Employment Law – A stress-free 2006?

This article, written for HR professionals, considers the steps employers can take to deal with workplace stress, focussing in particular on stress policies.

Why stress about stress?

For employers, taking steps to reduce employee stress ought to be a no-brainer. Stressed employees are less productive and more likely to find another job or to go off on long term sick leave, a situation that often ends with an unfair dismissal or disability discrimination claim. Recent legislation will make it easier for employees with stress to claim that their problems render them “disabled” in a legal sense by doing away with the requirement that a mental illness has to be “clinically well recognised” to amount to a disability (Disability Discrimination Act 2005).

If employees suffer from stress, in addition to bringing a conventional personal injury claims alleging negligence and/or breaches of health and safety at work legislation, they may now, if the stress supposedly stems from bullying and harassment at work, make a claim against their employers under the Protection from Harassment Act 1997 (in accordance with the 2005 case of Majrowski v Guy’s and St Thomas’s NHS Trust [2005] EWCA Civ 25).

Stress policies

For those of us who are sceptical about the ability of policies and procedures to deal with workplace stress, cynical self-interest is reason enough for having a stress policy. Having and implementing such a policy will normally provide a defence to a conventional personal injury stress claim (“stress claim”). It may also help in the defence of a disability discrimination claim where the disability in question is work-related stress.

There is a feeling amongst some that stress policies are counter-productive in that they make it more likely an employee will win a stress claim, but this seems to stem from a misconception that the employer can defend a stress claim by saying, “We had no idea the claimant was stressed.” An employer who has no reason to think its employees might be at risk of psychiatric injury because of work-related stress has a complete defence to stress claims. However, pure ignorance of the state of employees’ psychiatric health (“didn’t know” as opposed to “could not reasonably be expected to know”) provides no defence at all.

The risk of employees suffering from psychiatric injury as a result of stress at work has become, from a legal point of view, like any other health and safety risk: something that employers are expected to be aware of, to assess and to address. Masses of material on stress is produced by government agencies and employers’ organisations. The Health and Safety Executive, in particular, issues pages of guidance for employers (www.hse.gov.uk/stress), including an example of a stress policy. The example policy provided is a counsel of perfection, but suitably watered-down could be used as the basis of a stress policy by anyone.

Good news

Last year, the Court of Appeal gave an important judgment dealing with stress cases: Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6. The decision was good news for employers, in that the Court endorsed the guidance previously given in Hatton v Sutherland [2002] EWCA Civ 76 (also widely seen as a “pro-employer” case), including that “an employer is usually entitled to assume that the employee can withstand the normal pressures of the job” and that “an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty”.

In Hartman, the Court decided that an employer is not to be taken to know about anything that is said, in confidence, to a counsellor even if the counsellor is an Occupational Health employee. The Court also emphasised that in order to win a stress case, it isn’t enough for the employee to persuade a judge that the employer unreasonably failed to do something. The employee must in addition show that had the employer done that something, the employee’s health would have improved as a result.

… and the bad

There is a sting in Hartman’s tail, though, which is the Court of Appeal underlining the fact that the guidance it endorsed, particularly the statement referred to above that “an employer is usually entitled to assume that the employee can withstand the normal pressures of the job”, should not be taken as making stress claims any different from ordinary personal injury claims. The key question in all such claims is: was it reasonably foreseeable that the claimant might suffer [physical or psychiatric] injury? If it is reasonably foreseeable in any given case, the employer can’t escape liability by demonstrating that the foreseeable risk of injury arose just from the “normal pressures of the job” and that most or all other employees were similarly at risk.

Finally, Hartman makes clear that if an employer has a stress policy, it has to be properly followed through and implemented. For example, if the employer learns that an employee is off sick suffering from work-related stress, it is incumbent on the employer to discuss the options with the employee and not simply to leave matters with Occupational Health for them to deal with.

A stress policy, just like an equal opportunities policy, must be shown to be more than just a piece of paper before a court or tribunal will take it seriously. Some of the easiest and most effective cross-examination I’ve done on my occasional outings on behalf of employees has been taking the employer’s witnesses, line by line, through a policy or procedure set out in the staff handbook which the employer has breached wholesale. Notwithstanding everything already said in this article, it is almost always better to have no policy than to have one which is going to be ignored.

This article was first published on the Consult GEE Legal Human Resources website and is reproduced here with permission.