A medical condition or an occupational phenomenon?

Responding to increasing worldwide concerns over deteriorating mental well-being of workers in the workplace, the World Health Organization (WHO) has recently clarified that “burn-out” (過勞) is an occupational phenomenon (職業現象)but not a “medial condition” (病況) and officially categorising it so under its 11th Revision of the International Classification of Diseases (ICD-11).

According to the WHO, “burn-out” is defined as: –

“a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed. It is characterized by three dimensions:

• feelings of energy depletion or exhaustion;
• increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and
• reduced professional efficacy.

Burn-out refers specifically to phenomena in the occupational context and should not be applied to describe experiences in other areas of life.”

For Hong Kong, similar concerns have been voiced by the general public over occupational health issues over the past few years. Statistics compiled by the Labour Department shows that from the year 2013 to the end of the third quarter of the year 2018, there were a staggering number of 635 non-accidental deaths at work – how many of which were caused by wholly or partially burn-out situations, we do not know.

The statistics may shed light on the reasons for such high numbers of death: employees in Hong Kong consistently rank top in the world in terms of weekly work hours, reaching 44 hours per week between May and June 2017. Among the 3.04 million employees in Hong Kong, 25% had work hours over 51 hours per week in the said period.

In view of the recognition by the WHO of burn-out as an occupational health hazard, does this have any impact or effect on Hong Kong courts’ decision on or the extension of an employer’s duty of care towards injuries or occasioning death of its employee caused by burn-out at the workplace?

The present laws

Employees’ compensation is statutorily provided for in the Employees’ Compensation Ordinance (Cap. 282) (“ECO”). Under section 5 of ECO, an employer is liable for the employee’s injury or death resulting from accident in the course of employment subject to certain provisos, for instance, the injury is inflicted by deliberate self-injury or the accident is directly attributable to the claimant’s addiction to drugs.  

On the other hand, the Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”) imposes on the employer a general duty of care towards the employees to ensure their safety and health at work and Section 6 of OSHO provides a non-exhaustive list of situations under which an employer is deemed to have failed in exercising its duty of care, including a failure to maintain the workplace or a working environment in a condition that is safe and without risks to health. Alongside with the OSHO, the Factories and Industrial Undertakings Ordinance (Cap. 59) (FIUO”) provides regulation and imposes duties on proprietors for the safety and health protection to persons employed in the industrial sector.  

Common law also recognises an employer’s duty of care towards the safety and health of its employees and it supplements the statutory laws by extending the scope of duties based on case laws.

Is “burn-out” relevant?

As mentioned, ECO covers “accident” causing injuries or deaths of employees in the course of employment. Adopting WHO’s definition of burn-out, it is hard to argue that chronic workplace stress per se constitutes an “accident” under ECO which in turn causes the burn-out symptoms as “injuries”. This is because the temporal element of an accident, which is invariably almost instantaneous (such as accidentally falling off a ladder or being hit by a falling crane during work), diametrically opposes the chronic nature of chronic workplace stress causing burn-out. It is also difficult to characterise the mental effects of burn-out, such as energy depletion and reduced professional efficacy as “injuries”.

The “injury” sustained must be one that incapacitates the claimant from earning full wages at work or results in partial incapacity of a permanent nature under section 5(2) of the ECO. In the case where the employee dies from burn-out alone, it is still difficult to argue that ECO applies as burn-out is not currently one of the occupational diseases listed in the Second Schedule of ECO which entitle a claimant to compensation if death or injury results therefrom.

Nevertheless, if the burn-out syndrome facilitates an injury or death, it is compensable. An archetypal example is a tired and overworked driver getting hit by another vehicle on the road due to his diminished attention to the road conditions caused by his depleted energy level and stamina, thereby resulting in injury such as fractured bones or head traumas or even death from the collision. That would be compensable under ECO.

Although there may still be grey areas under ECO, the provisions in OSHO and FIUO might still assist to the extent that the burn-out (which subsequently caused injury or death) is due to the failure of the employer in ensuring the safety and health at work of the employees so far as reasonably practicable.   For instance, if an employee was assigned with several shifts of work non-stop so rendering the employee did not have sufficient rest time and became physically fatigue and exhausted and lost attention, causing injury, this would be a breach of the OSHO.  An employer who fails to comply with the foregoing under section 6(1) of OSHO intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of $200,000 and to imprisonment for 6 months.

Although it is clear that the employer and employee relationship gives rise to a duty of care on the employer under common law, currently, there is no case precedent in Hong Kong which grants the claimant damages for burn-out injuries or deaths.

Nonetheless, there have been court cases in Hong Kong in which the courts have granted damages to the claimant where he/she was injured or died from a workplace accident which might have been facilitated by burn-out.

A notable example is the case of Ting Siu Yan v Menzies Aviation (Hong Kong) Limited (HCPI 861/2005) where the employee suffered injuries from an accident while working in the course of employment at the Hong Kong International Airport as a “Ramp Service Agent” and sued his employer for damages. The employee worked in excess of two hours to complete unloading and loading part of an aircraft and shortly before he reached to the tractor to tow objects away, he tripped on a damaged expansion joint and fell heavily, striking his knees against the rear wheel axle of the tractor. In a letter to the Commissioner of Labour written by the employee, the employee contended that he had tripped over the uneven surface due to his exhaustion from overwork. Although the judge did not accept that the cause of the accident was contributable to the fatigue, the judge nonetheless ruled in favour of the employee and granted him damages.

Tips to Employers

Hong Kong employment laws are far from adequate in that they currently do not seem to cover burn-out as a cause for accident compensation. However, the new WHO’s definition and categorization of burn-out may shine an optimistic light on future court’s decisions and legislative reforms in this regard. We believe that as time goes, the Hong Kong courts would be more willing to take a liberal approach in considering burn-out leading to injuries and deaths as a cause for compensation to adapt to societal changes. 

It is therefore prudent for all employers, apart from the constant supervision to ensure the safety and health at workplace, to revisit the arrangements of work allocation and work hours for employees.

If you have any questions regarding any compliance issue in relation to the provision and maintenance of a healthy and safe work environment or on any other employment issues, please contact one of the members of the Employment Law team.