Work-related stress: overview

Elizabeth Stevens of Steeles (Law) LLP begins a series of articles on work-related stress with an overview that looks at why employers need to be alert to the signs of work-related stress. Employers may be liable where employees bring work-related stress claims, and should address signs of stress before they begin to have a negative impact on their business.

Introduction

The most recent statistics available from the Health and Safety Executive (HSE) (on its website) indicate that self-reported work-related stress, depression or anxiety accounted for an estimated 11.4 million lost working days in Britain in 2008/09. While musculoskeletal disorders are the most common type of work-related illness, mental ill health, which accounts for 31% of new cases of work-related illness, gives rise to more working days lost (57% of certified absence).

A recent survey by the CIPD ("Employee outlook: working life in a recession - autumn 2009") concluded that the proportion of people reporting that they feel under excessive pressure at work had increased over the preceding six months, with 42% feeling under pressure either every day or once or twice a week. According to the survey, 82% of employees indicated that their organisation had been affected by the recession; 29% having made redundancies over the preceding six months. While it appears that the rise in unemployment has slowed in recent months, the knock-on effect of redundancies is being felt in the workplace, with the CIPD survey showing that employers are increasingly freezing pay and recruitment and cutting back on training. Significantly, 47% of respondents to the survey reported an increase in stress at work as a result of the recession.

The impact of the recession on those who have retained their job should not be underestimated. Going through a redundancy selection process is stressful in itself, and those who remain in work often face the threat of further redundancies if the economy does not improve. In addition, redundancy survivors may have to work longer hours to cover the work previously carried out by colleagues who have been made redundant.

It is essential for employers to take steps to address stress in the workplace, not only to avoid potentially costly legal liabilities but also to improve employee morale and performance and to minimise the number of skilled staff who seek employment elsewhere once the jobs market improves. Stress and stress-related conditions account for a consistently large proportion of sickness absence, particularly long-term sickness absence among non-manual staff. Relationships with clients and colleagues can also be affected when employees are suffering from stress, with the resultant negative impact on performance. Therefore, reducing the levels, and impact, of stress in the workplace has significant economic benefits for employers.

Early indicators

Employers should be alert to the risks of stress before employees display obvious symptoms. Some jobs are inherently stressful due to the nature of the work, while others may become more stressful due to increased workload pressures. Some employees may be more prone to stress, perhaps because of external factors over which their employer has no control.

Signs that an employee is suffering from stress, over and above his or her usual response to fluctuations in the demands of the job, will vary according to how he or she reacts to stress. Stress may be difficult to spot in some employees, particularly if they work in a high-pressured environment in which it is viewed as a sign of weakness to reveal that they are under stress (with the result that they attempt to conceal evidence of being stressed). Training staff and managers to recognise signs of stress, raising awareness in the workplace, recognising when stress should be tackled and knowing what steps to take to alleviate it, is a good starting point to reducing the impact of work-related stress. Typical symptoms of stress include:

  • unexplained absences or increased incidence of sick leave;
  • poor time-keeping;
  • performance issues;
  • increased use of alcohol, drugs and/or tobacco;
  • poor judgment and indecision;
  • uncharacteristic displays of emotion (for example tearfulness and/or anger);
  • withdrawal of social contact; and
  • working unnecessarily long hours.

Legal liabilities

The legal framework for claims involving stress and psychiatric damage is complex, and an individual may have more than one potential course of action to pursue. The main areas of liability are set out in more detail below. Ex-employees may also be able to bring claims for unfair or constructive dismissal.

Health and safety

All employers have a general duty under health and safety legislation to ensure, as far as is reasonably practicable, the health, welfare and safety of their employees. This includes physical health and the prevention of workplace accidents, but also extends to mental health. A key element of an employer's duty is to undertake workplace risk assessments, which should include potential risks from work-related stress. When carrying out a risk assessment, employers should bear in mind that roles that would not ordinarily be regarded as stressful may become more stressful as a result of certain changes, such as business reorganisations or new regulatory requirements.

The HSE provides guidance for employers on how to carry out risk assessments for work-related stress. It has published a set of management standards (on the HSE website) to assist and encourage employers to comply with their legal obligations to manage work-related stress. The management standards are voluntary and are designed to provide employers with a yardstick with which to measure how they are dealing with workplace stress. The standards identify the key risk factors. In respect of each risk factor, simple statements about good management practice are made, against which the employer can measure its performance, with a view to improving conditions and preventing stress.

A breach of health and safety legislation can result in the criminal conviction of the employer or an individual within the organisation. The HSE has enforcement powers and there is no direct right for individuals to take action against their employer under health and safety legislation. However, a civil claim for negligence can be brought where an individual has suffered harm ("personal injury"). If the employer is in breach of its health and safety obligations this may provide good evidence to support the claim.

Negligence

In addition to their statutory duties under health and safety legislation, employers are under a non-statutory, common law duty to take reasonable care of the health and safety of their employees. A breach of this duty may give rise to a claim for negligence. To succeed in a claim, an employee would need to show that: the employer breached the duty of care owed to him or her; it was reasonably foreseeable that an injury would result from the breach; and loss in the form of personal injury has occurred.

The leading case in this area is Sutherland v Hatton [2002] IRLR 263 CA, in which the Court of Appeal heard four conjoined stress cases. In its judgment, the Court of Appeal set out guidelines on employers' obligations in relation to workplace stress. In particular, it identified factors relevant to deciding whether or not an injury to health was foreseeable, which would depend on characteristics particular to the employee and the demands placed on him or her by the employer.

The Court emphasised that the employer should be vigilant for signs of stress but is entitled to assume that an employee can withstand the normal pressures of the job, unless it knows of any particular problem or vulnerability.

Once the employer is alerted to the possibility of stress, it is in breach of duty only if it fails to take steps that are reasonable in the circumstances, bearing in mind how serious the potential risk may be. The size of the employer's operation, its resources and the demands it faces are all relevant to deciding what is "reasonable".

The Court of Appeal suggested a number of actions that an employer that is on notice of stress should take, including offering sabbaticals, redistributing work, counselling and "buddying". However, an employer is not expected to redistribute work at the expense of another employee nor to take steps that are unlikely to do any good.

The House of Lords subsequently overturned one of the four cases (Barber v Somerset County Council [2004] IRLR 475 HL), but the guidelines in the Court of Appeal judgment were approved as useful practical guidance and have been broadly followed by the courts in subsequent cases.

The Court of Appeal in Hatton suggested that an employer that offers confidential help (for example counselling) to employees suffering stress is unlikely to be found in breach of its duty. However, more recently, the Court of Appeal, in Intel Corporation (UK) Ltd v Daw [2007] IRLR 355 CA, commented that whether or not the provision of a counselling service is enough to discharge the employer's duty will depend on the facts of each case. In Mrs Daw's case, the Court was satisfied that a short-term counselling service could not have done anything to ameliorate the risk or help Mrs Daw to cope with it.

In an even more recent case, Dickins v O2 plc [2009] IRLR 58 CA, the Court of Appeal held that the psychiatric ill health suffered by the employee had been reasonably foreseeable and caused by her employer. As she had made it clear that difficulties at work were affecting her health, some responsibility passed to the employer. Management intervention was necessary and the employee should have been sent home and referred to the employer's occupational health department. The Court decided that mere reference to the employer's counselling service was insufficient in the circumstances of the case.

Disability discrimination

Stress itself is not a disability, but stress-related conditions such as depression could fall within the statutory definition of "disability" under the Disability Discrimination Act 1995 (DDA). For the DDA to apply, the impairment must have a long-term and substantial adverse effect on the individual's ability to carry out day-to-day activities. The DDA was amended in 2005 so that a mental impairment no longer has to be "clinically well-recognised" to fall within the definition of disability, potentially broadening the scope for stress-related conditions to qualify.

Employers are under a duty to make reasonable adjustments for disabled employees, where any arrangements they make place a disabled person at a substantial disadvantage. For a stress-related condition, suitable reasonable adjustments might include allowing the individual a phased return to work, a reduction in working hours, mentoring, redistribution of duties and providing access to a counselling service.

The difficulty for employers is in establishing whether an individual is suffering from the temporary effects of stress or has a longer-term condition that is exacerbated by stress and that could amount to a disability for the purposes of the DDA. When faced with a doctor's sick note citing "stress/depression", it is usually best for employers to assume that a diagnosis of depression could very easily amount to a disability. In any event, to avoid potential liability for a personal injury claim, it is crucial for employers to establish at an early stage what the cause of an individual's stress might be and whether it is work-related or due to some external factor such as relationship problems.

Next week's topic of the week article will look at the measures that employers can take to support employees who may be suffering from work-related stress, and will be published on 15 February.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.