The health of the OH profession is increasingly dependent on the ability to demonstrate a business case for the part it plays in improved productivity.
As ever, the emphasis is on contributing proactively to the health and wellbeing of motivated staff working in optimal physical and psychological conditions. Low absence levels are an important factor in productivity. What is required is a balance between OH aims and HR management to justify the cost of the service provision.
In 1985, the International Labour Organization adopted the proposition that OH services are “entrusted with the essentially preventive functions [of] advising the employer, the workers and their representatives in the undertaking” on two fundamental issues:
- The requirements for establishing and maintaining a safe and healthy working environment, which will facilitate optimal physical and mental health in relation to work; and
- The adaptation of work to the capabilities of workers in the light of their physical and mental health.
The first part of this approach involves warding off problems through risk assessments. The second refers to the issues that arise when resuming a role after sick leave. Both are particularly relevant to the current epidemic of stress-related illness in a long-hours culture.
The 2005 Chartered Institute of Personnel and Development’s absence management survey shows that sickness absence stands at 8.4 working days a year per employee, amounting to 3.7% of the total number of days available, at an average cost of £601.1 Furthermore, 39% of employers reported an increase in stress-related absence over the previous year.
The OH team is not alone with its concerns: the economics of sickness absence are also a major issue for HR managers. The survey reveals that HR departments regard OH involvement as the most effective method of managing long-term absence. Despite this, it seems that less than two-thirds of organisations use OH services to manage long-term absence. About half of those use OH services to help to manage short-term absence, while the rest rely on line management.
Health and safety promotion
In January, the Health and Safety Executive (HSE) launched a New Year awareness campaign to promote its ‘Better health and safety benefits everyone’ initiative.
Aimed at small and larger employers, the information and advice raises awareness and provides clear information on why promoting health and safety at work can make a real contribution to business success. Sadly, on 10 January, the HSE reported that “Small businesses break New Year resolutions within a month”.2 The sub-headline reads, “Good intentions fail because changes [are] seen as too costly to implement”.
A recent Department of Trade and Industry study, published in conjunction with the TUC and the CBI, focuses on the need for employers to tackle the problems of long hours. Managing Change: Practical ways to reduce long hours and reform working practices demonstrates that getting the right balance in controlling long hours and allowing flexible working hours can be good for business and for employees’ health.3
The legal framework
Long hours are thought to be a contributory factor in stress-related illness, hence the birth of the Working Time Regulations in 1998. These provide for work breaks during the working day, paid leave and a restriction on the number of hours in the working week, subject to some exceptions and the overriding provision for opting out of the 48-hour limit. However, the proposal to do away with the opt-out this year has not happened. So, long hours remain the norm in many organisations, even though they may be counter-productive.
The number of hours worked is a matter that should be the subject of ongoing risk assessments. Regardless of whether regulations provide a legal basis for a particular number of hours in the working week, there may be compelling reasons for employers to consider the validity of an over-reliance on long hours. Even when an employee consents to work longer hours, the duty to safeguard health and safety remains paramount. In Stokes v GKN (Bolts and Nuts) Ltd , the judge said: “…the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know.”
The formula ‘long hours + stress = ill health’ is a truism. Stress is not an illness in itself, but it can be the cause of one. An employer, properly assisted by OH resources, could reasonably be expected to know that all stress factors should be evaluated.
Good health is good business
Monitoring working hours and sickness and absence trends may provide early warnings of a problem. The point is, if an employee’s health suffers because of failure to come to a compromise between the needs of the business and the needs of the individual, the company could face a civil claim for personal injury. If the company doesn’t satisfy the HSE’s standards, there is also a risk of prosecution.
The fact that an employee has agreed to work long hours by signing an opt-out agreement will not in itself be a valid defence for any resulting damage to their health if there is no risk assessment to show that the effect of the long hours was not foreseeable.
Going back to basics, the correct approach is for OH and HR to work with management to examine data on staff turnover, absence levels, working hours, accidents and the nature or pattern of illnesses of absentees. Causal factors are likely to emerge from which new ideas can develop for addressing the local issues.
Although legislation places a high priority on maintaining family commitments through generous parental leave provisions and a legal framework for requesting flexible working, adjustments to the working week should not be provoked by health-related absences that could otherwise be avoided.
1. Chartered Institute of Personnel and Development. (2005) Absence management 2005: a survey of policy and practice. London: CIPD. Available at: www.cipd.co.uk/surveys
2. HSE press release E003:06
3. Managing Change: Practical ways to reduce long hours and reform working practices. The DTI, in
association with the TUC and CBI, www.dti.gov.uk/er/worktimeregs//index.htm#long
Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn, London. Joan Lewis is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect. Any enquiry about this article may be made to Joan Lewis at [email protected]
Hone v Six Continents Retail  IRLR 49, CA
Hone, a pub manager, had not signed a 48-hour opt-out, but had to work 80 to 90 hours a week. He was not paid for the extra time. He complained frequently about his hours. Six Continents Retail did not believe that he was putting in that amount of time.
The Court of Appeal upheld the damages awarded in the County Court because it was reasonably foreseeable that he would suffer psychiatric injury if he continued to work long hours without adequate support.
It was held that “…the fact that Mr Hone was making such claims indicated either he was working hours greatly in excess of anything that could reasonably have been expected of him, week in week out, or that he was making … a cry for help … these matters, taken in conjunction with the fact that, as was known by the defendants, the Working Time Regulations impose a requirement of no more than 48 hours per week without consent, were sufficient to justify the conclusion [that harm to the employee’s health was reasonably foreseeable] … The plain and obvious purpose of the regulations is to protect the welfare and health of employees …”
Harding v The Pub Estate Company, 11 May 2005, CA
Harding failed in his claim for damages arising from a heart attack that he said had been caused by stress at work. The principles of causation for psychiatric injury caused by stress at work are the same as where a physical injury is suffered. In this case, the illness had not been foreseen, nor was it reasonably foreseeable from the employer’s point of view. Thus, there was no breach of the employer’s duty to safeguard the health of the employee.
Gallagher v Alpha Catering Services  IRLR 102, CA
The Court of Appeal upheld previous decisions (Employment Tribunal and Employment Appeal Tribunal) that Alpha Catering Services had not given its employees (including Gallagher) the rest breaks to which they were entitled under regulation 12 of the Working Time Regulations.
Their job was to deliver meals to aircraft, otherwise known as ‘victualling’. Their shifts contained periods of down time between loading and unloading aircraft, during which time they were in radio contact with the employers in case they were needed. They could take meals but were not allowed to sleep during down time. The process of victualling aircraft varies according to timetables and levels of business on a daily and weekly basis.
Alpha Catering Services claimed that down time constituted a rest break, but that it was entitled not to provide any formal breaks as the regulations provide for them to be excluded due to the need for continuous service at peak times.
The Court of Appeal maintained that ‘down time’ is not a rest break because, although nothing is done, the worker is still on call, and is not free to do as they wish. It was held that ‘down time’ cannot become a rest break retrospectively simply because employees were not actually called on to work. It went on to say that “activities involving the need for continuous service’ in regulation 21(c)) refer to the need for the worker, not the employer’s need for continued activity. The modest variation in the work required did not amount to ‘unforeseeable surges of activity’.
Hatton v Sutherland  IRLR 263, CA
The famous proposition from the judgment of the Court of Appeal (in a series of stress-related cases) is:
‘A claimant has to establish that injury to his health (as distinct from occupational stress) attributable to stress at work was reasonably foreseeable. To trigger a duty to take steps, the indications for impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that they should do something about it.’