Kate Boguslawska of Saunders Law is an experienced commercial litigator advising business and individuals on contentious and non-contentious employment and other business litigation matters. She is known for providing robust, strategic advice, and here she examines the issue of stress at work.
Work-related stress is an adverse reaction suffered by people exposed to excessive pressures at work. The Labour Force Survey from the Office for National Statistics shows that it makes for over 40% of work related illnesses. On average people suffering from depression, anxiety or stress take about 24 days off work a year. That translates to 10.4 million working days lost in 2011/2012.
The survey further revealed that the occupations with highest rates of total cases of work-related stress were health professionals (with the highest prevalence amongst nurses), social workers and teaching and educational professionals. Earlier this year, the Sarz Report has brought well-known facts to light commenting that stress suffered by bankers reached almost unprecedented levels.
That is not good news for employers. Stress at work is a costly affair and hits businesses financially, but also has a negative influence on staff relationships, poor performance, staff turnover and leads to more management time being spent on resolving the issues arising from stress.
Historically, employees affected by stress had a choice of claims available in the Employment Tribunals. If the employment relationship was terminated as a result of the employee’s incapacity, the employee could bring a claim for unfair dismissal; if stress was prolonged, it could lead to depression, which in certain circumstances could be classified as disability under the Equality Act; employees who felt they were bullied or exposed to pressure often brought claims for harassment under the Protection from Harassment Act 1997.
Now, the choice is even wider and claims for ‘stress at work’ are becoming more prevalent in the Courts. Such cases are usually brought as personal injury negligence claims for breach of duty of care of the employee.
The Courts may sometimes be more attractive because of a longer limitation period. A claim in the Employment Tribunal, must be brought within 3 months, the limitation for personal injury claims is 3 years. Additionally the courts may, in certain circumstances, be more appealing venues because of the potential awards for psychiatric injuries, especially if as a result the employee is prevented from working for a long time or not able to ever return to their profession. These are often higher than the ‘injury to feelings awards’ awarded in the Employment Tribunal discrimination cases. This has been more recently observed amongst bankers who after years of working extremely long hours start suffering the consequences of prolonged stress. Finally the recent changes to cost rules have made the Courts an easier option for a personal injury case, especially with the introduction of a more favorable cost system for Claimants, where costs orders against them can be enforced only in very limited circumstances.
Until now, mental health issues were often stigmatised and the employees often suffered in secret giving different reasons for their absences. Growing social awareness and available assistance have made people aware that psychiatric illnesses can affect anybody at any stage of their lives. Employees are more likely to share their mental health issues with their employers, seek their help and also bring claims against them if they feel that the employers were responsible for their plight or failed to help them.
How can employers be responsible for their employees psychiatric injuries? The LFS provides an answer. It shows that work pressures such as extensive workload, too much responsibility, tight deadlines, lack of managerial support, work related violence and bullying are most frequently attributable to work-related stress.
Employers cannot always avoid these allegations but it is equally employees who have been reprimanded or disciplined that ‘hide’ behind the stress excuse. Therefore employers have to take steps to prevent such situations from occurring.
Prevention is always better than cure and ensuring that employers provide an environment safe free from bullying, in which work-related stress is effectively managed and controlled is of paramount importance. Not only does it increase productivity and improve relationships within the workforce, it helps avoid high pay-outs and years spent litigating.
Therefore to avoid or minimise the number of stress at work cases or reduce their negative impact on the business, employers have to:
Ensure that they have requisite health and safety policies in place. Make sure that they are tailored for their workplace. Having bog standard policies blindly followed by managers may lead to applying blanket policies, which can give rise to a discrimination claim.
Carry out risk assessments to identify factors associated with stress. How is the workload distributed? Have employees been properly trained? Are employees likely to be overloaded?
Learn to identify factors suggesting the existence of stress, such as high absenteeism levels, conflict within the workforce, disciplinary or grievance proceedings on the rise, low productivity, and high staff turnover. Redundancies are often culprits. They may be unavoidable but informing and consulting with employees, showing them a genuine effort to help, is often the key.
Monitor absences and carry out return to work interviews. If an employee complains of stress or anxiety, the employer should look into this to see whether circumstances can be improved. Employers should make a record of such interviews and if necessary request the employee’s consent to seek advice from his medical advisers or an Occupational Health professional. If any recommendations are made, they should be followed as far as they are practicable- (if a case is even brought) this can help show the Courts in subsequent litigation that the employer managed the situation fairly and successfully.
Employers need to appreciate that although invisible; stress issues are to be dealt with before they grow out of proportion.
‘Stress at work’ can be a minefield but may be effectively controlled. Businesses will benefit from advice on how to prepare and implement necessary procedures. Management should be trained to act with sensitivity and reasonableness and to balance the good of the individual and the requirements of the business. When this is achieved, employers will see more happy productive employees.
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