Stress at work - the legal implications
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, warns Gareth Edwards, a partner in the employment team at legal firm Veale Wasbrough Vizards.
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 consider the impact of stress in the workplace and help keep it from turning into a claim by the affected employee.
Design a stress/wellbeing policy
Employers should introduce a policy that sets out the definition, causes and effects of stress at work and the responsibilities of the employer, managers and employees in tackling it.
The policy should make it clear that this is an issue the employer takes seriously and give employees guidance on how to deal with the effects of stress and how to raise these concerns in 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 they are 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 and identifying reasons for the absence. Interviews should help identify and address any problems that might be causing, or contributing to, the absence while also agreeing the priorities for the employee's return to work.
Employers need to bear in mind the recent introduction of the fit note. Previously, GPs said: "you should not work", or "you should return to work". The fit note allows 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 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 might be concerns. Employers should attempt to engage employees in the process and let them know why they are carrying out the exercise and what they trying to achieve. A well-performed stress audit should help identify and assess problem areas to prevent future problems, or cure existing ones.
Don't wait for it to be a problem
Generally, people 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 in 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 providing 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 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 High Court case of Walker v Northumberland County Council in 1995 is worth noting. 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 that when Mr Walker 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 damages.
Beware of constructive dismissal
The implied term of mutual trust and confidence runs through all employment contracts. A breach of the term allows an 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 themselves as having been constructively dismissed.
This type of claim is increasingly being used for stress-related cases.
Avoid unfair dismissal
An employee with more than 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 might arise in various situations. For example:
• An employer might 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 a former employee lodges a tribunal claim, it will be necessary to defend it, or reach an out-of-court settlement. The typical cost of defending a claim at tribunal is 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 put in place measures to prevent future problems. Ignoring the problem might prove expensive in the long run.
