Stress at Work – A legal overview
The problem
Stress can adversely affect undermine the quality of an employee’s performance and is a major cause of absence from work, and can damage the employer’s business.
The scale of the problem
The Health and Safety Executive (HSE) estimates that 12.5 million working days were lost to stress, depression and anxiety in 2016/17 and that each new case of stress leads to an average of 23.8 days off work. Many employees who have been absent from work due to high levels of stress find the thought of returning to the same place of work stressful in itself. The longer someone is absent from work, the harder it can be for them to return without occupational health or medical intervention. This is particularly the case if there is no likelihood of a change in working practices when they go back.
What is stress
The HSE defines stress as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’. Stress is not an illness but can result in a detrimental effect upon a person’s physical or mental health. Stress can cause anxiety and depression and can increase the risk of headaches, heart attacks or alcohol / drug dependency.
What can cause stress at work?
There can be many factors which contribute to increased stress at work. Stress can be caused by both individual and organisational factors.
Individual factors may include personal problems external to work e.g family matters, money problems.
Organisational factors may include:-
• Excessive workload
• Poor communication
• Inadequate training
• Difficulties with colleagues
• Bullying
Stress can be caused where an employee is unable, whether through a lack of skill, training or confidence to fulfil the requirements of a job. The inability to complete a job could be the result of inadequate working practices, poor communication or insufficient support to perform their role. Generally, stress cannot be avoided completely. However, it is an employer’s duty to provide a system of work to manage levels of stress in the workplace.
What is too much stress?
Stress affects people differently. One person’s healthy pressure is another person’s unacceptable stress, what stresses one person may not cause stress to another.
There are factors which affect an employee’s ability to cope, including:-
• Age
• Experience
• Training
• Support available
• External factors, e.g stress outside work
An Employer’s duty
Employers have a legal duty to exercise reasonable care to ensure the safety of their employees. This will include providing a safe place and system of work. In order to discharge this duty, an employer will be required to carry out a risk assessment and act upon it.
Under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers are obliged to:-
• Undertake a risk assessment to assess the nature and extent of any risk to health, including stress; and
• Take action to control that risk both for employees generally and by way of plans for individuals, where necessary.
The duty is anticipatory in that employers should take steps to prevent high levels of stress causing ill health, e.g by a risk assessment or stress audit. They should also respond to the needs of individual employees to prevent their absence due to ill health, secure their return following a period of absence, e.g phased returns, further training or redeployment. Employers should be responsive to return to work interviews / occupational health recommendations to facilitate a successful return to work and to prevent any further absences due to stress.
The Risks to Employers
Employees who are suffering from stress are less likely to perform as well at work. Employers who fail to manage high levels of stress at work are likely to see high levels of staff absence and, potentially, a claim for compensation through the courts or employment tribunal.
Stress related work matters touch on many aspects of employment law and work related policies including:-
• Capability
• Sickness
• Bullying / harassment
• Grievances
• Disciplinary processes
• Reasonable adjustments / flexible working
• Equal treatment
One key factor in reducing high levels of stress is to have effective policies to resolve grievances about working conditions and bullying. Employers should have effective systems for appraising employees and offering appropriate support and training. Employees need to be able to raise concerns about their working conditions and employers must then have clear procedures for addressing their concerns. Not all stress can be avoided but some stress, caused, for example, by inadequate management or supervision or bullying can be addressed.
Many employees are reluctant to discuss their concerns about stress at work with colleagues, their employer or HR department due to a perception that it may be seen as a weakness or may affect future promotion to more senior roles. The reasonableness of an employer’s response will depend upon what they knew or ought to have known. It is difficult for an employer to address an issue with workload, bullying or grievances if they are not drawn to its attention.
Potential Compensation Claims
An employee who has been subjected to high levels of work related stress might be able to bring a number of different claims for compensation including:-
• A claim for breach of contract, if the employer has breached the terms of the employment contract.
• A claim for unfair dismissal, if the employer’s actions or failure to act amounts to a repudiatory breach of contract forcing the employee to resign and leave their employment.
• A claim for breach of their employment rights, if the employer has breached laws regarding working conditions e.g The Working Time Regulations by making them work long hours or without adequate breaks.
• A claim for breach of the Equality Act, if their employer has treated the employee less favourably due to a disability or has failed to make reasonable adjustments for their condition. e.g refusing a phased return or reduced working hours following stress related absences.
• A personal injury claim, if the employer has breached the duty of care, causing a foreseeable injury. This could be as a result of the employer’s acts or omissions or an employer being vicariously liable for the acts of co-employees during the course of their employment e.g bullying
• A claim for disability discrimination if the employer has failed to make reasonable adjustments for an employee’s disability.
The mere fact that someone is absent from work due to stress does not necessarily mean that they will be able to successfully bring a claim for compensation against their employer, as they will need to show that their employer has breached their duty of care. Many jobs, by their very nature, involve high levels of stress. Additionally, there may be many external non related factors which have contributed to the employee’s high levels of stress and consequential anxiety / depression. It will be necessary to identify the cause of the stress when considering any claim.
Early Intervention
Many employees feel empowered by seeking legal advice at an early stage to discuss the nature of the difficulties. Early advice often provides legal and practical solutions to their concerns and absence in order to assist employees in the recovery of their health and a return to their current employment or an alternative role.
Many employees feel unable to return to work after long periods of absence due to work related stress. Consideration should then be given as to whether there should be a Settlement Agreement (formerly known as Compromise Agreement) whereby the employee leaves their employment by consent with a financial payment to enable them to try to move on and seek alternative employment in return for the employee agreeing not to bring an employment related claim.
If you require further information or advice, please contact our employment law specialist, Phil Storey on 0121 270 1566 or phil@baileywright.com.
We conduct cases on a privately paying basis, through legal expenses insurance and, in appropriate cases, on a no win no fee basis.
Bailey Wright & Co
