Legal dilemma: counselling for executive stress

Due to the pressures of running the business during the current economic downturn, some of our senior management are becoming very stressed. As HR director, I take the view that we should offer them counselling to help them cope and put the issues they deal with into a manageable perspective. However, some are very resistant to the idea of counselling. Can we make it compulsory?

Obviously it will be good practice to offer counselling facilities to employees who may be at risk of stress. Making it compulsory is a more difficult issue.

There has been a great deal of interest in providing confidential counselling services in recent years to support staff and protect the business against compensation claims for work-related stress conditions. However, in a recent personal injury case that came before the Court of Appeal, it was found that simply providing a counselling service will not allow the business to escape liability for stress in every situation. The claimant had previously suffered from stress related to her work and had made it clear to her employers on a number of occasions that she felt ‘stressed out’. The employer’s reaction to offer counselling was found to be insufficient in these circumstances, particularly as it was known she was already receiving counselling as a result of a referral from her GP.

Management should have intervened with an immediate referral to the occupational health (OH) team, and she should have been sent home on full pay pending the OH assessment.

This may suggest that you would be able to require the senior managers to attend stress counselling. However, all the circumstances will have to be taken into consideration, as it could be argued that taking excessive steps to protect the employee, when there is no real evidence that they are required, breaches the implied term of mutual trust and confidence. If an employee disputes that they are suffering from stress, it will only be where there is clear evidence of a stress risk that such instructions will be appropriate. A risk assessment covering stress is likely to be required in each case to justify the action taken.

Michael Ball, employment partner at Halliwells

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