HSE gets tough

The HSE has finally taken off the gloves, and promises to come down hard on
companies ignoring health and safety. And that includes stress. Heather
Falconer explains why firms that follow its guidance needn’t fret too much

For the best part of this year, the Health & Safety Executive (HSE) has
been threatening to toughen up on employers who fail to tackle work-related
stress. In August, it silenced doubters in convincing style. Not even a month
after publishing its long-awaited draft management standards on stress, the HSE
served three enforcement notices on major employers for failing to control
levels of stress among workers.

West Dorset General Hospitals NHS Trust was given until Christmas to
undertake a stress risk assessment. Failure to do so will constitute a criminal
offence. Improvement notices were also issued to two employers in the education
sector, according to an HSE spokesperson.

The HSE seized the moment to warn that no employer is immune from the new
regime. "A duty exists for all employers to undertake an adequate risk
assessment of stress," a spokesman said.

"This is a wake-up call not only for these but for all employers,"
says Richard Yeomans, an employment lawyer with Manches. "It is no longer
an option to take the ostrich approach – the time has come to be
proactive," he adds.

The evidence suggests there is plenty to keep employers busy. A 2003 survey
of 220 organisations by Personnel Today and IRS Employment Review showed only
half of those questioned had carried out risk assessments for stress, while
hits on the HSE’s stress web pages have trebled (from 1,000 to 3,000 every
month) since the management standards were published.

While the HSE pilots and refines its standards, which it says are for
guidance only, it is already using them to arm inspectors with a framework for
forcing employers to fulfil their existing legal obligations.

"The management standards are designed to help employers meet their
existing legal duties by providing some clarity on what it is reasonable for
them to do," says an HSE spokesman.

The Health and Safety at Work Act 1974 places a duty on employers to ensure,
"so far as is reasonably practicable", the health, safety and welfare
at work of all employees. Risk assessments, compulsory under the Management of
Health and Safety at Work Regulations 1999, require employers to weigh up the
likelihood of identifiable ‘hazards’ in the workplace causing harm, and to put
in place ‘reasonably practicable’ measures to prevent these problems arising.

This might be a fairly straightforward process for big machines or noxious
chemicals, but for stress it is far from scientific. The HSE has provided
limited guidance on its website on what kind of potential hazards employers
should look for. This is where the stress management standards come in, because
each positive outcome in the standards has its mirror image in the hazards
section of the risk assessment guidance.

The HSE admits this guidance is "developmental" and "will
need to be refined following evaluation of the [management standards] pilot
study".

Whatever the shortcomings of its policy, however, the HSE is ramming home
the message that the best way to tackle stress is to take a best practice
approach, based on modern management tenets such as communication, consultation
and empowerment. It is a very different message to the one passed down from the
Court of Appeal in relation to personal injury cases.

Given the relentless roll-call of six-figure stress awards in recent years
(see page 44), employers could be forgiven for having focused on this area of
the law when it comes to stress. The Court of Appeal’s 2002 ruling in
Sutherland v Hatton was warmly welcomed for setting out clear limits on
employers’ common law liability.

The Court of Appeal stated that "without a real risk that the employer
ought reasonably to have foreseen and properly to have averted, there can be no
liability."

Whether the employer should have foreseen the danger posed by levels of
stress, depended on the particular characteristics and weaknesses of the
employee in question and the demands placed on them, it added. And the signs of
potential illness, including alerts from the employee, must be "plain
enough for a reasonable employer to realise he should do something about
it".

The Court of Appeal suggested employers offering confidential counselling
schemes, linked to appropriate medical and other advice, would rarely be found
in breach of their common law duty – clearly a much less onerous one than that
imposed by the HSE.

The recent case of Marshall Specialist Vehicles Ltd v Osborne confirmed that
the requirements for establishing liability set out in Sutherland also apply to
constructive dismissal cases. Employees can bring claims on the grounds the
employer has breached its duties, either expressed or implied, under the employment
contract so seriously (in legal terms, a "fundamental" or
"repudiatory" breach) that it entitles the employee to walk out
immediately, claiming full notice pay. Such cases will also invariably include
a claim for unfair dismissal.

Discrimination legislation, with its uncapped compensation and often
sizeable injury to feelings awards, may also get a look in if, for example, the
stress has been caused by sexually or racially-motivated harassment, or if it
has provoked a medically-recognised illness such as clinical depression, and
the employer has not tried to make reasonable adjustments to get the employee
back to work.

In one way, then, the HSE could be doing employers a favour by forcing them
into ferreting out and tackling stress head on. At least it will help to remove
the fear of expensive claims from damaged individuals, by ensuring employers
are fulfilling their various common law and contractual duties.

Yeomans adds: "The theme through all of this is that the benefit of
monitoring and tackling stress, even if you don’t follow the management
standards strictly, is that you will be better placed to stop stress getting
out of hand and resulting in these kind of claims. It is by no means all doom
and gloom."

www.hse.gov.uk/stress

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