Attendance Managementby Kate Russell
The adverse reaction people have to excessive pressure or other types of demand placed on them. It arises when they worry that they cannot cope.
The word ‘stress’ has been used to describe a variety of states, ranging from mild anxiety to serious psychiatric illness. Stress itself is not an illness but it can be a cause and/or be a symptom of a number of serious illnesses so it should not be ignored by an employer.
HSE figures for 2017 suggest that 595,000 UK workers suffered from work-related stress, depression or anxiety (new or long-standing) and 15.4 million working days were lost due to work-related stress, depression or anxiety.
Source 2017/18 Labour Force Survey.
Risks to the organisation
The risks to an employer of not dealing with workplace stress include:
- Breach of the health and safety legislation
- Constructive unfair dismissal claims
- Disability discrimination claims
- Personal injury.
Knowing whether to treat an employee who is suffering from stress, anxiety or depression as disabled can be difficult. It is usually defined by the length of time an individual has been absent from work or is likely to be absent from work. For example, an employee who has had no history of stress prior to taking a few weeks’ sick leave would not likely be considered disabled in the first instance. If an employee has been off work for a substantial and/or ongoing amount of time, however, this person is more likely to be classed as disabled and therefore protected from disability discrimination under the Act.
Failing to identify or take action when employees are suffering from stress, anxiety and depression can leave employers open to discrimination claims. To avoid this make reasonable working adjustments in instances where stress and depression are an issue, and certainly when formal diagnosis has been given.
Whether stress is a disability will depend on the facts of each case.
Mr Herry was an architect who was employed by Dudley Metropolitan Council and the governing body of Hillcrest School. He brought 90 wide-ranging allegations that spanned a four-year period.
The issue of disability was analysed by the EAT, which looked closely at Herry’s medical evidence. His sickness absence notes were found increasingly to refer to ‘work-related stress’ and ‘stress and anxiety’. Mr Herry had no sick note that referred specifically to depression. The employment tribunal had found that his stress was “very largely a result of his unhappiness at what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events”.
The EAT found that in these types of cases, doctors are more likely to refer to ‘stress’ rather than ‘depression’. In such cases, the employment tribunal is not bound to find that stress is a disability. Being unhappy with a colleague or a decision made by an employer, having a grievance or refusing to compromise at work are not mental impairments – they may simply reflect an individual’s personality or character.
Ultimately, any medical evidence presented to the employment tribunal must be considered with care and, in the end, the question of whether there is actually a mental impairment is one for the employment tribunal to assess. It said in this case there was a “dearth of information” in the medical evidence as to the nature of ‘work-related stress’.
It is worth noting that the tribunal looked in detail at what medical evidence there was, and reiterated the clear distinction drawn by Lord Justice Underhill in J v DLA Piper between a mental impairment (which is capable of being a disability) and a reaction to life events (which is not).
Make sure you review the medical evidence carefully and, even in the face of someone who is clearly vexatious, to act reasonably.
Establishing liability in personal injury cases
Historically, it has been very difficult for an employee to claim damages for psychiatric injury against their employer, as it was necessary to show that such psychiatric injury was reasonably foreseeable.
There is a common law duty in every contract of employment that the employer will take care of employees’ health and safety. The first case in which an employee successfully claimed against his employer was Walker v Northumberland County Council, in which the employer was held to be liable for psychiatric injury caused to a social services employee through stress. The case determined that employers may be in breach of their duty of care towards employees if they place them under such a degree of work pressure as to damage their health.
W was employed as a social worker dealing with cases of child abuse. His workload had steadily increased over a number of years and in 1986 he had a nervous breakdown. The following year he had recovered sufficiently to return to work and he was promised additional resources to help him with his workload. Despite this, the support failed to materialise and he had a second breakdown six months later. W sued the council, arguing that they were in breach of their duty of care to provide a safe working environment.
The court found that the council could not be held liable for W’s first breakdown: the employer could not have reasonably foreseen that W was exposed to a significant risk of mental illness through his job.
In relation to the second nervous breakdown, however, the court held that the council could have reasonably foreseen that such an outcome was a real risk, given that the kind of workload and work pressures which led to the first breakdown had persisted. The council was in breach of its duty of care by failing to provide effective support to alleviate W’s workload.
Mr Walker succeeded in his claim because he was able to establish four factors:
- That the employer had breached their duty of care towards him by being negligent
- That he had suffered a clinical psychiatric injury or illness
- That the injury to health was caused by stress at work
- That the injury to his health was reasonably foreseeable.
As a result of this case, employers should be aware that they need to be mindful of the possibilities of employees suffering damage to their mental health as a result of workplace pressures, such as an overload of work. In particular, where an employee has complained about an excessive workload, of work-related stress or of unreasonable demands being placed upon him at work, then the employer should take action to alleviate the problems. Where a valid complaint has been made and the employer has failed to take appropriate remedial action, and where the employee’s health suffers, this could be classed as a breach of the duty to take care, entitling the employee to claim damages.
In 2002, the Court of Appeal considered the question of occupational stress claims in a number of cases.
They made it clear that the same principles apply to stress claims as to ordinary industrial accidents. In other words, it is necessary to show that the kind of harm suffered by the particular employee was reasonably foreseeable.
Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. It is not enough for the employee to show that occupational stress has caused the harm. He must show that a breach of duty committed by the employer caused, or materially contributed to, the harm suffered.
Click here for key points from the Court of Appeal judgement 2002.
Employers must take proactive steps to protect employees. Relying on an employee assistance programme will not usually be sufficient to provide a defence.
D was a senior manager with 13 years’ service. D’s work was rated as outstanding by her employer. But her reporting lines were confused, and prioritising the demands made upon her by different managers was problematic. D had complained about her workload in emails, and was found in tears by one of her line managers, but no action was taken to reduce her workload. She suffered a breakdown caused by chronic depression arising from her excessive workload. She issued proceedings against her employer for damages for personal injury arising from the employer’s negligence, breach of statutory duty and duty of care.
The company argued that D had free access to external confidential counselling, support and medical assistance, which she failed to use.
Eventually the case came before the Court of Appeal. The court was not impressed by the company’s argument. It found that an employer’s short-term counselling service could not have reduced the risk of a breakdown, since it did not reduce her workload, which was the cause of the stress. The most such a service could have done was to have advised D to see her own doctor. This was not enough to discharge the employer’s duty to provide a safe working environment. While it recognised that Intel could not have reasonably foreseen D’s breakdown in health by virtue of her medical history, this was not considered to be relevant.
A failure by an employer to tackle known work-related stress is likely to lead to a finding that the employer has failed to discharge its duty of care owed to its staff.
You must explore and if appropriate put measures in place to reduce workloads when receiving complaints from staff who cannot cope. Otherwise, you will risk paying considerable damages in claims for personal injury caused by the working environment.
Although there is no legislation specifically covering stress, employers have a responsibility to identify and reduce or remove stressful factors in the workplace. There is a general duty of care under health and safety legislation. Employers have a duty to carry out a health and safety risk assessment. This includes identifying risks to mental health as well as physical health. You should take whatever steps you reasonably can to reduce or remove the risks. If you fail to do so and that failure results in an employee suffering a reasonably foreseeable injury, you are likely to be required to pay compensation to the employee for loss that they may suffer as a result of the injury. There is no cap on the compensation that can be awarded.
In addition, you have an obligation under the Health & Safety at Work Act to take reasonably practicable measures to ensure the health, safety and welfare of your employees. A failure to do so can result in a criminal conviction and a fine and/or imprisonment. More specifically, the Working Time Regulations also impose limits on average weekly working hours and require you to give employees daily and weekly rest breaks and paid holidays.
Reducing the riskSee also Stress Management.
Employers can help to manage and reduce stress in the workplace by taking a variety of actions. You should consider all the factors which can create stressful working conditions, such as the work environment, organisational culture and management style, job design, organisational structures and personal issues, and you should take preventative action where possible.
Some possible measures to reduce stress are listed below.
- Conduct stress audits or surveys to measure stress and its causes. Carry out a risk assessment to identify the risks to the health and safety of any person arising out of, or in connection with, work or the conduct of the undertaking. This includes risks to both physical and mental health.
- While most people respond well to a certain level of pressure, employers need to look for the personal and organisational signs that an individual may be under more pressure at work than they can cope with.
- Consider having a stress policy, defining stress and containing organisational commitments in order to minimise any potential work-related stress claims. Such a policy would set out guidance to both employees and managers on how to effectively identify and manage stress in the workplace;
- Introduce training on stress awareness, coping skills and managing stress.
- Set out the responsibilities of all the parties;
- If possible, you should make available a confidential counselling service for employees and bring it to their attention, for example, by referring to it in staff handbooks and by advertising it on notice boards, websites and newsletters.
- Employment practices and job specifications should be reviewed to assess whether it is really necessary for employees to work long hours. Regard should be paid to the requirements of the Working Time Regulations.
- When appointing a person to a job that may be stressful, emphasise the stressful nature of the work and ask him to consider carefully whether he can cope with such demands.
- If it is likely that employees will work long hours, consider asking them to sign the opt-out from the 48-hour week. Note that an employee must not suffer detriment for refusing to opt out.
- Ensure that employees have a reasonably managed workload and that management systems are in place to give employees the kind of support they require to carry out tasks satisfactorily.
What to do if an employee complains of stress
There may be warning signs of increased stress levels from employees, such as higher-than-usual numbers of sickness absences or changes in usual patterns of behaviour.
Where an employee actually tells the employer that he cannot cope, it may be hard for the employer to evade liability for any subsequent breakdown unless reasonable steps had been taken to reduce the burden on the employee.
If an employee does complain that work-related stress has caused them an illness or injury, investigate the causes and symptoms with the employee and take appropriate steps to understand the medical issues. Try to establish what has caused the condition and, if it is a work-related issue, what you need to do in order to address the cause (if it is possible to do so). Find out what the employee is doing to address the matter and what you can do to help.
Where appropriate, it can be helpful to agree with an employee a plan for them to return to work in a limited capacity. People are sociable animals and being at home with nothing but daytime TV for company can impede recovery. Including them in the social context of the work environment reduces the sense of isolation.
All of this should happen before you take any steps against the employee concerned in relation to their absence.
If absence from work for stress is likely to lead to dismissal, you must ensure that you have proper medical evidence of the employee’s state of health and explore the possibility of a return to work with the employee.
A helpful guidance booklet on this area has been produced by the Health and Safety Executive (HSE): Tackling work-related stress: A manager’s guide to improving and maintaining health and well being.
The assessment should identify what the risks are, how they arise and how they impact on those affected. This information is needed so that the decisions on how to manage those risks are made in an informed, rational and structured manner, and the action taken is proportionate.
A risk assessment should usually involve identifying the hazards present in any working environment or arising out of commercial and/or work activities, evaluating the extent of the risks involved, and taking into account existing precautions and their effectiveness.
There is no set form. However, the HSE provides a useful guide entitled Five Steps to Risk Assessment.
The HSE has also published a set of ‘Management Standards’ to help employers comply with their legal obligations and to prioritise and measure performance in managing work related stress.
HSE 5-step risk assessment process
- Look for hazards.
- Decide who might be harmed and how.
- Evaluate the risks and decide whether the existing precautions are adequate or whether more should be done.
- Record your findings.
- Review your assessment from time to time and revise if necessary.
More information can be found on the HSE’s website.
Also see the topic on Health and Safety.