislation and cases that govern the employment relationship in unionized environments continues to become “more nuanced and sophisticated” in laying the requirements for a psychologically safe workplace, said the report. One of the challenging areas is accommodating employees with mental health issues who could be considered, to some degree, culpable for their misconduct.
“There is a proactive duty on the part of employers to gather enough medical information to enable (them) to decide on the boundaries between culpability and non-culpability regarding employee misconduct,” said the report.
Health and safety: Occupational health and safety legislation is becoming more consistent in its application to mental well-being through various amendments, said the report, such as Ontario’s Bill 168 around workplace violence and harassment.
“There’s been an evolution in thinking about occupational health and safety to increasingly embrace the idea we really should protect minds the same way we protect bodies,” said Shain.
Employment standards: Finally, in the area of employment standards, legislation dealing with accessibility and treatment of those with mental disorders is relatively recent. Quebec is far ahead when it comes to harassment but there are signs damages awarded to complainants may be increasing, said the report. And Ontario’s Accessibility for Ontarians with Disability Act (AODA) will have an impact.
“The AODA framework may impose yet another set of requirements on employers with regards to those employees living with mental disorders.”
