Lawyers Philip Paget and Suzanne Baxter identify
actions employers can take now to prepare for the HSE's stress management
standards, to be launched in November 2004.
According
to the Health and Safety Executive (HSE), work-related stress costs employers
approximately £3.7bn a year. There is an average of 92,000 new cases occurring
each year in the UK, and reportedly up to 13.4 million days are lost each year
due to stress at work.
On
this basis, the prudent employer would benefit from getting to grips with
work-related stress, and finding ways to reduce it.
Management standards
To
help employers tackle stress in the workplace, the HSE is working towards
producing a set of Management Standards, due to be launched in November this
year. These are intended to enable employers to measure stress levels,
recognise the causes and work with employees to resolve any issues.
They
are expected to be given the status of HSE guidance, which means they will not
be legally binding, but will have evidential value. The standards are aimed at
helping employers understand their duties to their employees under current
legislation and case law, and to help them gauge whether they are fulfilling
them.
The
HSE's study aims to set two
standards within organisations, which employers should consider:
-
At least 85 per cent of workers should be satisfied that they are able to cope
with the demands of their job, have a say about the way they do their work and
receive adequate information and support from colleagues and superiors
-
At least 60 per cent of employees should feel able to agree that they are not
subject to unacceptable behaviours at work; understand their roles and
responsibilities, and are frequently engaged in organisational change.
The nature
of the illness requires employers to have a greater awareness of the jobs
they provide, their employees and any warning signs they may display. While the standards provide employers with a
useful yardstick, what practical day-to-day steps can employers take now to
achieve them?
Positive steps
-
Employers should consider the provision of a confidential advice and
counselling service for staff, with referrals for appropriate treatment. This
is likely to play a significant role in preparing a successful defence to a
stress claim.
-
Consider setting up health screening questionnaires for new members of staff.
This enables you to consider an applicant's vulnerabilities at an early stage
alongside the position they have applied for.
-
Document your consideration of the management standards, and how you consider
your company will meet those targets.
-
When completing company risk assessments or updating old assessments, consider
stress in terms of possible risks to staff. When documenting the steps you are
taking to reduce or remove the risk, include the positive steps you have taken.
-
Put a system in place for monitoring start and finish times and overtime, and
follow up the monitoring with meetings or informal discussions where necessary.
Points to consider
An
employer is entitled to assume that an employee is able to cope with the normal
pressures of a job, unless the employer is aware of some particular problem or
vulnerability regarding an individual. The test is what the employer knows, or
ought to have known, about the employee; the specific job the employee does, or
a combination of the two.
Employers
should consider the following:
1. The nature and extent of the work done by
the employee
-
Is the workload normal or excessive?
-
Is the work particularly challenging or demanding, intellectually, physically
or emotionally?
-
Does the employee make demands that are unreasonable or greater than others in similar
positions?
-
Are there high levels of sickness or absenteeism in that department/position?
2. What is known about the employee?
-
Is the employee already suffering from illness attributable to stress at work?
-
Do they have a history of stress-related illness?
-
Is the employee excessively absent or for prolonged periods, which is out of
character?
Employers
are entitled to take what they are told by their staff at face value unless
there is good reason or evidence to the contrary. It is not enough for the
employee to state that occupational stress has caused the harm; the employee
must show that their employer was in breach of duty, and that the breach
caused, or materially contributed to, the harm.
An
employer will only be in breach if they failed to take reasonable steps in all
the circumstances.
If
a claim comes before a court, the judge would take the following factors into
account:
-
The magnitude of risk of harm occurring
-
The gravity of the harm that may occur
-
The cost and practicability of preventing the harm
-
The size of the employer's operations and resources when considering a breach.
A
diagnosis of occupational stress does not automatically infer an employer
breach. So while the number of stress-related claims might be on the increase,
they are by no means always successful.
The
other area of concern is the risk of constructive unfair dismissal. If an
employer is well aware that the demands of a particular job are excessive and
ignores complaints from the employee, and reasonable preventions or remedies to
the problem, then there is a risk of a claim being made in the employment
tribunals as well.
An
affected employee could resign and claim the employer's failure to address
their concerns amounted to a fundamental breach of the contract of employment.
By Philip Paget, partner and head of
employment law, and Suzanne Baxter, solicitor, Gordons. Call them for more information on 0845 273
3050
