Further to our recent article on bullying in the workplace, this article focuses on the closely related topic of stress in the workplace and the actions that employers can take to defend themselves against claims arising from this.
What is stress?
Stress is described by the Health and Safety Executive (HSE) as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’ and is what employees feel when they can’t cope with pressures and other issues.
According to the HSE, over 11 million workdays are lost each year due to stress at work.
Stress at work may manifest itself in the following ways:
- Low motivation and commitment
- High emotions such as being angry, oversensitive or crying
- Isolation from colleagues
- Low performance and/or making mistakes
- Timekeeping issues
- Being aggressive to others
- Matters getting out of control
Some of these issues would in the normal course of events amount to disciplinary/performance issues that an employer would look to investigate following their published procedures. However, as part of this investigation employers should also be on the lookout for any underlying stress related factors that may be causing these issues.
While stress does not normally amount to an illness in its own right, it may result in or trigger an illness. The effects of stress at work may lead to the development of mental health conditions such as anxiety and depression and/or physical health problems.
What duties does an employer have?
Employers have duties under common law (case law) to ensure that reasonable care is taken to provide all employees with a safe place of work.
In addition to this, the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 impose further duties on employers.
- Making a suitable assessment of the risks to health and safety at work, reviewing as appropriate
- Applying the principles of prevention (avoiding risks, combating risks at source, developing a coherent overall prevention policy and giving appropriate instructions to employees).
- Providing information to employees
Although employees are generally unable to take direct action against their employer for breaches of the Health and Safety at Work Regulations, failures by the employer may lead to the HSE taking action directly against the employer for which criminal sanctions can be imposed (substantial fines and/or prison).
In addition to this, failing to adhere to health and safety law may assist an employee when they are looking to establish a personal injury claim against their employer. The employee would need to show that the employer has breached their common law duty to prevent their employees from being made ill by stress at work and that their injury as a result of stress was reasonably foreseeable by the employer. Claims against an employer for ‘personal injury’ would be conducted in the ordinary courts (not the employment tribunal) and would usually be picked up by the employer’s insurer directly.
To assist employers in meeting their obligations, and to help them avoid future claims, the HSE has set out some ‘Management Standards’ for work related stress https://www.hse.gov.uk/stress/standards/, covering 6 key areas of work design which if not properly managed could lead to poor health and increased absences due to stress at work.
These standards essentially set out the steps for a risk assessment for work related stress, helping employers to not only put in place a suitable risk assessment, but also to help them to take the correct steps once they have carried it out.
The HSE requires all employers with over 5 employees to have a written risk assessment in place. Although a written assessment is not required for employers with less than 5 employees, it is a good indicator that the employer is following best practice if they put this in place.
What potential action can an employee bring against their employer for work related stress?
As discussed above, an employee could look to bring a claim for personal injury if the employer is considered to have failed in their duty of care to provide a safe working environment/system of work.
Although an employer can reasonably expect that their employees should be able to cope with the normal pressures of their role, if they become aware of a potential stress issue they would be best advised to act in order to identify the potential sources of stress and to take the necessary steps.
To be successful in a claim for personal injury against their employer following a stress related illness, an employee will need to have suffered a recognised psychiatric illness (such as clinical depression) and be able to show this was caused by work rather than by outside factors.
For an employer to be held liable, it will also be necessary for the employer to have ‘reasonably foreseen’ that the employee would develop a mental illness as a result of the employer’s breach of duty of care. Although this point can often be a stumbling block for employees when bringing claims, it is clear that a failure by an employer to take the necessary steps once they become aware of an issue could potentially lead to a costly claim further down the line.
In addition to the potential personal injury claims described above, there are also a number of claims that can be brought in the Employment Tribunal if an employer fails to deal with stress at work in an appropriate manner.
Often the first indication that something is wrong will be uncovered during a disciplinary/performance management process. As part of the thorough investigation that is required when conducting these processes, it is important to be aware of any suggestion of underlying stress or mental health issues.
Any subsequent dismissal that has failed to adequately consider/investigate these issues runs the risk of a finding of unfair dismissal.
Likewise, a failure by an employer to adhere to health and safety requirements is likely to amount to a breach of the implied term in every employment contract that an employer will provide a safe place and system of work. An employer is under a duty to take reasonable care not to cause psychiatric harm to their employees and a failure to do so may be a breach of the implied term of trust and confidence which may be used to form the basis of a constructive dismissal claim or alternatively a breach of contract claim in the civil courts.
A person who is suffering from work related stress may also be classed as ‘disabled’ under the Equality Act 2010 if they have a mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
Employers should be mindful not to discriminate against employees with a disability, either directly, indirectly or due to something arising in consequence to that disability (such as taking additional time off due to stress related illness). An employer will also have a duty to make reasonable adjustments where a disabled person is placed at a disadvantage because of their disability.
Protection from Harassment Claims
As mentioned in our previous article on bullying and harassment, claims can be made under the Protection from Harassment Act 1997 if a course of conduct has taken place that amounts to harassment. Bullying behaviour is a common cause for stress claims and under this piece of legislation can be raised without the need to demonstrate that the employee is ‘disabled’ under the Equality Act 2010.
Tips on how employers can best protect themselves against workplace stress claims.
- Carry out a stress risk assessment in line with the HSE Management Standards and Guidance.
- Decide whether a standalone ‘stress’ policy is right for your business and make sure your existing handbook/policies adequately cover matters.
- Ensure management are suitably trained on identifying and dealing with stress related matters.
- If symptoms of stress are discovered, be sure to take action at an early stage
- Ensure that adequate systems are in place to identify and deal with stress related issues when they arise.
- Put in place mechanisms for employees to raise issues freely, encouraging an open culture to discuss stress related issues.
- Take appropriate medical advice/instruct Occupational Health where appropriate
- Provide support for employees experiencing stress and make any necessary reasonable adjustments
- Notify insurers of any actual or imminent claims
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