Work-related stress: frequently asked questions

Elizabeth Stevens of Steeles (Law) LLP concludes a series of articles on work-related stress with some frequently asked questions that look at employers' obligations in relation to work-related stress. By identifying and addressing signs of stress at the earliest opportunity, and employing stress management measures, employers can help to reduce liability for work-related stress. 

How can employers tell if employees are suffering from stress?

Stress can be hard to spot in some individuals, and the symptoms vary widely from one person to another. Many employees feel under pressure from time to time in the normal course of their duties, and some jobs are inherently more stressful than others. The point at which normal pressure becomes stress can be difficult to identify. The Health and Safety Executive (HSE) lists (on the HSE website) symptoms that may be a sign of stress. For example an employee may:

  • display negative and depressive emotions;
  • have increased emotional reactions (for example he or she may be more tearful, sensitive or aggressive);
  • lose motivation, commitment and confidence;
  • have mood swings;
  • lack concentration;
  • be indecisive;
  • have poor memory;
  • change eating or sleeping habits;
  • smoke more and/or increase consumption of alcohol and/or drugs;
  • display nervous or "twitchy" behaviour; or
  • show changes in attendance, for example by arriving late or taking more time off work.

Employers need to be aware of changes in employees' behaviour that amount to more than just a one-off incident, and act on those changes promptly. Employees who are affected should seek advice from their GP, who should be able to make a proper diagnosis.

What are employers' obligations in relation to stress under health and safety legislation?

The Health and Safety at Work etc Act 1974 imposes a general duty on employers to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees. This duty encompasses mental as well as physical wellbeing and includes a duty to minimise the impact of stress on employees.

Under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), employers are required to carry out workplace health and safety risk assessments to identify any measures that they need to take to comply with their legal obligations. The HSE expects risk assessments to include an assessment for stress, and has devised a set of management standards (on the HSE website), with statements of good management practice in relation to stress. The management standards are not compulsory but are intended to assist employers in complying with their health and safety obligations.

If an employer breaches health and safety legislation, it, or an individual within the organisation, could be subject to a criminal conviction. The HSE has enforcement powers but there is no direct right under health and safety legislation for an employee to take action against his or her employer.

What potential liabilities could an employer face if one of its employees suffers from stress?

An employee who is suffering, or who has suffered, from stress could bring a range of potential claims against his or her employer, depending on what caused the stress and what its impact has been on him or her. Employers' potential liabilities in relation to stress include claims for:

  • negligence (ie for personal injury), where an employee has suffered psychiatric injury as a result of stress and can demonstrate that the injury was reasonably foreseeable and that it resulted from a breach of the common law duty of care owed to the employee;
  • unfair dismissal, including constructive unfair dismissal, if the employer has fundamentally breached the implied term of trust and confidence;
  • disability discrimination, if the stress causes or contributes to a condition that comes within the statutory definition of a "disability";
  • other types of discrimination, if the stress results from harassment on one of the prohibited grounds;
  • workplace bullying under the Protection from Harassment Act 1997; and
  • breach of the working time provisions, for example where the employer has failed to allow an employee to take breaks or annual leave in accordance with the Working Time Regulations 1998 (SI 1998/1833), or where it has subjected an employee to a detriment or dismissed him or her for refusing to work more than 48 hours per week).

Employees often bring claims under more than one of the potential areas of liability, depending on whether they bring their claim at an employment tribunal or in the civil courts.

What can employers do to reduce the risk of liability?

It is important for an employer to take action immediately once it becomes aware, or suspects, that stress has become an issue for an employee. Taking steps at an early stage to alleviate the effects of stress helps to avoid potential liability later.

The employer should meet the employee to try to establish what is causing the stress, and to discuss what action it can take to reduce the impact of stress on him or her. The employer should consider whether or not:

  • additional support is available;
  • some of the employee's duties could be carried out by someone else;
  • there are any external factors that are having an impact on the employee's work; and
  • a period of reduced hours or flexible working would help to reduce the employee's stress.

The employer should encourage the employee to seek medical advice, and if possible, refer him or her for an occupational health assessment and counselling.

Further, there are preventative measures that employers can take to reduce the risk of stress arising across the organisation as a whole. This includes introducing a stress policy or an employee wellbeing policy that sets out what steps the employer will take if an employee is suffering from stress and what support is available. In addition, employers should carry out a risk assessment for stress, in accordance with the HSE management standards (see above). Employers should provide training to managers and employees on recognising the symptoms of stress, how to prevent it from becoming a problem and how to deal with it when it occurs.

Is stress a disability under the Disability Discrimination Act 1995?

Stress itself does not amount to a disability under the Disability Discrimination Act 1995, but a stress-related condition or a pre-existing condition exacerbated by stress could amount to a disability, provided that it meets the statutory requirement of having a long-term and substantial adverse effect on the employee's ability to carry out day-to-day activities. Depression is a common example of a stress-related condition.

What must an employer do if an employee's stress-related condition amounts to a disability?

Employers must not discriminate against employees on the ground of their disability (ie direct discrimination) or for a reason related to disability. Employees are also protected from harassment and victimisation because they have brought a claim or have made a complaint of disability discrimination.

Employers have a duty to make reasonable adjustments where any arrangements they have made place a disabled person at a substantial disadvantage when compared with non-disabled employees. It can be hard to identify adjustments for a stress-related condition, but relevant adjustments could include reducing hours or work, reallocating duties, offering additional support or supervision, implementing a phased return following absence and providing counselling.

The employer should discuss and agree adjustments with the employee and regularly review the situation to ensure that the adjustments are alleviating the effects of stress on the employee and to check whether or not anything else needs to be done.

What should an employer do if it suspects that an employee is using stress as a convenient excuse for absence or poor performance?

An employer that suspects that an employee is using stress as an excuse for absence or poor performance should not make assumptions or jump to conclusions without investigating the situation first. It should meet the employee to discuss why he or she might be suffering from stress and consider whether or not the explanation sounds plausible. It should follow up the meeting by carrying out further enquiries, for example to establish whether or not anyone else in the team is under undue pressure or suffering from stress, and if it would be reasonable for it to introduce temporary measures to see if they resolve the situation.

If the employee is frequently absent, apparently due to stress, it would be advisable for the employer to seek expert medical advice to determine whether or not the absence is genuine. It should carry out a return-to-work interview and, if it suspects that the employee is abusing the sickness absence policy, it might be appropriate for it to take disciplinary action against him or her.

Similarly, if the employee cites stress as a reason for poor performance, the employer should investigate to determine whether or not it is a genuine reason. If there have been changes to the employee's job or home life or a marked change in performance or behaviour that could have been caused by stress, this could indicate that stress is a genuine reason for the poor performance, in which case the employer will need to address the causes of stress (if they relate to work).

What should an employer do if an employee is on long-term sickness absence with depression resulting from work-related stress?

As with any long-term sickness absence, employers should maintain contact with employees who are on long-term absence for depression resulting from work-related stress and comply with their sickness absence procedure. Where appropriate, the employer should offer the employee support (for example by referring him or her to its counselling service where it has this facility).

If the employer is considering dismissing the employee, it should obtain a medical report to establish the reasons for the absence, the likely prognosis and what (if anything) can be done to facilitate the employee's return to work. If the employee's depression is work related, it may be appropriate for the employer to consider a longer period of paid sick leave than usual. It should discuss potential measures to alleviate the causes of stress with the employee, to encourage a return to work. The employer should consider all possible alternatives to dismissal, such as offering the employee alternative employment.

It has been established that it is possible to dismiss an employee fairly for ill-health capability, even in circumstances where a stress-related illness resulted from the conduct of the employer (McAdie v Royal Bank of Scotland plc [2007] IRLR 895 CA), particularly where the employee has made it clear that he or she would not consider returning to work under any circumstances and where there is no alternative to dismissal. However, the employer will normally be expected to "go the extra mile" before it considers dismissal in these circumstances, for example by making more effort to find alternative employment or tolerating a longer period of sickness absence than would normally be the case.

Next week's topic of the week article will be the first in a series on fit notes and will be published on 8 March.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.