HSE stress initiative may do more harm than good

An HSE scheme to reduce levels of stress in the workplace could lead to
confusion for employers and encroach upon the private lives of employees

The Health
& Safety Executive (HSE) has taken the radical step of imposing the first
improvement notice for workplace stress.

The notice to West Dorset Hospital NHS Trust means management must reduce
the stress its doctors and nurses are exposed to by December. Failure to meet
the required ‘acceptable’ level may lead to an unlimited fine.

Employers are unlikely to welcome such news, and staff may find it leads to
further encroachment into their private lives.

This development arises just as new research released by the TUC shows that
stressed workers are more than twice as likely to die from heart disease, and
will smoke, drink and binge-eat to cope with work-related stress.

Protecting them from stress is a core function of the Health & Safety at
Work Act, which places a positive obligation on employers to regularly assess
any health risks their staff are exposed to – including workplace stress.
However, it is difficult to detect, and its effects are unpredictable.

The HSE defines it as ‘the adverse reaction to excessive pressure or other types
of demands… [that] arise when they worry they cannot cope’. But employers will
struggle to distinguish this from stress caused in the personal lives of their
staff, particularly as the two are often intertwined. Physical or mental
symptoms such as depression, fatigue, anxiety or eating disorders, can be both
the cause or the effect of workplace stress. For employers to ensure safe
stress levels for staff, they will need increased access into their employees’
private lives.

The pilot project, launched by the HSE this year, encourages employers to
carry out regular ‘six-point test’ staff surveys. An early draft indicates 85
per cent of staff must agree they can cope with the demands of their jobs, and
have an adequate say in their role as well as the necessary support. A further
65 per cent must say they understand their roles, and feel they are consulted
about organisational changes. Businesses that fall below these thresholds will
have to reduce stress levels to avoid action by the HSE.

Of the approximate 3.2 million businesses in the UK, 99 per cent have less
than 50 staff. This pilot could have a severe impact on them, as they will face
an extra financial burden and the greater likelihood of more enforcement
measures. The CBI has announced it will back businesses that decide to appeal
the HSE’s enforcement measures.

The initiative goes against the tide of recent legal decisions in favour of
the employer. One found that if an employer is sensitive and acts
constructively, it is not in breach of its duty of care. Another found that no
job can be regarded as intrinsically dangerous to mental health, and an
employer can assume its staff can handle the pressure unless made aware of a
problem that could lead to stress-related illness. This indicates that employers
aren’t under a civil law duty to monitor stress unless alerted to a problem.

It is unlikely HR will have the resources to implement regular stress
surveys, but it seems they will have to, or risk being fined. For staff, such
persistent monitoring will lead to added intrusion into their private lives as
employers struggle to find the root causes of workplace stress.

It seems employers should now be worried about unearthing, as well as
resolving, stress at work.

By Michael McCartney, Associate, Hogan &
Hartson

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