Don't let stress lead to legal battles

Stress at work is a major issue for employers and by failing to manage its effects, businesses run the increased risk of stress-related claims, says Gareth Edwards. Employers must consider the impact of stress in the workplace and methods of managing it.

There are number of measures that can be taken to, firstly, consider the impact of stress in the workplace, and secondly, to assist in keeping it from turning in to a claim by the employee affected.

Design a stress/wellbeing policy

Employers should introduce a policy which sets out the definition, causes and effects of stress at work and the responsibilities of the employer, managers and employees in tackling the problem. The policy should make it clear that this is an issue that the employer takes seriously and give employees guidance as to how to deal with the effects of stress, and how to raise these concerns within the workplace. It is important to ensure that any policy supplements the resources provided to tackle the problem and training should be provided, particularly to managers who will operate the policy.

Employers should also review their other policies to ensure that they are all adequate in dealing with the issues. Anti-bullying and harassment policies, grievance procedures, disciplinary procedures, and any flexible working policy should all be carefully considered.

Use return to work interviews after sickness absence

By making effective use of return to work interviews, an employer should be welcoming the employee back to work, ensuring they are fully fit to return to work, and identifying reasons for the absence. Interviews should assist in identifying and addressing any problems that may be causing, or contributing to, the absence whilst agreeing the priorities for the employee's return to work.

Employers will need to bear in mind the recent introduction of the 'fit note'. Previously, GPs have either said that 'you should not work' or 'you should return to work'. The fit note will now allow GPs to advise whether the person is 'not fit for work' or 'may be fit for work taking account of the following advice'. Employers should now actively consider making adjustments that facilitate an employee's return to work after sickness.

Carry out stress audits

A stress audit involves talking informally to staff, either individually or in groups, to find out where there may be concerns. Employers should look to engage their employees in the process and let employees know why they are carrying out the exercise and what they trying to achieve. A well-performed stress audit should assist in identifying and assessing problem areas and preventing future problems, or cure any existing ones.

Don't wait for it to be a problem

People generally are uncomfortable with change and it can be a source of stress. Employers should consult regularly with employees, their representatives, staff associations or unions, on organisational changes. Consultation should always be a two-way process.

Provide adequate training to managers

Managers play a key role in identifying and managing stress within an organisation. They are likely to see the problems that cause stress first hand and will often be the initial point of contact when an individual is feeling stressed. Managers should also consider effective training in respect of prioritisation of workloads; avoiding placing unreasonable demands on employees and provide appropriate delegation of duties.

Make health and safety of employees a priority

It is an implied term of every employment contract that the employer will take reasonable steps to ensure the safety of its employees at work. This includes a duty to take reasonable care not to cause psychiatric harm to an employee by reason of the character or volume of work imposed on them.

The 1995 case of Walker v Northumberland County Council is a case of note here. Mr Walker was a social worker who suffered a nervous breakdown as a result of his excessive workload. On his return to work, he asked for additional help but it was not provided. Mr Walker suffered another breakdown and was eventually dismissed on the grounds of permanent ill health. The High Court found once Mr Walker had returned to work, his employer was at least aware that there was a risk of a further breakdown if he did not receive adequate support. Mr Walker was awarded £175,000 in damages.

Beware of constructive dismissal

The implied term of mutual trust and confidence runs through all employment contracts. A breach of the term allows and employee to claim for constructive dismissal. To succeed in a constructive dismissal claim, an employee must show that the employer's behaviour is so unreasonable that it amounts to a fundamental breach of the implied term of trust and confidence. This entitles the employee to leave employment and treat them self as having been constructively dismissed.

This type of claim is increasingly being used for stress-related cases.

Avoid unfair dismissal

An employee with over one year of continuous service can bring a claim for unfair dismissal in an Employment Tribunal. Stress-related problems commonly present themselves as absence from work and should be treated as any other sickness-related absence.

The dismissal of an employee, who claims to be suffering from stress, may arise in various situations, for example:

• An employer may dismiss where an employee's absence is unauthorised;

• Where an employee's absence record is unsatisfactory and that record consists of persistent unrelated short-term absences; or

• Following long-term sickness absence where the employee is unable to return to the workplace or job in the foreseeable future.

If an ex-employee lodges a tribunal claim it will be necessary to defend the claim, or reach an out of court settlement, and the typical costs of defending a claim at tribunal are in the region of £15,000 plus VAT. If a tribunal finds that a dismissal was unfair it can award compensation consisting of a basic award up to a maximum of £11,400 and a compensatory award up to £65,300.

It is essential that employers think about what can be done in the future to prevent the problems identified occurring. Ignoring the problem may prove expensive in the long run.