Is your workforce feeling the strain?

To clarify the position following our front page story (6 April), Ros Gumbley, a consultant at Human & Legal Resources, explains the implications for employers following the House of Lords ruling in Barber v Somerset, which overturned a Court of Appeal decision on workplace stress, costing the employer more than £72,000 in the process

In the recent case of Barber v Somerset, the House of Lords overturned a Court of Appeal decision concerning a stress at work claim. However, it is important to note that the House of Lords broadly supported the guidance given by the Court of Appeal in dealing with cases concerning stress at work and that the principles established by the Court of Appeal were still valid.

The House of Lords decided on the basis of facts in this particular case that Mr Barber’s employer was in breach of its duty of care by failing to take steps to lessen job-related stress that could lead to psychiatric illness, and thus made a compensatory award of £72,500.

The Court of Appeal’s judgment gave useful guidance to employers, with practical steps that could be taken in case of complaints relating to psychiatric illness brought about by stress at work.

For an employee to succeed with such a claim, the employer must be able to reasonably foresee whether the employee would suffer from psychiatric harm which could be attributable to stress at work. This, of course, depends on what the employer knows (or ought to reasonably know) about the individual employee and their illness.

In general, the employer is entitled to take what they are told by their employee at face value, unless they have good reason to believe the contrary. They do not generally have to make searching enquiries of the employee or seek permission to make further enquiries of the employee’s medical advisers. However, the employer should always seek further medical advice to clarify the nature of the illness and any recommended actions.

Q How does this impact on me as an employer?

A Where an employee has suffered from an illness resulting from workplace stress, and the employer has been told of the circumstances regarding the individual’s illness, the employer must make a provision for the duty of care for that individual.

In the case of Barber, it was clear that the employer had been made aware of the nature and circumstances surrounding the individual’s illness. The employer should have provided assistance to Barber and taken appropriate measures. In this case, these measures could have included making sympathetic enquiries about Barber’s health upon his return to work, and taking reasonable steps to reduce his workload.

Q What measures should an employer take when an employee makes a claim of work-related stress?

A The message for employers is that having a stress at work policy in place or providing counselling to individuals is not enough provision to deal with stress. They need to be aware of making unreasonable demands on individuals.

Where an individual makes their employer aware that they are suffering from work-related stress and that this could lead to an identifiable mental illness, the employer must consider the nature and extent of the work being carried out by the employee. In particular, the employer should consider:

– whether the workload is much more than is normal for that particular type of job

– whether the demands being made of that individual are unreasonable when compared to the demands made of others in the same or comparable jobs

– whether there are signs that others doing this job are also suffering harmful levels of stress.

Having identified any unreasonable demands on the individual, it is then necessary for the employer to identify steps that can be taken to support the employee and prevent any further illness.

In the guidance given by the Court of Appeal, the size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what steps are reasonable.

Q How can an employer monitor stress and take proactive measures to prevent stress in the workplace?

A Employers should carry out proactive monitoring of the overall levels of stress on employees, either through carrying out a risk assessment or an employee survey.

It is important that employers have a stress policy that clarifies their approach to dealing with instances of stress. Corporate recognition of the problem and the assurance that employees will not be penalised as a result will make it easier for employees to admit to stress.

Guidance and training for managers will equip them in coping with and managing claims of stress.

In addition, employers may consider providing a confidential counselling service for employees.

Q What are the penalties for not taking appropriate measures?

A Although there is no specific legislation covering stress at work, an individual can bring a claim under the Disability Discrimination Act, provided that their illness comes within the definition of a disability, or, as in this case, the individual makes a personal injury claim. In addition, employers have a general duty of care to their employees under the Health and Safety at Work Act.

The judgment in this particular case has clarified the legal position for employers in that they must take reasonable steps to ensure they are not in breach of their duty of care and employees who recognise they are suffering from stress have a responsibility to inform their employers of this fact.

The penalties of not taking reasonable measures to protect employees can be very costly. There is currently no limit to the amount of compensation that can be awarded in cases of disability discrimination or personal injury.

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