Are employers legally required to tackle stress?
Employers have duties under the Management of Health and Safety at Work Regulations 1999 to assess the risk of stress-related ill health arising from work activities; and under the Health and Safety at Work Act 1974 to take measures to control that risk.
Are there any standards that can assist employers in tackling stress?
Management standards have been issued by the Health and Safety Executive (HSE) to assist employers to tackle stress on an ongoing basis. These standards are supplemented by guidance issued by Acas to assist employers in meeting their legal obligation to ensure the health, safety and welfare of staff and to assess health and safety risks. The HSE is committed to reduce the incidence of cases of work-related ill health by 20% by 2010. It has enforcement powers to ensure that employers comply with their duties under the health and safety legislation.
How do employers identify stress in the first place?
Employers must try to identify stress, regard-less of how difficult this is. They must be on the lookout for signs of stress, such as mood swings, a deterioration in staff relationships, working long hours with no correlating increase in productivity, employees not taking all of their leave, poor performance and absenteeism.
The HSE has identified six areas of common and persistent pressures where there is a particular risk of stress: workload, control, support, relationships, role and change management. Employers are encouraged to assess the risks within their own organisation
to identify their stress points.
What happens if employers fail to comply with their duties under the legislation?
One hospital trust was given an improvement notice when it was reported that stress was not managed adequately. Failure to respond to the notice may have resulted in court action for the trust. If pursued through the courts, non-compliance by complacent employers will expose them to criminal prosecution and a potentially unlimited fine.
In addition to criminal sanctions, employers could also find themselves on the receiving end of claims by employees, including claims for personal injury, constructive dismissal and disability discrimination.
What steps should prudent employers take to tackle stress in the workplace?
There are a number of key actions that employers can take:
- Demonstrate and encourage awareness, understanding and openness in relation to the issues of stress and mental health in the workplace.
- Adopt and adhere to formal policies on stress and mental health in the workplace and commit to addressing both issues. This should cover three main areas: risk assessment, employee support, and management support.
- Allow employees to make reasonable adjustments – for example, flexi-time, working from home or quiet rooms to help them to manage mental health problems and work-related stress issues.
- Offer resources or procedures to help manage stress at work and generally improve mental wellbeing, such as stress awareness training, access to counselling or stress-busting initiatives.
Have there been any recent case law developments?
In Hartman v South Essex Mental Health and Community Care NHS Trust [2005], the Court of Appeal reviewed the general principles recently considered in Barber v Somerset [2004]. In this case, the court did not accept that the employer knew the claimant was vulnerable because she had disclosed the fact that she had suffered a nervous breakdown and was taking medication when completing a confidential questionnaire produced by the occupational health (OH) service.
The court found that it was not appropriate to attribute to the employer knowledge of confidential medical information disclosed by the employee to the OH department. Furthermore, the Court of Appeal commented that the mere fact that an employer offers an OH service does not mean that the employer has foreseen the risk of psychiatric injury owing to stress at work to any individual or class of employee.
The case of Harding v The Pub Estate Co Ltd [2005] highlights the critical element of foreseeability, particularly in relation to first instance breakdowns.
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Harding was an experienced pub manager working in a rough area of Manchester. He suffered a heart attack, which he alleged occurred because of stress caused by work. He was successful at trial and the employer appealed. The Court of Appeal allowed the appeal, primarily on the ground that the employer was not given a sufficiently clear warning of the impending ill health. Harding had made several complaints to his employer but these were primarily about the environmental factors (the clientele and the neighbourhood), rather than his health.
Alison Loveday, head of employment law, Berg Legal
