Will new stress guidance help ease the burden on employers?

New guidelines will force staff to raise issues about stress with their
employer earlier.  By Ross Wigham

New guidelines issued by the Court of Appeal look set to make it much harder
for employees to bring successful compensation claims for work-related stress.

Justices issued the guidelines earlier this month when they overturned
decisions by county courts to award £200,000 in stress-related compensation to
three workers.

The guidance states that if employers offer staff a confidential counselling
service with access to treatment it is unlikely they will be found in breach of
their duty of care.

Employees must also raise any concerns they have over stress at work with
their employer and give them an opportunity to address the issue before taking
legal action, if they are to have any chance of winning compensation.

The Court of Appeal decision could reverse the huge increase in
stress-related injury claims. Research by the TUC reveals a 12-fold increase in
stress claims last year, with 6,428 new cases reported, compared with just 516
for the previous 12 months.

Christopher Mordue, a partner with law firm Pinsent Curtis Biddle, believes
the decision will make it very hard for staff to make a work-related stress
claim unless they have first brought their problems to the attention of their
employer.

"Employers who have in place policies and procedures that deal with
stress will be in a very strong position to defend compensation claims,"
he said.

The Association of Healthcare Human Resource Management welcomed the new
guidelines. Tracy Myhill, the association’s president, thinks the ruling will
ensure staff highlight stress as soon as it becomes a problem so it can be
addressed before claims reach the courts.

She said: "It seems the ruling will make it easier for the employer.
Most NHS employers have good occupational health departments anyway and a big
part of that is confidential counselling or advice.

"Employees must tell their bosses if workplace stress is affecting
them, otherwise, how else will they know? It’s difficult for a huge
organisation like the NHS to keep tabs on worker stress levels, so the onus is
on staff to point it out. Overall, I don’t think it will change what we do that
much."

Socpo president Keith Handley is optimistic the stress guidelines will
encourage local government employers to support staff through measures such as
confidential counselling.

"For some time we have been advocating that local authorities look
after employees and I’d like to see all staff having access to counselling via
the occupational health function," he said.

However, not all employment law experts think the guidelines will have a
huge impact on the way stress claims are dealt with.

In fact, the CIPD is not convinced the Court of Appeal decision will prove
to be a watershed.

Diane Sinclair, CIPD employee relations adviser, warned organisations not to
be complacent and advised them to carry out risk assessments. "It’s a
useful clarification of their position and a common-sense decision, but these
barriers were largely in place anyway," she said.

"The key development is the counselling aspect, but even this should be
approached with caution and not be the sole feature of a stress policy. Firms
should be conducting risk assessments."

Law firm Eversheds also warned employers that the new guidelines will not
apply on all occasions, for example in discrimination cases.

Elaine Aarons, a partner at the firm, said it is not always necessary to
show stress-related illness was reasonably foreseeable.

She explained: "Despite the ruling, employers can still be found liable
for stress regardless of signs that the employee may be having difficulties.

"Victims of discrimination and harassment often suffer stress to such
an extent that it amounts to a psychiatric illness. In these cases, the
employment tribunal has the power to award damages.

"Under discrimination legislation it is not necessary to show that the
illness or injury was reasonably foreseeable."

UMIST’s Professor Cary Cooper, an expert on stress, thinks the ruling may
even lead to more stress claims as it will encourage more staff to raise the
issue with their employer at an earlier stage.

"All this does is clarify what we already know. I don’t think this will
mean fewer stress claims – if anything, it could mean even more.

"Unions will be urging staff to tell their employer if they can’t cope
so something can be done about it," he said.

www.hse.gov.uk

www.tuc.org.uk

www.porch.ccta.gov.uk/courtser/judgements.nsf

Stress cases that hit the headlines

John Walker

The Northumberland senior social worker made history by winning
the first stress settlement in April 1996. He was awarded £175,000

Beverley Lancaster

Employed by Birmingham City Council, Lancaster switched to a
housing officer role without training. She won £67,000 in July 1999 and
received the first acknowledgement by an employer that it was liable for stress

Randy Ingram

A gypsy site warden for Worcestershire Council, Ingram suffered
stress after being shot at and assaulted. He won £203,000 in January 2000

Roderick McLeod

McLeod said he developed psychiatric illness as a result of his
bullying boss at Test Valley Borough Council. He won a £200,000 pay-out in
January 2000

Guidance
notes

– Employers can usually assume that
employees can withstand the pressures of the job unless they know of a
particular problem

– If an employer offers a counselling
service with access to treatment, it will rarely be held in breach of their
duty of care

– Employees need to raise concerns
regarding stress with their employers and give the employer a chance to do
something about it

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