ast year the Court of Appeal handed down a decision which prompted a sigh of
relief from employers everywhere. In the face of growing claims for
compensation for stress at work, help finally came in the appeal case,
Sutherland v Hatton, 2002, EWCA Civ 76.
It was crucial for two reasons. The court decided the onus was upon the
employee to some extent to raise their concerns – and if they did not, the
employer was entitled in most cases to take their silence as acceptance that
there were no problems. More importantly, the court also said employers only
have a duty to act if it was becoming obvious that action needed to be taken to
prevent a health risk. It also indicated that employers who offered
confidential advice services, with referral to appropriate counselling or
treatment, were unlikely to be found in breach of their duty of care.
Employment lawyers and advisers were swift to herald this decision as an
important action point for clients. Employers were encouraged to consider
whether the provision of such a service would be cost effective or convenient.
The court’s decision served as a vindication, too, for those in the profession
who had already appointed such counsellors without any legal prompting. One of
these was Kevin White, group HR director at the Department for Work and
Pensions, which is already providing such services.
The ‘right thing to do’
The DWP was created in 2001 following the merger of the Department for
Social Security (DSS) and parts of the Department for Education and Employment
(DfEE). Counselling services, commonly referred to as employee assistance
programmes (EAPs), were already in place at the DSS and DfEE and had been
providing confidential counselling and advice via two providers to 90,000 and
60,000 staff respectively for up to four years. Both providers remain under
contract to the DWP, providing the same level of service to different parts of
the newly-formed department and its staff around the country.
"Although we were pleased to hear the ruling in the Sutherland case,
the contracts [with the EAP providers] have been in place for a few years so
their introduction is not a response to that ruling," explains White.
"The first reason for introducing EAPs was as a good employer, striving to
go above the legal requirement. It seemed to be the right thing to do, to
provide opportunities for people to have individual support about work-related
and personal issues, such as a death in the family.
"People carry work problems home with them and vice versa. Motivated
people work better. People who are demotivated or suffering from problems don’t
work so well."
Advice to line managers
Between them, the two EAP providers serve the 130,000 full-time equivalents
working for the DWP (representing a quarter of the civil service) at its
network of 2,000 locations around the UK. They provide confidential telephone
counselling and the opportunity for face-to-face meetings for individuals who
need prolonged support. There is a limit of six face-to-face sessions. This has
been set to allow staff a reasonable amount of time to resolve an issue but
ultimately it acknowledges that some problems are of such a nature that another
way of tackling them may need to be found. The EAP providers are also
contracted to provide advice to line managers on how to deal with a number of
staff-related issues, such as how to handle an employee with an alcohol
White’s department launched an extensive internal marketing campaign,
including posters, leaflets and via the intranet site, to make employees aware
of the existence of the counselling providers and range of services they offer.
A recent staff survey indicated that the level of awareness of the counselling
services was 89 per cent.
Internal data shows that between July and October 2002 counsellors dealt
with 8,000 issues. This does not mean 8,000 people contacted the service, but
8,000 different issues had been raised, encompassing instances where one person
raises more than one issue and others use the service more than once. It also
shows that 60 per cent of the issues raised were of a personal nature, while
the remaining 40 per cent related to work. Of the combined total of personal
and work-related issues, nearly a third (30 per cent) were health related. The
annual cost to the DWP of providing the EAPs is more than £2.5m, which works
out at £15-16 per employee.
"We feel this represents value for money," asserts White. "If
you were to be mercenary about it, it would be very damaging to our operations
and to the people depending on our help if our people were not working
effectively. The cost of providing these services is a relatively small part of
our wage bill.
"The feedback we receive from the counselling services adds to feedback
from the staff survey, which we use to ensure the services we provide are fit
for the purpose. It would be difficult to tie anything back specifically to the
counselling service itself, but we have received information that there is
concern about bullying and harassment by colleagues and the public and that has
fed into a recent revision of our policies for dealing with that.
"We have looked at the figures carefully and they are roughly what you
would expect. If evidence showed significant new issues or changes in the usage
of the service, we would take that as a signal that we need to examine it more
Confidentiality is important
Confidentiality is generally considered to be the most important factor when
it comes to the provision and, more crucially, the take-up of EAP services.
Staff must feel confident that anything they say to a counsellor will be not be
passed on to their employer. However, to fulfil their obligations, as indicated
by the Sutherland appeal, employers need to gather some information about the
stresses and strains their employees feel they are under as a result of the
work they perform. Among the key points made by the Court of Appeal was that
employers only have a duty to act if it is becoming obvious, on an objective
basis, that it should do something about a stressful situation.
White receives statistical data about the number of contacts made to the
services and the type of issues raised, but nothing about the individuals who
are using the service or the exact content of their discussions with
"I wouldn’t know if a colleague of mine had phoned the service,"
says White. "We felt it was essential for the service to be confidential
otherwise people wouldn’t want to use it. Also few providers would be prepared
to provide the service."
As the government department responsible for work and employment issues, it
would be easy to construe the actions taken by White and his department as a
model for employers generally. So is it trying to set an example that the
Government hopes others will follow? And more crucially, is it hoping to stave
off stress claims from employees and place itself in a favourable position
should a case come to tribunal?
"We are happy for people to draw that conclusion but it is not
something we are pushing on employers," says White. "As a big
employer, we have many responsibilities and would not want to be considered
below standard. We are not doing it for our image. The factors that led us to
provide these services are factors that would lead other companies to take this
"The fact that we have put such a service in place, made the effort to
market it, and that there is a high awareness of it, would no doubt be a strong
factor in our favour [if faced with a tribunal claim]. But it doesn’t absolve
us from needing to manage those issues, although it is an important part of the
According to White, roughly 20 per cent of sickness absence at the DWP is
due to depression, anxiety or stress, although he believes the term ‘stress’
remains difficult to define. While he acknowledges the need for all employers
to address and manage these issues and to strive to remove the factors which
cause them, he is keen not to get the problem out of proportion.
"We don’t want to magnify the issue and encourage people to regard
reasonable pressure to work, which can make a person perform their job better,
as stress," he says. "Neither do we want them to take the view that
stress is a fait accompli, that there’s nothing that can be done, when often it
is a case of getting support, talking to a line manager or perhaps
reconfiguring a job. Often all that is needed is support or training. I am
uneasy about labelling it a huge problem but it is an issue.
"A number of staff say they feel under pressure and stress and that is
highly undesirable. But we would rather place the emphasis on support and
practical actions to make them perform better. One of the values of providing a
service such as this is that it has more to do with prevention than cure. It
enables rapid, professional counselling before something becomes a problem. It
nips problems in the bud."