Workplace Stress - An Employer's Duties

The Chartered, Institute of Personnel Development (CIPD) has published its eighteenth annual survey, 'The Health and Well-Being at Work Report', which was carried out in in November 2017 in partnership with Simplyhealth. Whilst the survey continues to monitor absence management trends, policy and practice, as in past years, this year the focus has shifted from absence management to health and well-being at work.

The 2017 survey found that organisations that have in place a standalone well-being strategy, with senior managers and line managers who recognise the importance of and promote the well-being of workers, are more likely to report positive outcomes with regard to employee health.

Stress-related absence increased over the last year in nearly two-fifths of organisations, while even more report a rise in reported common mental health conditions, such as anxiety and depression. More organisations reported that mental ill health was among their most common causes of short- and long-term absence. One in five of those who responded reported that mental ill health is the number one cause of long-term absence in their organisation, while nearly three-fifths reported that it is among their top three causes of long-term absence.

The main causes of stress at work have changed very little over the last few years, with workload remaining the main cause of stress-related absence, particularly in larger organisations. Management style was the second main cause of stress, compared with the third main cause in 2016. Non-work factors such as family and relationships also remain one of the major causes of stress. In larger organisations, however, considerable organisational change/restructuring was likely to rank among the top three causes of workplace stress.

The number of organisations that reported seeing an increase in stress-related absence and mental health problems indicates that these continue to give cause for concern.

Work-related stress occurs when a worker reacts in an adverse way to excessive pressures or demands in the workplace. It can affect a person's mental and physical health. A distinction can be made, however, between abnormal pressure that is beyond the worker's ability to cope as distinct from normal pressures of work that an employer is entitled to expect people to handle without adverse effects.

Dealing with stress is a difficult issue for employers. In addition to specific duties under health and safety legislation, such as carrying out risk assessments/stress audits, they owe their employees a common law duty to take reasonable care to safeguard their health and safety, and this includes a duty to control stress levels at work. Employers are only in breach of their duty if they have failed to take reasonable steps in the circumstances to prevent the stress. It is foreseeable injury arising from an employer's breach of duty that gives rise to a liability, and foreseeability depends on what the employer knows (or ought reasonably to know) about an individual employee. However, taking positive steps to safeguard the well-being of workers, such as ensuring that the working environment is free from the sort of pressures that can have an adverse effect, makes good business sense as doing so is likely to have a beneficial impact on the productivity and efficiency of a business.

Larger employers should make sure that managers are trained to recognise the signs of stress and know how to respond, and that they conduct themselves in a way that minimises stress and promotes a happy working environment. Employers should be aware that they can be found vicariously liable for the actions of their employees in certain circumstances.

An employer who is actively managing potential causes of work-related stress and preventing day-to-day pressures from becoming excessive is unlikely to be found in breach of their duty. The legal duty to carry out assessments so that risks posed by work-related stress can be managed means that it is important to examine your workplace to spot the signs of existing work-related stress and to identify any potential sources of stress that could put employees at risk. These assessments should be kept under regular review. Do you, for example, monitor employees' working hours to make sure they have appropriate rest breaks? Do sickness absence figures or staff turnover rates reveal a problem with high stress levels that should be tackled? Do you have policies in place to identify and deal with any instances of bullying and harassment?

Employers have a legal duty to consult with duly elected safety representatives of employees on health and safety matters, or with employees themselves where there are no formally elected representatives, and there is no exemption from this requirement for 'small' employers. However, you might also consider carrying out periodic employee satisfaction surveys seeking views on workplace morale and attitudes to stress, and asking for suggestions on ways of combating any problems.

If you become aware that an employee is suffering from work-related stress, you are required to take reasonable steps to prevent it. It is often helpful to agree an action plan with the employee concerned. Case law suggests that an employer who offers a confidential advice service to employees suffering from stress, with referral to appropriate counselling or treatment services, is less likely to be found to have failed in their duty of care, provided reasonable steps are taken at the same time to alleviate the problem – for example by reducing that person's workload or making changes to the way they work.

Employers are reminded of their specific duty under the Equality Act 2010 to make reasonable adjustments to the work or workplace where an employee is disabled, the definition of which can include persons who are experiencing mental health problems caused by stress where their illness is having a substantial and adverse effect on their ability to carry out normal day-to-day activities, the effect is long-term and the condition is likely to recur.

The message to employers is clear: stress cannot be ignored. It is important to have in place a stress policy that is proactive in promoting the well-being of workers. If and when stress-related complaints are made, they must be treated seriously, investigated fully and appropriate action taken at once. Active intervention is required. Monitor the situation to see if the remedial action is working and continue to do so until the situation is resolved. Make any changes necessary to prevent a recurrence where possible.

The Health and Safety Executive has comprehensive guidance on work-related stress.

Contact us for individual advice on any of the issues raised in this article.
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MattChalfont-Griffin
Solicitor Director
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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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