Employers are required by law to have a duty of care to ensure that they offer a safe, unthreatening environment in which to work.
Under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers are obliged to ensure, as far as is feasible, the health, safety and welfare of their employees at work, and to assess health and safety risks. Since the 1999 Regulations, in particular, managers can now fall foul of the law if staff develop stress.
One tool that can support employers in the duty of care is an Employee Assistance Programme (EAP) to support staff on issues ranging from debt counselling or stress therapy to advice on finding a school or dealing with a wayward teenager.
EAPs comprise services such as helplines, counselling and legal advice. The suppliers claim their main benefit is that employees who are grappling with personal issues are less likely to be affected by them during work time. Fewer personal problems mean fewer distractions, and that leads to increased productivity.
While most organisations offering help with debt or relationship problems are acting with the best possible motives, they need to look at the underlying issues behind the problems, which may stem from the workplace. For example, an employer cannot absolve itself of all its responsibilities regarding workplace bullying or harassment just because it has an EAP.
Employment law case history suggests that where staff have tried to bring a stress-related claim against their employers, having an EAP in place can work in the employer’s defence, but also shows this is not always the case.
So to what extent does having an EAP protect employers from claims for liability for stress-related ill health? The Hatton ruling in 2002 (Sutherland v Hatton  IRLR 263 CA) suggested that having an EAP did give some protection but subsequent case law has complicated the picture.
The House of Lords ruling in Barber v Somerset County Council  IRLR 475 HL emphasised that employers should actively promote an EAP service, and also ruled that the law expected employers to take positive thought for the safety of employees based on what the employer “knows or ought to know”. The Health and Safety Executive (HSE) management standards for work related stress should help employers and line managers to identify potential problems. Using the reporting function of an EAP could be one way to identify stress hot spots without breaching the confidentiality of service users.
Another case, Intel Corporation (UK) Ltd v Daw  IRLR 355 CA, made it clear that having an EAP did not mean employees could avoid other interventions, such as stress audits. The court said that an EAP is not “a panacea by which employers can discharge their duty of care in all cases”.
And the case of Green v Deutsche Bank  UKHL 34, resulted in damages of £828,000 being awarded to a woman who had suffered two nervous breakdowns caused by bullying at work. The court found the bank liable even though it had an EAP in place.
In 2004, the HSE issued management standards for employers to follow to minimise their chances of being in breach of the Health and Safety at Work Regulations 1999 when managing stress at work. They focus on how employers can avoid putting undue stress on staff and consequently avoid legal ramifications.
The HSE’s management standards cover six areas of work design that, if not properly managed, are associated with poor health and wellbeing, lower productivity and increased sickness absence. These are:
- Demands Workload, work patterns and the work environment.
- Control How much say employees have in the way they are expected carry out their work.
- Support The encouragement, sponsorship and resources provided by the organisation, line management and colleagues.
- Relationships Promoting positive working to avoid conflict, and dealing with unacceptable behaviour.
- Role Whether or not people understand their role within the organisation and whether or not the organisation ensures they do not have conflicting roles.
- Change How organisational change (large or small) is managed and communicated in the organisation.
The key is to view EAPs and similar programmes as an added extra, rather than a solve-everything investment that will absolve managers of responsibility for employee welfare. It is also crucial that the service is voluntary.
Not every employee may appreciate the caring efforts of their employer, but even a small increase in morale and productivity justifies the initial investment.
This article is based on “Duty of care: a helping hand”, which first appeared in Personnel Today magazine on 12 September 2006. The legal information has been brought up to date.
AN EMPLOYEE’S STORY
“After borrowing money for home improvements and a new car, my repayments were quite high, but I had always managed to cover them until I lost my job. I managed to find a new job quickly, but at a significantly lower salary. I missed a couple of months’ repayments and the letters started arriving from my creditors. It was the only thing I could think about.
“My brother worked for a company that provided an Employee Assistance Service and suggested I called them. I spoke to a debt specialist who asked me to complete an income/expenditure form and they then looked into my outgoings and calculated how much I could afford to pay back.
“The EAP provider contacted my creditors and asked them to consider freezing the interest on my loans and reducing my payment amount. Thanks to the service, the creditors agreed and my payments are now reduced to a level where I no longer need to worry.”