Stress is fast becoming the largest single medically defined reason for absence from work. It is also a growing area for a range of claims against employers for various forms of mismanagement or negligence. It is therefore vital for employers to be aware of the dangers of failing to manage workplace stress.

Work-related stress is a health and safety issue and falls under the Management of Health and Safety at Work  The incidence of occupation stress claims on employers is growing and is predicted to be the next big growth area for litigation. This can be very costly in terms of both money and time.( Enforcement orders have already been issued  - see below for more info).

You may already be aware of the Health and Safety at Work Act 1974 and Management of Health and Safety at Work Regulations 1999, however you may not have realised that this includes a duty of care for the psychological health and safety of staff, as well as physical, and that you are required to risk assess accordingly.

Just as with other forms of Risk Assessment, you need to carefully examine what, in your workplace, could cause harm to people so that you can decide whether you have taken enough precautions or should do more to prevent harm.  The aim is to ensure that no-one gets hurt or becomes ill. The Health and Safety Executive have produced Management Standards for Stress to help organisations to comply.

Business Mentality can provide further information on this.

The message to employers is clear – your duty is to be reactive at an early stage. If an employee has been off work with stress, the employer should regard her/himself as under a positive duty to take the initiative. What will be involved in taking the initiative will be case-specific. It may entail no more than being sympathetic and making such reduction in the employee’s workload as is reasonably achievable, or, where practicable, it might mean flexibility in hours or a slight shift in role or responsibility.

The duty upon employers of small organisationsis not overwhelming, they simply need to be open to listening and responding when they become aware of stress related problems.

Basic steps towards  achieving a stress policy:

1. Accept that it exists and be open about it - invite discussion

2. Set up systems and procedures for dealing with it

3. Assess your risk with a stress audit and risk assessment

4.Become ‘stress-aware’     

5.Implement intervention strategies

6.If necessary, seek professional help and guidance.

Legislation

There is no specific legislation for stress management, however the 2 principal pieces of legislation that refer to stress and to which the Health and Safety Executive may refer to in determining stress risk are as follows:.

Management of Health and Safety at Work Regulations 1999 (duty to conduct a risk assessment)  

Health and Safety at Work etc Act 1974 (duty to protect health, safety and welfare of employees)

In addition :

Employment Rights Act 1996

The Public Order Act 1986 (prohibits use of language that may cause offence in a public place)

The Protection from Harassment Act 1997

The Working Time Regulations 1998

Discrimination Legislation

Human Rights Act 1998

Case Law

Regarding work-related stress, the following are regarded as being significant:

Intel Corporation (UK) Limited v Daw - 7 February 2007

This article first appeared in Personnel Today magazine 20/02/07.  

Mrs Daw was employed as a merger and acquisitions payroll integration analyst on a salary of £33,000 per annum. She had 13 years' service. In June 2001, 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.

At the initial trial, the High Court judge held that Daw'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. Although Daw had complained about her workload in e-mails, and was found in tears by one of her line managers, no urgent action plan was put in place immediately to reduce her workload.

Decision

The original trial judge assessed compensation for personal injury caused by stress at work and for loss of earnings in excess of £134,000. Intel appealed on the basis that Daw had free access to external confidential counselling, support and medical assistance, which she failed to use.

The Court of Appeal held that an employer's short-term counselling service could not have reduced the risk of a breakdown, since it did not reduce her workload - the cause of the stress. At most, such a service could only have advised the employee to see her own doctor. This was insufficient to discharge the employer's duty to provide a safe working environment. While it recognised that Intel could not have reasonably foreseen Daw's breakdown in health by virtue of her medical history, this was not considered to be relevant.

Key implications

This is an important decision, since the Court of Appeal has made it clear that where an employee is experiencing stress relating to excessive workloads, the presence of a workplace counselling service will not automatically serve to discharge the employer's duty of care in stress claims. Even if an employer has systems in place to support staff who are suffering from work-related stress, this is no substitute for putting an action plan in place to reduce their workload. Failure to do so will result in the employer being found to be negligent.

A failure by management to combat work-related stress - when made known to it - is likely to lead to a finding that the employer has failed to discharge its duty of care owed to its staff.

The court also accepted that the employer did not have prior knowledge that the employee was susceptible to work-related depression. But despite this lack of knowledge, the employer was still held liable, because it was aware of Daw's excessive workload.

Employers must 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.

July 1996 John Walker was awarded £175,000 against Northumberland

County Council for having suffered two stress related breakdowns resulting

from work overload. This was considered to be the first stress case using

health and safety legislation and established the precedent.

8 July 1999: in Noonan v. Liverpool City Council, Cath Noonan accepted an

£84,000 out-of-court settlement from her former employers Liverpool City

Council. Mrs Noonan was subjected to isolation (being sent to Coventry for

9 months), excessive supervision, being monitored at home whilst on sick

leave, and specious criticisms about alleged lack of time-keeping.

7 November 2001: former secretary Joy Pugh was awarded £90,000

damages at Swansea County Court for injury to health resulting from

bullying and harassment by her boss, the Unison Welsh regional secretary

Derek Gregory.

Spring 2002: in Hatton, Barber et al the Court of Appeal overturned awards

for stress.

These judgments say that if an employer operates an unsafe psychological working environment, the employee has a responsibility to alert the employer. A later House of Lords appeal reinstated some damages.