Stress: frequently asked questions

Harry Parker and Andrea Tithecott of Osborne Clarke conclude a series of articles on workplace stress by answering some frequently asked questions.

Why should employers be concerned about stress in the workplace?

Employers have a duty under health and safety legislation to manage the risks of workplace stress. The business risks of not doing so are significant. Not only can stress lead to long-term ill-health absence and poor performance, but there is also a risk of high-value compensation claims.

Can employees bring court claims for stress?

While employees may not be able to bring claims for stress itself, they can bring claims for the consequences of stress, such as physical and mental illness. Moreover, the underlying causes of stress, such as harassment, bullying or an excessive workload, may be actionable.

What type of stress-related claims can employees bring?

A common stress-related claim is for personal injury arising from a breach of the employer's duty of care. However, employers may also face claims for breach of contract, constructive unfair dismissal, discrimination and harassment. In addition, enforcement proceedings may be brought under health and safety legislation (which provides for criminal liability).

How should employers manage the risk of workplace stress?

Employers should undertake risk assessments for stress and act on assessment outcomes. Given the wide range of factors that affect stress at work, carrying out risk assessments for stress can be complicated. The Health and Safety Executive (HSE) has published Real Solutions, Real People, an information pack designed to help employers identify risks associated with work-related stress (see www.hse.gov.uk/stress/information.htm). The HSE has also developed stress management standards to help employers meet their legal obligations (see www.hse.gov.uk/stress/standards/).

What relevance do the Working Time Regulations 1998 have in relation to the management of workplace stress?

The Working Time Regulations 1998 are designed to help prevent workplace stress or fatigue by providing rights for workers to minimum daily and weekly rest periods. The original guidance from the Government on the Regulations stated that employers were not obliged to ensure that employees took their breaks. However, in Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland [2006] IRLR 888 ECJ the European Court of Justice held that this is in breach of the Working Time Directive and is not in the spirit of the legislation. The Government guidance has since been revised and now states that 'employers must make sure that workers can take their rest periods or breaks'. Employers would be well advised to implement arrangements that encourage workers to take their rest periods.

If employees do not raise concerns about their workloads and work pressures, can employers assume that they are able to cope?

Stress claims for personal injury often turn on whether or not an employee's stress-related injury or illness was reasonably foreseeable by the employer. Employers should be alert to signs of stress but, unless they know of some particular problem or vulnerability, are usually entitled to assume that employees can withstand the normal pressures of the job.

What questions should employers consider when assessing whether or not an employee is at risk of a stress-related injury or illness?

The employer's duty is to the individual employee. Accordingly, employers should consider whether or not a stress-related injury or illness is foreseeable with regard to that particular employee, not an employee of 'ordinary fortitude'. Case law suggests that there are no occupations that should be regarded as being intrinsically dangerous to an employee's mental health; it is not the job but the interaction between the individual employee and the job that causes harm.

Questions that are likely to be relevant in determining whether or not an individual employee is at risk of a stress-related injury or illness will relate to the nature and extent of his or her work. For example, is the workload more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are unreasonable demands being made of the employee when compared with the demands made of others in the same or comparable jobs? Are there signs that others in the same or comparable jobs are suffering harmful levels of stress? Is there an abnormal level of sickness or absence among others in the same or comparable jobs or in the same department? Does the employee have a particular problem or vulnerability? Has the employee already suffered from illness attributable to stress at work? Has the employee recently taken uncharacteristically frequent or prolonged absences? Has the employee or have others raised complaints or concerns about the employee's vulnerability to stress?

What steps should an employer take once it is on notice of a potential stress-related illness or vulnerability?

Once an employer is on notice that an employee is at risk of a stress-related injury or illness, it should take such steps as are reasonable in the circumstances, bearing in mind the level of risk, the costs and practicability of preventing the risk, the size and scope of the employer's operation, its resources and the interests of other employees in the workplace, as well as the justifications for running the risk. Employers should consider a range of options, such as redistributing the employee's work, transferring him or her to other work, granting him or her a sabbatical, giving the employee extra help temporarily, arranging treatment or counselling or providing a 'buddy' for the employee. However, employers are not required to take such steps in every case. In particular, an employer would not be obliged to redistribute work when doing so would overload other employees. Moreover, an employer would not be expected to take steps that are unlikely to help. While offering confidential counselling services is likely to help employers when defending claims, it is unlikely by itself to absolve them of liability.

Where an employee's stress-related condition amounts to a disability, the employer should consider its obligations under the Disability Discrimination Act 1995 to make reasonable adjustments to prevent the employee from being disadvantaged. In this context, many of the steps outlined above will be relevant, as would the option of a phased return to work following a period of absence or a reduction in working hours.

If an employee returns to work following a period of stress-related absence, can the employer assume that he or she is fit for the job?

Similar principles to those described above apply where an employee has already been absent due to stress. The employer is on notice of the risks and should be extra vigilant. However, in appropriate circumstances, employers can legitimately take an employee's reassurances about his or her health at face value. In Vahidi v Fairstead House School Trust Ltd [2005] EWCA Civ 765 the Court of Appeal held that there was no breach of duty where a school allowed a teacher to continue working following a depression-related absence, on the grounds that the school provided appropriate support and monitoring. The court found that, in the circumstances (which included a gradual phased return to work and a series of support meetings), it was reasonable for the school to accept Mrs Vahidi's representations about her well-being at face value.

What are an employer's options if it is clear that remedial measures are not working?

If the only effective way of safeguarding an employee's health is to demote or dismiss him or her an employer may not become liable for failing to do so, if the employee is willing to continue in his or her job. However, in such circumstances, the employer would normally be expected to have already implemented a range of measures to reduce the risks associated with the employee's continued employment.

The next topic of the week article will be the first in a series on religion and belief discrimination and will be published on 15 January.

Harry Parker is an associate in the employment departmentat Osborne Clarke (harry.parker@osborneclarke.com) and Andrea Tithecott is an associate in the health and safety department (andrea.tithecott@osborneclarke.com).

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.