There are numerous acts and regulations in the UK that play a role in preventing and managing workplace stress. Christine Jenner of KSB Law explains what employers can do to help protect their employees.
Although there is no legislation in the UK that specifically deals with stress, the diversity and quantity of acts and regulations in this area can be daunting for employers, but an effective stress management strategy will have many positive effects on the workplace. Targets should include helping to reduce the cost of sick pay and recruitment, strengthening the employer's position regarding employers' liability insurance, reducing the likelihood of claims and subsequently improving morale.
Health and safety legislation imposes duties on employers to ensure the health, safety and welfare of their employees. This includes a requirement to carry out risk assessments on employees' work activities (including the risk of developing stress-related illnesses) and taking steps to prevent harm to employees. Employers are also under a duty to take reasonable care to prevent injury to employees in the workplace including injury of a psychiatric nature. If personal injury results from stress at work then an employee may be able to make a claim against his employer for negligence.
In the past the courts have suggested that a breach would only arise where the employer knows, or ought to know, that an employee is suffering from stress because of his working environment but more recently they have made it clear that each case will turn on its own facts and in some cases employers will be required to probe further.
EMPLOYEE DISMISSAL
Long-term or short-term sickness due to stress is an issue of capability and may be a fair reason for dismissal provided that the employer acts reasonably in treating the reason as sufficient for dismissing the employee in the circumstances. In order to demonstrate that a dismissal is fair, an employer should:
- Comply with the statutory dispute resolution procedures
- Consult with the employee
- Investigate the employee's illness and the prognosis
- Balance the company's needs with those of the employee
- Consider alternative employment
- Consider issues specific to that situation
The Disability Discrimination Act 1995 makes it unlawful to discriminate against an employee due to his disability and confers a duty on employers to make reasonable adjustments to that employee's role. The Act only applies to disabled employees and stress is not an illness so would not amount to a disability. However, stress-related conditions such as anxiety disorders and depression may amount to disabilities provided they last, or are likely to last, for a year or more.
In relation to an employee suffering stress, it is often safest to assume that the employee is protected by the act. Appropriate adjustments for employees suffering from stress might include a reduction in working hours, the reallocation of excessive work and/or confidential counselling.
WHO IS LIABLE?
More recently the House of Lords has confirmed that employers may be held vicariously liable for the acts of its employees under the Protection from Harassment Act 1997 – legislation initially designed to prevent stalking. This decision means that an employee can now sue an employer for damages for psychiatric injury resulting from harassment by a co-worker even where the employer is not itself at fault.
Harassment under this legislation occurs where a person pursues a course of conduct (usually this means similar conduct on at least two occasions) and they know, or they ought to know, that the conduct will cause a person to suffer alarm or distress.
STRESS IN THE WORKPLACE
Employers are often overwhelmed by the volume of law in this area and as a result have traditionally taken a reactive approach to stress management. This is risky and is often both ineffective and costly. The best advice for employers is to take a more proactive stance to stress in the workplace including taking the following practical steps:
- Identify the causes of stress and the level of risk to individuals and the organisation by carrying out risk assessments to highlight concerns and provide recommendations for action
- Introduce a stress management policy, take action to ensure the policy is known to employees, train managers and staff on it and monitor the effectiveness of such a policy
- Consider providing a confidential advice and counselling service
- Ensure they deal with each employee as an individual and that they are aware of particular employees' vulnerabilities
- Deal sympathetically with employees
- Take certified sickness absence due to stress or depression seriously, and inquire about the employee's problems and what can be done to ease them
- Monitor employees who could be at risk of suffering from work-related stress
- Where instances of stress do arise, be reactive at an early stage
Remember, employers do not have to offer unlimited support to employees but taking a proactive approach to stress management will save costs and make for a happier workforce.
