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Graham Paul

Dundas & Wilson

Partner

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Legal Insight: Does your organisation pass the stress test?

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 Stress has become the most common cause of long-term absence from work for the first time, according to the Chartered Institute of Personnel and Development’s annual absence report, which was published last month.

Given this development and that 2 November was National Stress Awareness Day, it would make sense for organisations to take the opportunity to re-examine how they deal with stress in the workplace.
 
Work-related stress is disruptive and costly on a number of levels. Grievances or complaints about bullying tend to go hand-in-hand with on-the-job stress and, while the risks of receiving a personal injury claim (ie a negligence claim in the civil courts) for causing an employee’s work-related stress are low, the costs of a successful claim are high.  
 
Indeed, the disruption of such a claim, even if successfully defended, is significant. Although liability for personal injury claims is normally covered under your organisation’s insurance policy, other claims such as disability discrimination are unlikely to be.  
 
In addition, recent changes to the definition of disability under the Equality Act are anticipated to make it easier for claimants suffering from stress to claim that they suffer from a disability.
 
Finally, on a human level, nobody wants people to become unwell because of their job. Organisations function best when staff are engaged and enjoy their work, so there are a multitude of reasons for ensuring that you are on top of this issue.
 
Prevention
 
When aiming to prevent work-related stress claims, carefully consider the following: 
 
1. Do you encourage regular dialogue between managers and employees?
2. Is there a system – either formal or informal – whereby managers and staff can catch up at least monthly? Are these meetings documented (ie in an email or via an agenda)?
3. Before employees are promoted to management level, are they given training that covers:
  • Good people management techniques
  • Being able to recognise signs of stress, for example, when people change their behaviour at work
  • An understanding of their legal obligations from a liability perspective regarding the health, safety and welfare of their personnel
  • Health and Safety Executive management standards on stress? 
4. Is there a policy, intranet guidelines or any available information for employees on what they should do if they are suffering from stress at work? How accessible is this policy/guidance? Try typing ‘stress’ into your intranet search engine – what is the answer?
5. Do you conduct risk assessments in relation to any particular roles or do you have procedures in place to enable you to carry one out if necessary?
6. Do you have an employee counselling service? If so, is it widely-known about by staff and are they aware that they can access it for help with work-related stress? Try typing ‘employee counselling’ into your intranet search engine – what is the answer?
7. Do you conduct an annual survey that asks staff whether they have suffered from stress? If a survey is carried out, what actions result from any disclosures in that regard?
 
Managing employees who are absent with stress
 
If you have workers who are absent with stress, the following questions should be considered: 
 
  • Do you have a sickness absence policy that makes reference to the possibility of home visits?
  • Do you have a process to ensure that someone who is suffering from work-related stress has a dedicated point of contact during their absence (this should not be their manager if they are having issues with that manager)?
  • Do you have access to occupational health specialists so that you can refer the employee for a medical examination?
  • Do you have a standard list of questions that you can ask specialists in order to determine whether a worker is suffering from a disability?
  • Do you have internal or external resources to conduct a risk assessment in relation to someone’s role?
 
Resolving the issue and long-term support
 
Keep in mind the following key questions when trying to resolve a grievance or complaint about work-related stress: 
 
  • Do you have a policy on mediation and do you know who to turn to if you want to offer it?
  • Do you have policies on rehabilitation and phased returns to work or are members of your occupational health team trained on these issues?
 
If long-term support is required to manage instances of work-related stress in your organisation, consider the following: 
 
  • Do you have policies in place or management training to help prevent this issue occurring again?
  • Do you have policies or guidance about reasonable adjustments and on-going support for employees who have suffered from stress?
 
It is important to encourage staff to communicate with their managers and for managers to be trained in identifying signs of stress. Ideally, a policy should be in place to help you proactively consider the pertinent issues and ensure that your approach is consistent.  
 
But this policy needs to be actively implemented in order to be effective. Before rushing off to monitor everyone’s workload, however, consider the issue of liability in the stress at work context first.
 
Key points regarding liability for stress at work
 
An employer will not be liable simply because they have imposed an excessive workload on an employee. It would have to be reasonably foreseeable that such circumstances would cause injury to health. 
 
This generally means that a staff member would have advised their employer on at least one occasion (and normally more than this) that they were unable to cope and that it was affecting their health, which then led to a stress-related absence.
 
For employers to be liable, there must be some evidence that a worker, who has been known to be a conscientious and fit member of staff, is suffering from mental strain that could result in injury to health. Employers will then have a duty to inquire sympathetically into that condition.
 
For example, in Intel UK v Daw, the Court of Appeal criticised the employer for failing to make further enquiries after Mrs Daw broke down in tears at a meeting and produced a long note outlining her concerns over her workload that finished: “I cannot sustain doing the level of work I am currently doing.…and I want out.”  
 
Put simply, employers should not ignore the warning signs. While they are not entitled to be overly intrusive, enquiries need to be sufficiently thorough to ascertain that the condition is not attributable in part to stressful working conditions.  
 
In these cases, an employer should be cautious about labelling the employee concerned as someone less able to cope with the ordinary stresses of life and work than others (which could, of course, have disability complications too). Where there is evidence that their condition is at least partly attributable to work, employers should refer to any relevant material issued by the HSE and carry out a risk assessment. 
 
The mere fact that a worker does not opt to use the workplace counselling service will not necessarily provide a defence, however, particularly where, as in Intel v Daw, the problem could only have been resolved by management intervention. 
 
 
Graham Paul, partner, and Valerie Dougan, professional support lawyer in the employment team of UK law firm, Dundas & Wilson.
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Graham Paul

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