A recent report has revealed that stress is the leading cause of long-term absence from work. From a legal standpoint, dealing with stress is a difficult issue for employers. Kathryn Fielder, employment lawyer at B P Collins LLP, outlines the positive steps employers can take to minimise the risk of a claim.
The 13th edition of the Absence Management survey report, which is produced by the Chartered Institute of Personnel and Development (CIPD) in conjunction with healthcare provider Simplyhealth, found that in 2012 stress was the most common cause of long-term absence from work for the second year running, with nearly two-fifths of employers overall reporting that stress-related absence had increased over the past year. This rose to 52 per cent in the public sector.
Workload was most often cited by employees as the reason for absence due to stress, with management style, non-work factors, relationships at work and significant organisational changes also ranking highly.
Work-related stress occurs when a worker reacts in an adverse way to excessive pressures or demands in the workplace. It can affect a person’s mental and physical health. A distinction can be made, however, between abnormal pressure that is beyond the worker’s ability to cope with, and the normal pressures of work that an employer can expect people to handle without adverse effects.
Dealing with stress is a difficult issue for employers. In addition to specific duties under health and safety legislation, they owe their employees a common law duty to take reasonable care to safeguard their health and safety, and this includes a duty to control stress levels at work. Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress. It is foreseeable injury arising from an employer’s breach of duty that gives rise to a liability, and foreseeability depends on what the employer knows (or ought reasonably to know) about an individual employee. However, taking positive steps to ensure that the working environment is free from the sort of pressures that can have an adverse effect on employees makes good business sense, as doing so is likely to have a beneficial impact on the productivity and efficiency of a business.
Larger employers should make sure that managers are trained to recognise the signs of stress and know how to respond, and that they conduct themselves in a way that minimises stress and promotes a happy working environment. Employers should be aware that they can be found vicariously liable for the actions of their employees in certain circumstances.
An employer who is actively managing potential causes of work-related stress and preventing day-to-day pressures from becoming excessive is unlikely to be found in breach of their duty. The legal duty to carry out risk assessments includes arrangements for managing risks posed by work-related stress. It is therefore important to examine your workplace to spot the signs of existing work-related stress and to identify any potential sources of stress that could put employees at risk. These assessments should be kept under regular review. Do you, for example, monitor employees’ working hours to make sure they have appropriate rest breaks? Do sickness absence figures or staff turnover rates reveal a problem with high stress levels that should be tackled? Do you have policies in place to identify and deal with any instances of bullying and harassment?
Employers have a legal duty to consult with duly elected safety representatives of employees on health and safety matters, or with employees themselves where there are no formally elected representatives, and there is no exemption from this requirement for ‘small’ employers. However, you might also consider carrying out periodic employee satisfaction surveys seeking views on workplace morale and attitudes to stress, and asking for suggestions on ways of combating any problems.
If you become aware that an employee is suffering from work-related stress, you are required to take reasonable steps to prevent it. It is often helpful to agree an action plan with the employee concerned. Case law suggests that an employer who offers a confidential advice service to employees suffering from stress, with referral to appropriate counselling or treatment services, is less likely to be found to have failed in their duty of care, provided reasonable steps are taken at the same time to alleviate the problem – for example, by reducing that person’s workload or making changes to the way they work.
Employers are reminded of their specific duty under the Equality Act 2010 to make reasonable adjustments to the work or workplace where an employee is disabled, the definition of which can include persons who are experiencing mental health problems caused by stress where their illness is having a substantial and adverse effect on their ability to carry out normal day-to-day activities, the effect is long-term and the condition is likely to recur.
The message to employers is clear: stress cannot be ignored. You should have in place a formal stress policy and make sure that if and when stress-related complaints are made they are treated seriously, investigated fully and appropriate action is taken at once. Active intervention is required. Monitor the situation to see if the remedial action is working, and continue to do so until the situation is resolved.
Useful guidance on this topic, ‘Work-Related Stress – What the Law Says’, has been developed by the CIPD in conjunction with the Health and Safety Executive, the Advisory, Conciliation and Arbitration Service and Health, Work and Well-being. This can be found on the CIPD website.
For individual advice on any of the issues raised in this article, please call a member of the employment law team on 01753 279029 or email firstname.lastname@example.org.