Member Article

Companies have a liability for workplace stress

Companies owe their staff a duty of care in respect of their Health and Safety and, increasingly “well-being” whilst at work.

Control of workplace stress is now firmly established as forming part of the employer’s duty to an employee.

Companies when assessing risk must include the risk to health posed by levels of stress. Recent cases have, however, highlighted the difficulties faced by employees who seek to bring personal injury claims based on workplace stress.

To some extent the onus is on the employee to bring matters to the employer’s attention, however, companies cannot be complacent. Risk assessment is still important, and a stress policy as part of the Health and Safety is highly recommended.

Some recent guidelines

The key question is whether this kind of harm to this particular employee was “reasonably foreseeable”. “Foreseeability” depends on that which the employer knows {or ought to reasonably know} about the member of staff. An employer is usually entitled to assume that the employee can stand the normal pressures of the job, unless he or she knows of some particular problem or vulnerability.

Factors likely to be relevant in answering this question can include:-

• The nature and extent of the work done by the employee
• Is the workload much greater than is normal for the particular job?
• Is the work particularily intellectually or emotionally demanding for this employee?
• Are the the demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs?
• Are there signs of others doing this job are suffering harmful levels of stress?
• Is there an abnormal level of sickness or absenteeism in the same job or the same department?

Signs to look out for;-

• Has the employee a particular problem or vulnerability?
• Has the employee already suffered from illness attributable to stress at work?
• Has there recently been frequent or prolonged absences which are uncharacteristic?
• Is there any reason to think that these are attributable to stress at work, for instance; because of complaints or warnings from the employee or other employees?

Employers are generally entitled to take what they are told by their staff at face value, unless they have good reason to think to the contrary. The employer does not necessarily have to make searching enquiries of the employee or seek permission to make further enquiries of their medical advisers.

In breach of duty?

Employers will only be in breach of duty if they have failed to take the steps which are considered to be reasonable in the circumstances, bearing in mind;-

• The risk of harm occurring
• The gravity of the harm
• The costs and practicality of preventing it - and
• The justifications for running the risk

The size and scope of the employer’s operation, its resources and the demands it faces are relevant factors in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for instance; in any reassignment of duties

An organisation which has a “Confidential Advice Service” with referral to appropriate counselling or treatment services is less likely to be found in breach of duty.

Please see below, the remarks from Dr Libby Cripps MB.BS:-

As a Medical Practicioner with over twenty years’ experience in Occupational Health in several sectors, and having been a Partner in the family business, I have some insights into the difficulties of managing this area.

First of all, it is important to state my own belief that rewarding work with attendant community prosperity is the best method of public and individual health promotion, and it is therefore it is essential to achieve a balance between employee well-being and business well-being and not to overlook the stress levels of managers and business owners.

Although the points of risk assessment Andrew has outlined are the ones which will be expected in law, it is important not to forget that under-fulfillment at work can easily generate depression which can result in long-term costly sickness absence or problems with “presenteeism” and hidden domestic problems are often another factor.

My personal case studies repeatedly demonstrates that the manager or supervisor who is able to achieve the most effective outcomes in the management of stress issues is the one who is able to establish effective relationships with employees. By this, I mean it was rare that that prolonged sickness absence, particularly those with a diagnosis related to stress did not have significant indicators of a background of resentment about the way the employee felt that they had been treated, often for long periods before any absence began.

This resentment also seemed to be a factor in how likely someone is to bring a claim against a company, even whilst remaining at work.

The “Social” aspect in what is known as “Bio Psychosocial” features of illness is something that we can address in subsequent articles.

If you don’t have a policy on Stress then please contact me, via my website for a FREE download.

The policy covers definiton of stress and signs of stress.

Responsibilities and function of safety representatives and the role of the safety committee,

This was posted in Bdaily's Members' News section by Andrew Dane .