Guidelines no licence to ignore stressed staff

While the Court of Appeal’s decision over stress claims offers a lifeline to
employers, they should not be too complacent

There has been a media frenzy in the past few weeks after the Court of Appeal’s
landmark decision on stress at work. This has been heralded as good news for
employers and a curb on stress claims from employees.

The decision arose out of an appeal by four employers arising from a County
Court decision that they were liable to pay significant damages to employees
due to stress-related mental illness. The Court of Appeal upheld three of the
appeals and overturned the earlier decisions, saying the employers were not
liable.

So far so good for employers and, helpfully from a practical point of view,
the court went to some lengths to give much-needed guidance on how to minimise
the risk of liability in stress-related personal injury litigation.

But prudent employers should consider what this decision will mean in
reality. It is by no means a licence to ignore stressed empl-oyees. On the
contrary, what the case is really saying to employers is that if, but only if,
they discharge their responsibility to create a workplace in which stress is
recognised and responded to appropriately, will they have a solid defence
against any claim for work-related stress.

Court of Appeal guidance

The main elements are that, first, employers may assume that an employee can
withstand the normal pressures of the job unless the employer knows of some particular
problem or vulnerability. For instance, has the employee said they feel
stressed or had uncharacteristic sickness absence or already suffered from
illness attributable to stress at work?

Second, there are no occupations that should be regarded as intrinsically
dangerous to mental health but employers should be mindful of the nature and
extent of the work undertaken by any employee. Is their workload abnormally
high or are demands unreasonable in comparison with other employees?

Third, employers may take what they are told by an employee at face value
and do not have to make further searching enquiries of the employee.

Fourth, the duty to take steps will only be triggered if the signs of stress
are "plain for any reasonable employer to realise he should do something
about it".

Fifth, the steps that will be required, once the duty is triggered, will
vary according to both the gravity of harm that may occur and the costs and
practicality of preventing that harm. This is in the light of the size and
scope of the employer’s operation.  The
need to treat other employees fairly in any redistribution of tasks will be
taken into account. Finally, the most effective protective mechanism is to
offer a confidential advice service with referral to counselling or treatment.

Steps to take

Although some employers may find it unattractive to invite employees to
raise stress issues, it is key to an effective defence to any claim brought. In
the light of recently reported rocketing levels of stress at work and an
increasingly litigious population, ignoring the problem or hoping it does not
exist is an increasingly unattractive and high-risk strategy that flies in the
face of the guidance given by the Court of Appeal. Employers need to establish
a clear policy on stress at work.

Key points

– Implement stress management training and anti-bullying and harassment
policies linked to disciplinary procedures

– Link stress-related issues to grievance procedures

– Establish a confidential counselling service

– Appraise staff regularly and ask about stress levels.

By Sarah Lamont,  a partner at
Bevan Ashford solicitors

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