Stressful crimes

The
HSE’s handing down of an improvement notice to an NHS trust moves the whole
issue of work-related stress from the area of civil dispute to the majesty of
criminal law, by Linda Goldman & Joan Lewis

Stress
has moved into the area of criminal law. In August, the Health and Safety
Executive (HSE) issued an improvement notice under the Health and Safety at
Work Act 1974 against West Dorset Hospital’s NHS Trust, requiring it to improve
working conditions to reduce stress within its workforce. The underlying threat
is that if improvements are not made, a prosecution could follow.

The
anomaly is that the hospital has an outstanding success rate within the NHS,
having earned the coveted three-star accolade. The penalty for achieving its
standards of excellence for treating patients appears to be unacceptably high
levels of stress in its workforce. The trust has been given until the end of
the year to get its act together and improve working conditions.

Stress
and criminality

While
West Dorset County Hospital was acquiring plaudits for reducing waiting lists and
for excellence in treating its patients, a stress time bomb began ticking away
within its walls.

The
story behind this apparently arose from a complaint made earlier this year to
the HSE by a disgruntled former employee about high stress levels.

At
about the same time, 28 of the hospital’s speech therapists complained formally
that their working conditions were intolerable because of staff shortages. Soon
afterwards, 57 clerical workers complained they were working up to 12 hours a
day dealing with a huge backlog of work.

HSE
involvement moves stress factors from the almost ‘cosy’ area of a civil
dispute, which can be resolved with the agreement of the parties, into the
majesty of the criminal law, where once a charge is laid and a finding of guilt
is made, the wrongdoer is criminalised and penalised.

The
preliminary findings from the investigation were that the stress levels at the
hospital were such as to render it an unsafe place to work.

An
improvement notice was issued under the Health and Safety at Work Act,
requiring the reduction of stress levels to reduce the potentially harmful
effect on employees’ health.

It
is a criminal offence to fail to comply with the order. So, if nothing or not enough
is done to reduce stress levels, the trust could face prosecution.

Contravention
of the requirement to effect improvements could lead to a fine of up to £20,000
or, if any individual can be shown to have deliberately obstructed the making
of improvements, the individual risks a prison sentence of up to two years.

Another
outcome, which could have more serious effects on the hospital as a whole,
including its patients, is that the HSE has the power to issue a prohibition
notice forbidding activities that, in this case, would be those loosely defined
as stressful. Such a notice could effectively close the hospital until suitable
and sufficient steps have been devised to make it a safe place to work.

HSE
guidelines

It
is worth looking at the HSE’s recent research on stress prevention and
rehabilitation. This includes reports that form the basis of new guidance for
dealing with stress in the workplace, which were due for publication this month.

The
HSE identifies best practice in various aspects of stress prevention and in the
rehabilitation of employees who have suffered stress-related illness. Feedback
to the HSE reveals that although many stress factors are identifiable, managers
have difficulty in devising prevention strategies.

It
is suggested there should be greater use of the HSE’s 2001 publication Tackling
work-related stress, to prepare for meeting recommended standards, which will
be introduced fully in 2004.1

OH
personnel should be aware that criminalisation of stress is a perfectly proper
way to deal with the problem. It is therefore all the more important to try to
deal with the problem in the tradition of prevention being better than a cure.

What’s
it all about?

In
physiological terms, stress results when excessive adrenaline production is
stimulated. Psychological stress can be the result of too much activity, too
little activity, too much responsibility, too little responsibility, no change
or too much change. The list could go on and on, but the essential point is
that one person’s stimulating challenge is another’s high stress factor.

There
are many physical factors that have a bearing on stress, not least of which are
working conditions involving repetitive movements or other forms of heavy
activity. The general environment may be stressful but an environment that
causes or thrives on fear is not a safe place to be.

Organisations
attempting to evaluate stress must look both at external factors (the job, its
physical and psychological demands) and internal factors, which apply to the
individual who is at risk.

The
HSE’s definition of stress is not pleasing to the pedant unless the term is
taken to mean ‘a reaction to stress’. The HSE describes it as "the adverse
reaction people have to excessive pressure or other types of demand placed on
them".

The
official line of thought is that there is a clear link between poor work
organisation and subsequent ill health. The OH team involved in stress
investigations should be looking at cause and effect in the global context of
domestic as well as work factors.

The
starting point and the easiest way to deal with the problem to avoid the risk
of prosecution, or at least have a good defence to hand, is to go back to the
basics of health and safety legislation: investigate cause and effect by
starting with a risk assessment.

This
approach has been a requirement by law for more than 10 years under the
Management of Health and Safety at Work Regulations.

It
is worth remembering that it is a criminal offence to fail to carry out a risk
assessment. The crime features frequently on lists of HSE prosecutions.

In
considering whether stress factors are potentially harmful, the assessor should
ensure attention is given to external matters, including social and domestic
events that could amount to additional stimuli, rendering an individual less
able to cope with workplace events.

The
HSE has instituted a programme for assisting employers to carry out
assessments, and its website offers a wide range of invaluable help, referring
to obvious bullying and harassment in fear situations and musculoskeletal
disorders in physical dangers. Assistance is given with other less easily
identifiable factors.

Stress
is serious

It
seems the HSE is currently likely to take a more active role in prosecuting
organisations where stress management procedures are found to be lacking.

The
HSE inspector will not be impressed with anecdotal evidence to show that a
bland working environment is not productive. They will be aware of factors
intrinsic to the workplace and that stress can be experienced in all areas of
life. However, as long ago as 1995, it was known that work-related stress was
the second biggest cause of occupational ill health in the country.

Some
interesting statistics offered by the HSE show:


About half a million people experience work-related stress at a level they
believe is making them ill


Up to 5 million people in the UK feel ‘very’ or ‘extremely’ stressed by their
work


Work-related stress costs society more than £4bn every year.

What
to do

Up
until now, the HSE has not considered criminal law to be the first route to
follow. If stress has become so marked as to cause a problem, dealing with it
initially should be through the employers’ internal grievance and disciplinary
procedures. The important point is that it should be recognised before it
becomes a risk to health.

It
is in that context that negative work relationships involving bullying and
harassment can be identified and controlled through proper management, either through
the disciplinary code or by occupational health involvement.

Bullying
is one form of violence that is increasingly reported in the workplace, but it
should be remembered that the threat of violence, if it engenders fear in the
victim, is a criminal issue, as it is the essential ingredient of the crime of
assault. Risk assessments should cover individual perceptions of fear. Just as
an employer can face the risk of prosecution, the employer is also entitled to
call in the police to deal with issues of violence.

Afterthought

There
is no such thing as a perfect workplace, but there is such a thing a safe one.
Criminal law does not require anything more than taking such steps as are
reasonably practicable to ensure a safe place and safe system of working.

To
achieve safety from stress factors, it is important to assess what is or is not
tolerable to the individual or the group as a whole.

There
will be cases where the individual cannot cope with the levels of stress that
would otherwise appear to be safe.

That
moves the goal posts from the criminal courts back to the employment tribunal.
Is the person capable of carrying out the work they were employed to do? If
not, individual procedures need to be carried out to assist the employee.

If
those procedures fail, the employee may be invited to end this stressful job
and enter the even more stressful arena of a new job search.

High-risk
groups

Some
occupations have particularly high levels of stress, which is supported by
diagnosed psychiatric disorders of varying degrees of seriousness, both in
terms of the condition and in its prognosis.

OH
personnel need to be particularly aware that jobs involving interpersonal
contacts, in which there is a risk of violence, carry potential problems.

Professions
with increasing levels of stress-induced illness include:


Teaching


Nursing and medicine


Police


Social and probation work


Armed forces

Not
a casebook

When
devising a protocol for carrying out risk assessments, it is useful to look at
the experience of others. It appears that stress is either over reported or is
endemic.

Figures
set out in the HSE’s 2001-2002 survey of work-related illness show that nearly
one in five of all working individuals believed their job was ‘very’ or
‘extremely’ stressful.

It
appears that an estimated 265,000 people first became aware of work-related
stress, depression or anxiety in the previous 12 months. The survey also shows
that self-reported work-related stress, depression or anxiety account for an
estimated 13.5 million reported lost working days per year in the UK.

In
considering the apparently overwhelming impact of these figures, bear in mind
that a self-made diagnosis – such as depression or anxiety – is not necessarily
one that would be accepted by the courts. A recent case made it clear that the
term ‘depression’ is over-used. Full diagnostic criteria must be present before
a court will rely on the label.

Linda
Goldman BDS, LLB and Joan Lewis MCIPD, MA (Law & Employment Relations).
Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head of
training and education for Advisory, Consulting & Training Associates Ltd
(ACTA). Joan Lewis is the lead consultant in employment law and human resources
for ACTA. ACTA, also trading as Virtual Personnel ª, isÊlicensed by the General
Council of the Bar under the BarDirect scheme in employment law matters. Tel.
020 8943 0393, e-mail joanlewis25a@aol.com

References:

1.
A new HSE guidance booklet on stress will be published in October 2003.
Information about the reports can be found on the HSE website at www.hse.gov.uk/stress

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