Recent Court of Appeal verdicts in six related stress at work cases concentrate minds on effects of work stress on employee morale and productivity as well as potential employer liability. Victoria Parry of Osborne Clarke’s employment law department reports.
Work Related Stress
Stress among the workforce is once again at the forefront of current events, with the Court of Appeal's recent decision in six work related stress cases. For employers, it is a growing concern as it can affect the productivity and morale of employees who are suffering from stress and may leave the employer liable for damages under a tortious or contractual claim due to their psychiatric illness.
This article focuses on some common questions about stress in the workplace.
What is work related stress?
Stress, as defined by the HSE, is the "adverse reaction people have to excessive pressure or other types of demand placed on them". Where stress arises from, or is made worse by work, then the individual can be said to be suffering from work related stress. Although stress itself is not an illness it is often a precursor to ill health, especially if it is prolonged or particularly intense (e.g. depression, nervous breakdown, heart disease).
Why does stress need to be tackled?
Stress is both costly and widespread. Research estimates show that stress costs UK employers over £350 million and more than 13 million working days are lost to stress, depression and anxiety every year. About one in five people in a stress study said that they found their work either very stressful or extremely stressful.
Are employers legally obliged to protect their employees from suffering stress?
Yes, insofar as that stress could make the employees ill. Employers have a legal duty to take reasonable care to ensure the health and safety of their employees. Employees must not, therefore, be subjected to working conditions that are likely to cause them injury, which can include causing psychiatric illness. To this end, the employer must assess and take adequate measures to avert any such injury.
Should an employee suffer from ill health which is stress related, and the court decides that their employer should have been able to prevent it, then the latter could be found to have been negligent. There is no limit to the compensation, which the employee could be awarded.
What if the employer has no idea that an employee is suffering from stress?
An employer cannot be liable for an employee's illness or injury unless it could have been reasonably foreseen. What is reasonably foreseeable will depend on the nature and extent of the employee's job. In the media world, we would expect to see some issues raised formally and informally with management, often coupled with a doctor's note. Employers may also be alerted to an issue if a number of employees are highlighting a problem in a particular area such as too heavy workload or an overbearing boss.
In relation to stress, the essential points to note are as follows:-
· the employee must show that the employer has breached their duty of care, that the stress of the job caused the illness, and that the employer should reasonably have foreseen the risk of illness;
· employers can usually assume that employees can withstand normal pressures of the job unless they know of a particular problem;
· employers are entitled to take at face value what they are told by employees, and do not need to make searching enquiries;
· any employer who offers a confidential counselling service with access to treatment is unlikely to be found in breach of duty; and
· the signs of stress must be plain enough for any reasonable employer to realise something should be done about it.
Does the employer's duty extend to protect employees from feelings such as anger and bitterness?
No. The employer's duty does not extend to protect employees from feelings such as anger and bitterness or normal conditions such as stress or anxiety, which do not cause injury.
The courts recognise that employers often have to take decisions (for example in relation to disciplinary issues) which they know are likely to cause anger and anxiety and it appears that it is safe for an employer to assume that its employees can deal with ordinary disciplinary matters without worrying about how much their mental health might be affected.
What about stress caused by problems outside work?
Employers are not under a legal duty to prevent ill health caused by stress due to problems outside work (e.g. financial or domestic worries). However, an understanding attitude towards staff suffering from such stress is always helpful when illustrating the reasonableness of the employer's actions.
How is the risk of a claim minimised?
By understanding the main causes of stress, an employer will be able to choose the most effective way to tackle and prevent stress among its workforce, thereby reducing the risk of such claims.
The table below sets out a brief summary of the HSE's new stress management standards. Clearly this is "ideal world" behaviour and in reality employers are faced with a careful balancing act between the needs of the business and the employees, but it can be a useful guide.
Main causes of stress
What an employer can do about it
Demands: employees often become overloaded if they cannot cope with the amount of work or type of work they are asked to do.
· Make sure employees understand what they have to do and how to do it;
· meet training needs; and
· consider whether working flexible hours would help employees to manage demands.
Control: employees can feel disaffected and perform poorly if they have no say over how and when they do their work.
· Involve employees in the way work is carried out;
· consult employees about decisions;
· build effective teams with responsibility for outcomes; and
· review performance to identify strengths and weaknesses.
Support: levels of sick absence often rise if employees feel they cannot talk to managers about issues what are troubling them.
· Give employees the opportunity to talk about issues causing stress;
· be sympathetic and supportive; and
· keep employees informed about what is going on in the firm.
Relationships: a failure to build relationships based on good behaviour and trust can lead to problems related to discipline, grievances and bullying.
· Have clear procedures for handling misconduct and poor performance;
· have clear procedures for employees to raise grievances; and
· tackle any instances of bullying and harassment and make it clear such behaviour will not be tolerated.
Role: employees will feel anxious about their work and the organisation if they don't know what is expected of them.
· Carry out a thorough induction for new employees using a checklist of what needs to be covered;
· provide employees with a written statement of employment particulars;
· give employees clear job descriptions; and
· maintain a close link between individual objectives and organisational goals.
Change: change needs to be managed effectively or it can lead to uncertainty and insecurity.
· Plan ahead so changes can be signposted and managers and employees are prepared; and
· consult with employees about prospective changes so they have a real input and work together with their employer to solve problems.