Managing stress: Legislation
Section two of the Personnel Today Management Resources one stop guide to managing stress, covering: relevant legislation on workplace stress; key legal cases; and what to consider when looking at personal injury claims. Other sections.
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There are a number of key areas of law that are relevant to the prevention of stress. None of them are specifically concerned with workplace stress, but all of them have terms that must be taken into consideration when dealing with stress issues.
Health and Safety at Work Act, Etc, 1974
Management of Health and Safety at Work Regulations 1999
Working Time Regulations 1998
Disability Discrimination Act 1995
The Protection from Harassment Act 1997
Health and Safety at Work Act, etc, 1974
This Act states that an employer has a duty to protect the health, safety and welfare of employees, so far as is reasonably practicable. The main thrust of this Act in relation to stress at work is that employers must ensure there are adequate systems in place for the allocation of work, the management of flowchart (including the avoidance of work overload), the stimulation of effective working relationships, the environmental conditions in which people work, and the hours that people work.
One of the main problems employers have had in the past when trying to understand and apply the conditions of this Act has been in defining the systems of work management that might lead to high levels of stress. Now, however, the HSE has defined a set of standards which it believes sufficiently cover the main causes of workplace stress. (See Section 4 )
Management of Health and Safety at Work Regulations 1999
This legislation introduces two key elements in the fight against workplace stress. The first is 'risk assessment', and the second is the 'principle of prevention'.
Risk assessment
Every employer must make a suitable and sufficient assessment of the risks to the health and safety of its employees while they are at work, and of the risks to the health and safety of persons not in employment arising out of or in connection with the business being carried out.
The legislation puts the onus for health and safety risk management firmly in the hands of the employer. It also states that the risk assessments must be reviewed by the employer if there is reason to suspect they are no longer valid, or there has been a significant change in the matters to which the risk assessment relates.
Businesses that employ five or more persons have a legal duty to record the findings of risk assessments.
Principle of prevention
This principle says that any preventative measures that arise from the risk assessment must be carried out to comply with the regulations. If risks cannot be avoided, then other protective measures must be carried out. The regulations specify the control measures that must be used in applying the principle of prevention, as well as the order in which they must be applied:
a. Avoid the risk
b. Prioritise risks that cannot be avoided
c. Combat the risk as source
d. Adapt the work to the individual (ergonomically, technologically, and through flowchart management)
e. Adapt to technological progress
f. Replace dangerous conditions with non-dangerous or less dangerous conditions
g. Develop a prevention policy to cover aspects of work that may lead to work- related stress, including flowchart planning, working conditions and work relationships
h. Give collective measures priority over individual measures
i. Provide appropriate instructions to employees.
Working Time Regulations 1998 - The Working Time Directive
Long and irregular working hours are a significant contributor to workplace stress. The Working Time Directive limits by statute the number of hours people can work.
Maximum weekly working time
A worker's working time, including overtime, shall not exceed an average of 48 hours for each seven days. At the moment, there is an opportunity to 'opt out' of the Working Time Directive (although this may be removed in the future). The limit shall not apply in relation to a worker who has agreed with his employer in writing that it should not apply in his case (this can be terminated by giving seven days' notice to an employer).
In addition to the number of hours worked in a week, there are also regulations controlling work breaks.
Daily rest
An adult worker is entitled to a rest period of not less than 11 consecutive hours in each 24-hour period during which they work for the employer. An adult worker is also entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period during which they work for the employer. Where an adult worker's daily working time is more than six hours, they are entitled to a rest break.
There are some exceptions that include people who work in air, rail, road, sea, inland waterway and lake transport sectors, and those who work at sea.
There are also exceptions in relation to junior doctors and those who are employed as a domestic servant in a private household.
Another key exception to note is in relation to those who, on account of the specific characteristics of the activity in which they are engaged, the duration of their working time is not measured or predetermined or can be determined by the worker. This includesmanagement executives or other persons with autonomous decision-making powers.
The Protection of Harassment Act 1997
A person must not pursue a course of conduct which amounts to harassment of another person, including alarming a person or causing a person distress. Conduct includes 'speech'. A 'course of conduct' must involve at least two episodes.
Disability Discrimination Act (DDA) 1995
This piece of legislation is not as relevant as other legislation already referred to since workplace stress is not a disability.
Workplace stress could lead to disability ifsevere and prolonged and diagnosed as such by a psychiatrist or other appropriately qualified professional.
Case Law
There have been a number of important cases in the courts in the past few years, which have helped to determine the limit of liability for employers in respect of the above legislation. These are the important ones:
Walker v Northumberland County Council 1996
Sutherland v Hatton 2002
Young v the Post Office 2002
Walker versus Northumberland County Council
This was the first time in a UK court that a judgment was found in favour of the plaintiff against an employer for stress at work. The court held that the employer, Northumberland County Council, was liable for psychiatric illness due to the plaintiff's working environment.
Although it is now eight years old and there have been many cases since, the parameters of the case are still critical to the legislative environment pertaining to employer liability.
Key facts about the case
Mr Walker was a social worker with no previous history of psychiatric illness. At the end of November 1986, he suffered a nervous breakdown following an increase in his workload. He returned to work in March 1987 after five months' sickness absence. He was advised by his GP not to go back to the same level of work as before and his manager agreed to arrangements to help alleviate the workload. When he returned to work he was faced with a backlog of casework that had built up while he was absent. But crucially, the arrangements made with his manager for alleviating workload were not put into place.
Walker suffered another nervous breakdown in September 1987 and was dismissed in February 1988 on the grounds of ill health.
The court judgment stated that the employer was not liable for the first nervous breakdown since this was not reasonably foreseeable. However, it stated that the second breakdown was reasonably foreseeable, especially since the arrangements that should have been applied for alleviating workload were not applied.The court found the employer was in breach of its duty of care to Walker in relation to the second breakdown. Prior to an appeal, Walker negotiated an out-of-court settlement of £175,000 from his employer.
Case law did not move on substantially from the Walker case until 2002 when the Court of Appeal heard cases relating to four cases where employees had been successful in cases against their employer for work-related stress.
Hatton v Sutherland and Others
Hatton
Mrs Hatton was a Liverpool teacher and was signed off with depression in 1995. She never returned to her work and subsequently retired on ill-health grounds. Evidence in court showed that her pattern of absence and her illness could have been attributed to things other than the pressure of work, including outside of work problems that she was experiencing. She failed to prove to the court that the harm she was suffering was due to the pressure of work and that it was foreseeable.
Jones
Mrs Jones was an administrative assistant between 1992 and 1995. She complained of work overload and was promised additional support, but this support was never put in place. There was also evidence that her manager dealt with her in a harassing manner, threatening her with her job if she complained. As a result, she did not complain or go off sick, suggesting that there were no grounds for the employer foreseeing a nervous breakdown that she subsequently suffered.
The court found in her favour stating that the threats to her health due to the unreasonable demands were sufficiently foreseeable and that the employer was in breach of its duty of care in continuing toplace such unreasonable demands on her and for not providing the additional help that had been promised.
Bishop
Mr Bishop had a nervous breakdown and attempted suicide in February 1997. He was subsequently dismissed in 1998 having never returned to work. He had worked for his employer for 18 years, but had found it difficult adjusting to a re-organisation of the working practices that took place in 1992 when the firm was taken over by another company.
He had to adjust to a new shift pattern and a wider variety of tasks, and he complained that he found it hard to adjust. His doctor advised him to change his job, but he did not tell this to his employer. Neither did he have any significant absence prior to his breakdown to give a cause for concern to his employer.
The court found that his employer could not have been aware of his impending breakdown and that the demands placed on him were not unreasonable or excessive. Another key element of the judgment was that his employer could not be expected to re-organise the working practices just to suit him and, therefore, there was little it could have done even it had been aware of his problems.
Barber v Somerset County Council
This case has become a very important case in the context of stress-related liability. The Court of Appeal found in favour of Mr Barber, but the case subsequently went to the House of Lords.
Barber was a schoolteacher who developed symptoms of depression in 1995, which worsened in early 1996. However, he discussed this with no-one. The evidence also failed to show that Barber was more over-worked that any of the other teachers in the school.
Following a period of absence with depression in May 1996, Barber raised with his employer the fact that he was concerned about his health.
The following autumn, the headmaster asked one of his colleagues to keep an eye on him. In November 1996, he lost control in the classroom and was asked to immediately stop work.
The Court of Appeal found there was not enough evidence to indicate that the problem had continued after the summer holidays and, therefore, the duty of care of the school to take affirmative action was not triggered.
However, the case subsequently went to the House of Lords.
Although the school management was aware of Barber's condition, it failed to take what the Lords termed 'the prudent approach', which was 'to investigate and provide assistance'. The Lords suggested that a sympathetic employer would have investigated his situation 'to see how his difficulties might be improved'. The school failed to do this.
The decision by the Lords indicates that as soon as an employer is aware of an employee's stress-related condition, it has a duty of care to help.
How difficult is it to succeed with litigation?
In Hatton v Sutherland , the Court of Appeal laid down 16 propositions that should be considered when examining personal injury claims.
These propositions make it very difficult for a claimant to succeed in court. The employee must report the stress and prove that the employer knew or ought to have known that they were likely to become ill.The onus is on the employee to prove that their condition was reasonably foreseeable. However, the House of Lords decision means that the employer must also be proactive in stress situations by 'giving positive thought for the safety of its workers'.
Relevant legislation can be viewed at www.legislation.hmso.gov.uk
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Employers are liable to prosecution if they do not comply with the law. In the case of workplace stress, individuals can take their employer to court and could be awarded damages, paid for by the employer, if the court finds in their favour. Employers are also obliged to comply with
'inspection'. The HSE may issue an improvement notice, requiring the
employer to improve any or all of its procedures if it finds that the
employer is not complying with the legislation pertaining to stress. It
also has the authority to prosecute in the event of non-compliance. This
could result in fines and/or
imprisonment. |
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1. There are no special mechanisms applying to claims for psychiatric (or physical illness) or injury arising from the stress of doing the work the employee is required to do. 2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. This has two components: (a) an injury to health (as distinct from occupational stress) which: (b) is attributable to stress at work (as distinct from other factors). 3. Foreseeability depends upon what the employer knows, or ought reasonably to know, about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but 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 it knows of some particular problem or vulnerability. 4. The test is the same whatever the employment - there are no occupations that should be regarded as intrinsically dangerous to mental health. 5. Factors likely to be relevant in answering the threshold question - is a kind of harm to a particular employee reasonably foreseeable? - include: (a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are the demands being made on this employee reasonable when compared with the demands made of others in the same or comparable jobs? What are the signs that 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? (b) Signs from the employee of impending harm to health. Has the employee a particular problem or vulnerability? Do they already suffer from an illness attributable to stress at work?Have there recently been frequent or prolonged absences which are uncharacteristic? Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from the employee or others? 6. The employer is generally entitled to take what it is told by the employee at face value, unless it has good reason to think to the contrary. The employer does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of the employee's medical advisers. 7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that something should be done about it. 8. The employer is only in breach of duty if it has failed to take the steps that are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm that may occur, the costs and practicability of preventing it, and the justifications for running the risk. 9. The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable. These include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties. 10. An employer can only reasonably be expected to take steps that are likely to do some good. The court is likely to need expert evidence on this. 11. An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. 12. If the only reasonable and effective step would have been to dismiss the employee automatically, the employer will not be in breach of duty in allowing a willing employee to continue in the job. 13. In all cases, therefore, it is necessary to identify the steps that the employer both could and should have taken before finding it in breach of his duty of care. 14. The claimant must show that the breach of duty has caused or materially contributed to the harm suffered.It is not enough to show the occupational stress has caused the harm. 15. Where the harm suffered has more than one cause the employer should only pay for that proportion of the harm suffered which is attributable to its wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment. 16. The assessment of damage will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event. Source: HMSO |
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Section two: Legislation Section three: The business case for a stress prevention strategy Section four: What to do about workplace stress Section five: Developing a strategy
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