Managing incapacity: how to manage workplace stress

WHAT LEGISLATION COVERS STRESS?

To complicate matters, there is no legislation in the UK that specifically deals with stress and how to control it. However, a number of health and safety provisions create obligations on employers in relation to the physical and mental well-being of employees, as discussed in Health and safety of staff. Specifically, these are the duty to take reasonable care of employees and others under the Health and Safety at Work etc Act 1974 and the obligation to conduct assessments of risk (including the risks of psychological ill health) under the Management of Health and Safety at Work Regulations 1992. The whole rationale of modern safety law is to conclude regular risk assessments which clarify preventative or protective measures with which an employer needs to comply as a result of his general duties.

Working Time Regulations

There are also the Working Time Regulations 1998 to consider. These implement the European directives on working time and young workers, which were adopted in Europe as health and safety measures. Unless a specific derogation applies the regulations give workers an entitlement to:

Surprisingly then, the long-hours culture is frequently cited as a major contributing factor to stress.

Liability for personal injury

As stated in Health and safety of staff , in addition to the statutory duties under health and safety legislation, employers are under a common law duty to take reasonable care of the health and safety of employees in the workplace. This duty arises under negligence, on which most personal injury claims are based. To succeed in bringing a claim, an employee will have to show that an employer has breached the duty of care owed to the employee and that the breach of duty has caused the employee a loss. In practice, most cases will turn on whether the employee's injury was reasonably foreseeable by the employer. In this respect, it will be far easier to show that damages resulted from, say, bullying, than it would in a stress-related claim based on work pressures as it is more foreseeable that the employee would suffer personal injury as a consequence of the former.

The Hatton case

However, the pendulum has recently swung in favour of the employer when faced with claims for stress induced personal injury following the Court of Appeal's decision in the Sutherland v Hatton; Somerset County Council v Barber; Sandwell Metropolitan BC v Jones; Baker Refractories Ltd v Bishop [2002] EWCA Civ 76. This was a significant decision that signalled the way for employers to take a more robust approach to this type of claim.

In Hatton, the Court of Appeal was very keen to point out that the normal negligence principles apply to stress cases and there are no special rules. This means, as stated above, that an employee has to show that an employer has breached the duty of care owed to the employee, that it was reasonably foreseeable that an injury would result from the breach and that a loss in the form of personal injury has occurred.

The crucial question, therefore, is whether the illness caused by stress was reasonably foreseeable. An employer's knowledge of risk is increasing all the time and since the court will look not only at what you did do, but what you ought to have done, the question of whether something was reasonably foreseeable does require a fair degree of lateral thinking by those at the frontline dealing with the sick and stressed.

In this regard, the court in Hatton said you can take information at face value - that although you need to be vigilant looking for tell-tale signs, unless you are aware of any particular vulnerability, you are entitled to assume that an employee can cope with the 'normal pressures' of the job. You are not expected to be clairvoyant and make searching enquiries of the employee. For example, an employee returning to work after a period of sickness absence without any further explanation is usually taken to indicate that they are fit to resume work.

Key issues

The key question is whether this kind of harm to this particular employee was reasonably foreseeable by the employer. The court said there are two elements - injury to health and occupational stress, which is attributable to stress at work (as distinct from stress from other factors).

Foreseeability will depend on what the employer knew or ought reasonably to have known about the individual employee.

Because of the nature of mental disorder, it is harder for an employer to foresee mental injury than physical injury, but it may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless the employer knows of some particular problem or vulnerability.

A foreseeability test should be the same whatever the employment - there are no occupations which should be regarded as intrinsically more dangerous to mental health.

Unfair dismissal and stress

Under the Employment Rights Act 1996 (see Unfair dismissal ), you may defend a claim of unfair dismissal if you can show that the reason for the dismissal is a potentially fair one. Quite often performance problems and stress will be closely inter-related. Most stress-related dismissals will come under the potentially fair reason of 'capability'.

Once you show a potentially fair reason for dismissal, the Employment Tribunal will go on to consider whether you acted reasonably in dismissing the employee for that reason. This means that if you have concerns about the performance of employees, it will always be necessary to investigate the underlying reason for the poor performance. You will need to establish whether the employer's conduct has caused or contributed to the employee's problems, whether the problem is sickness-related and if so whether it amounts to a disability. It is essential that a fair procedure be adopted at this investigatory stage and before deciding upon any course of action.

Stress and disability discrimination

Stress and potential liability under the Disability Discrimination Act is undoubtedly one of the most problematic issues for those having to administer sickness absence policies and the disciplinary process where performance is an issue. It is commonplace for employers to pussyfoot around those who are signed off on long-term sickness absence with stress for fear of a disability discrimination claim. The same side-stepping is prevalent for an increasing number of employees who manage to produce doctor's certificates testifying to the employee's stress the moment he or she is being disciplined for capability. Ironically, it is not particularly easy for the employee to prove that their stress is a disability under the Disability Discrimination Act. As discussed in Unfair dismissal, the definition of disability has four tests:

As stress itself is not an illness it would not amount to a disability. It would need to be a clinically well-recognised illness such as those listed in the World Health Organisation's International Classification of Diseases. However, it is possible for stress-related conditions or where the stress exacerbates a pre-existing condition, to amount to an impairment. Examples of stress-related illnesses which have been successful include clinically recognised depression, diabetes, schizophrenia and post-traumatic distress disorder.

Even if the employee satisfies the first test by establishing an impairment, many fall at next hurdle as the prognosis is not long-term. To satisfy the definition, the substantial effects must last, or be likely to last, one year. This means that most event-specific forms of depression such as bereavement or the break up of a marriage are unlikely to qualify. It is therefore important that employers seek independent medical opinion to establish whether the employee's particular stress-related illness amounts to a disability.

Assuming there is a disability, the Disability Discrimination Act also obliges employers to make reasonable adjustments where any arrangements made by the employer place the disabled person at a substantial disadvantage when compared with non-disabled employees. In the context of a stress-related impairment, reasonable adjustments might include a reduction in working hours, extra supervision and counselling.

THE SIX STEPS YOU NEED TO TAKE

The remedial steps will depend on your size and resources, and obviously the bigger and richer you are, the more you will have to do. Taking remedial steps, however, is a balancing act. Active steps you ought to consider taking, therefore, are:

MANAGING STRESS CHECKLIST

CASE STUDy

The HR department has grown considerably in the past two years. It now comprises 12 HR assistants, four HR managers and one HR director. In Bingo's team there are three assistants.

Bingo is not a very popular member of the team. Since Dave Dingle and Tracy Tinker joined they have made his life miserable. They constantly make fun of his weight and play practical jokes on him. For some time now his blood pressure has been high and he has started having panic attacks on the bus on his way into work.

To Shaker's surprise, Bingo's performance has generally deteriorated since Dingle and Tinker came on board approximately 18 months ago. He has seemed generally down in the dumps. Bingo's absence record is one of the worst in the company. He takes one to two days off almost every fortnight. Shaker has been managing his performance for some time now and recently started the formal disciplinary process with him as there has been no improvement. Shaker is at the end of her tether. Bingo has not told Shaker about the panic attacks, but he has told her about his blood pressure. Shaker has not mentioned anything to him but suspects his diet is the problem.

Shaker decided to give him a written warning following the disciplinary hearing in the hope that this would force an improvement. Since then, Bingo's doctor has signed him off sick with stress.

The HRdirector was irate when she found out. She wants Shaker to manage Bingo proactively and dismiss him if necessary. How should Shaker handle him going forward?

MODEL ANSWER

Warning signs

From the outset, it is important to identify the issues. Bingo has a sickness record that shows a pattern of short-term persistent absence. As is often the case, the problem is more complex than a simple susceptibility to poor health. Sickness is often a symptom of some other problem. Panic attacks and high blood pressure suggest that underlying Bingo's absenteeism, there is obviously a serious issue.

Key issues

The issue seems to be that Bingo is suffering from stress, which may have personal injury or health and safety implications for ABC. In addition, behind the stress, there is a bullying problem, which could give rise to not only health and safety implications, but also possible grounds for constructive dismissal if the bullying is not addressed.

Medical evidence

Before Shaker can address Bingo's problems, she needs to find out more about his actual condition first. Assuming that Bingo's terms and conditions give ABC the right to require him to be examined by the company doctor, Shaker should arrange an appointment for him. Even if the contract does not, it is still reasonable to ask Bingo to see the company doctor.

If Bingo is willing to submit to an examination, there are two possible benefits. First, Shaker will obviously find out precisely from what condition Bingo is suffering. Second, and perhaps more importantly, it may show that Bingo is still committed to returning to work.

If ABC has the right to require Bingo to submit to a medical examination, then the Briscoe case confirms that refusal to comply with a reasonable request can be a disciplinary matter. As long as Bingo is warned that a persistent refusal to see the company doctor may lead to his dismissal, ABC would be able to go down this route with him if he unreasonably refuses to attend a medical examination. If ABC does not have the right to examine they could write to Bingo's GP for further details about his condition provided they have his consent.

What is 'stress'?

Either way, ABC is going to be in a position of writing to a doctor for information. ABC needs to be mindful of the fact that, whether it is dealing with a company doctor or Bingo's doctor, it is vital to give him or her as full guidance as possible on what they want to know. Many doctors will just scribble 'stress' on a sick note without giving full or any details about an employee's condition. What ABC needs to know is if 'stress' actually means something else?

Is it a disability?

In particular, it is vital to determine whether Bingo is suffering from a condition which constitutes a 'disability' under the DDA. Alternatively the stress may have exacerbated an existing condition so that it has become a 'disability' for the purposes of the Act. So, ABC must make enquiries of the doctor to ascertain whether Bingo has a physical or mental impairment which has a substantial long-term adverse effect on his ability to carry out normal day-to-day activities.

Reasonable adjustments

ABC also needs to ask the doctor to comment on whether Bingo could undertake any alternative employment, and, if ABC has a particular post in mind, it should be specific.

ABC needs to consider:

Access to documentation

It is also important to remember that Bingo may be able to request copies of any medical reports under the Access to Medical Reports Act or the Data Protection Act. The key point here is to assume that Bingo will be able to see a copy of anything that is produced, whether favourable or unfavourable to ABC's objectives.

The information-gathering process about Bingo's condition is of course important in terms of managing Bingo's incapacity. It is also important in producing a good paper trail. Should it ever find itself facing a tribunal claim from Bingo, ABC will be able to demonstrate that it has acted reasonably, informing itself of all the circumstances.

Weighing up the issues

Assuming that Shaker has obtained a full diagnosis of Bingo, she now needs to assess the situation. In conjunction with the business, Shaker should now determine the cost/benefit analysis of managing Bingo back to work.

Factors she needs to assess in terms of getting him back are:

Shaker also needs to assess the possible claims that Bingo could make if he were dismissed and thus ABC's possible exposure. In light of this analysis, the decision that now needs to be made is whether Bingo has a future at ABC or not.

Managing Bingo back IN to the business

Return-to-work interview

First, Shaker needs to tackle the root causes of Bingo's absence and set him goals for the future. A good way of managing these issues would be through a return-to-work interview. In such an interview Shaker can map out a strategy of the key factors involved to make Bingo a productive part of the team again. Shaker can use the interview to give Bingo the clear message that he has a future at ABC. In terms of addressing the specific problems, she should ask him, aside from stopping the bullying, what ABC can do to lessen the stress of his work. Shaker could discuss counselling for Bingo on his panic attacks and other therapy regarding his weight problems and high blood pressure.

Setting objectives for Bingo

The interview can also be used as an opportunity to make equally clear what the company now expects from Bingo. Assuming that the bullying is dealt with, Shaker can impress upon Bingo, in a more informal setting than a disciplinary interview, that the company now expects his previous level of performance to return. Of course, Bingo's sickness will need to be monitored. She should set him timescales over which to improve, such as three to six months. Shaker can highlight that if his persistent absenteeism continues, given the removal of the bullying, it may become a formal disciplinary matter.

Dealing with the bullies

The root cause of Bingo's problems is the unacceptable behaviour of others and any successful management strategy will need to deal with this. Shaker therefore needs to investigate the bullying thoroughly. As well as perhaps disciplining the bullies, she should make sure that the possibility of transferring either the bullies or Bingo out of the team is explored. This is something that can only be done in consultation with, and with the prior agreement of, any of the employees to be moved. If Bingo accepts, the changes should be trialled first, with a review after a prescribed period - perhaps a couple of months.

0-? days is the period during which ABC may identify that there is an absence problem, depending on its absence monitoring system; it is also the period during which ABC informs itself through medical evidence about Barry Bingo's diagnosis and prognosis

On the first day he is next in the office, conduct a return-to-work interview to try and deal with the underlying issues and find out more from Bingo himself; at this meeting ABC can also take the opportunity to remind Bingo of the standard he is expected to meet

At day 14 ABC should then hold a review meeting to ascertain how Bingo is doing and to see whether his performance and attendance is starting to improve

By day 28, the second review meeting, ABC will be able to identify whether there has been an immediate improvement, in which case Bingo will have been successfully managed back in to the business, OR, whether there has been no immediate improvement in which case Bingo will be taken through the disciplinary process

If Bingo has shown some improvement, but has been unable to sustain this or his improvement has gradually declined, then again he will possibly be heading for disciplinary action, although this could take up to 90 days to decide, depending on the sporadic nature of his improvement rather than at day 28.

Managing Bingo OUT

Sickness-related dismissal

ABC might come to the conclusion that it wants to manage Bingo out of the business. In that case, ABC should look to dismiss Bingo for capability, which can include sickness or poor performance. If dismissing for capability on the grounds of sickness, for such a dismissal to be fair, Bingo's prognosis must support that this is the case. In addition, a fair procedure must be followed.

ABC should consider:

If it could be shown that to "swap" Bingo with another HR Assistant in another team would result in unacceptable disruption to the business, then the employer should not be afraid to dismiss. In addition, ABC could dismiss even if it is not satisfied that Bingo is sick enough to be incapable of doing his job. Such a dismissal would almost certainly be unfair, so ABC would need to protect itself by entering into a compromise agreement with Bingo. The cost of any package should be factored into Shaker's initial analysis. Remember also that a sick employee has very limited ability to mitigate his or her loss so packages might well have to be more generous.

Performance-related dismissal

The alternative is to dismiss Bingo for his poor performance. It seems clear that Bingo has not performed to the required standard for some months. Again, ABC must, of course, also follow a fair procedure. It must set Bingo targets which need to be met within a specific timeframe. If he fails to achieve these targets, Shaker should not be afraid to recommend dismissal.