Stress at work: frequently asked questions

This week Vince Toman of Lewis Silkin answers frequently asked questions on stress in the workplace.

What are the signs of a stressed employee?

Employees will often not want to admit to their employer or themselves that the pressure of work is getting to them. However, because the law expects employers to predict and avoid reasonably foreseeable risks of injury to their employees, including the damaging effects of stress, employers must be on the look out. It is not sufficient to wait for an employee to complain.

Some of the common symptoms of stress in employees are:

What should employers do to prevent stress at work?

It is important that managers and colleagues are able to identify potential problems at an early stage, so training can be useful. There should be easy ways for employees to raise concerns about work pressure both informally and formally, perhaps via general supervision and management, as a specific part of a grievance procedure or even under a dedicated stress policy.Giving access to trained confidential counsellors can be useful, though their role needs to be carefully thought through, particularly with regard to the action that they can and cannot take once they know that an employee is stressed. Where an employee is suffering from stress a course of action should be agreed with him or her and the outcome monitored.

What should an employer do where it suspects that an employee is stressed but he or she denies that this is the case?

Employers are under a duty to protect employees' health and safety, regardless of whether or not an employee is willing to run the risk of harm. For this reason, it is important for an employer not to take such a denial at face value. Concerns should be raised in a way that makes it easy for the employee to be honest (for example away from a particularly tough manager). If the employee continues to deny that he or she is stressed, the employer should make a dated note of all conversations on the subject and make sure that the situation is monitored.

How does it affect the situation if an employee's stress is caused by problems not related to his or her work?

An employer's duty of care does not extend to preventing ill health caused by problems in employees' personal lives such as divorce, bereavement or money worries. Legally, because such a stress-related condition is not caused by the employer, an employee would not normally be able to bring a personal injury claim. However, it is possible that a failure to take such matters into account in dealing with poor performance and/or increased absence might render any dismissal unfair. It might also amount to a breach of the implied duty of trust and confidence and, if the breach was sufficiently serious, the employee might resign and claim unfair constructive dismissal.

If an employee is known to be having problems outside work, this must be taken into account when carrying out risk assessments because it could make him or her more vulnerable in the workplace.

How should employees who just cannot handle the pressure be treated?

If an employer has identified that a worker is at risk from, or is suffering from, stress due to the type or amount of work that he or she is doing, it is under a duty to take reasonable measures to alleviate the problem. If those reasonable measures do not solve the problem, it is at this stage that disciplinary or poor performance procedures can be begun.

However, where a stress-related illness amounts to a disability under the Disability Discrimination Act 1995 (see Stress at work: The legal claims that can result), or the stress is caused by unlawful discrimination or harassment, the employer must take steps to make reasonable adjustments to the employee's workplace or prevent the discrimination as appropriate.

Are there any data protection and privacy issues that must be taken into account?

Stress is often the stated cause of absence on medical forms. Where the level of absence becomes a problem, it will often be important to find out what the actual medical condition behind it is. It may be that the condition amounts to a disability. If so, the employer will be under an obligation not to dismiss the employee or subject him or her to a detriment for a reason related to the disability, and this will affect the way any disciplinary procedure should be handled.

There are potential data protection issues in relation to processing information about the behaviour and, more importantly, the medical condition of employees who may be suffering from stress. It is therefore important that employers address these issues with the employee as early as possible so that an examination or consideration of medical evidence can be undertaken with the individual's explicit consent.

It is also very important for the employer to respect the employee's confidentiality, and to tell him or her in advance how the information that it collects will be used and stored. The employee should be involved as much as possible in any subsequent decision-making process.

How should an employee who goes off sick with ‛stress' during a disciplinary process be handled?

It is quite common for employees to take stress-related sick leave when disciplinary or poor performance action is threatened or begun. Such claims are often treated with scepticism by employers, but it is important for them to understand that any disciplinary procedure involves a level of stress and to take appropriate steps to minimise it.

As regards the disciplinary matter itself, the employer should make sure that the employee knows exactly what the allegations against him or her are, how the allegations will be supported and what will happen at each stage of the process. It should inform the employee that he or she can be accompanied by a colleague at the hearings, offer extra time for the employee to consider the allegations and offer to have the disciplinary meetings on neutral ground, if appropriate. While it is important that the employer does not make any genuine stress and anxiety worse by pressurising the employee, it is also important for it to make it clear that the disciplinary matter needs to be addressed as soon as it is practical to do so.

As regards the stress-related absence, this will need to be addressed at the same time, but as a discrete issue in the same way as it would be for an employee not facing disciplinary action. If the cause of the stress is the disciplinary action, where the employer takes the gentle approach suggested above this will help convince a tribunal that any subsequent dismissal was fair. If there is another cause for the stress, this may well be related to the disciplinary/performance problems and should be addressed first.

If there are reasonable grounds for the employer's thinking that an employee's absence is simply a way of avoiding disciplinary action and that there is no genuine illness, the employer may wish to exercise any right that its sickness policy gives it not to pay the employee during the absence. This is often effective in getting a malingering employee back to work but is harsh, and can cause legal problems if the illness turns out to be genuine.

Next week's article will give practical guidance on what can be done to prevent, spot and deal with workplace stress.

Vince Toman is a member of the employment team at Lewis Silkin (Vince,Toman@lewissilkin.com)

Further information on Lewis Silkin can be accessed at www.lewissilkin.com