How to reduce the legal risks of stress in the workplace

Tue, 11 May 2010 | By Allison Grant, partner at Davies Arnold Cooper

The Health & Safety Executive identifies stress as the most dangerous risk to business in the early 21st century, with reports that one in five workers feel stressed at work. Three quarters of executives say that stress adversely affects their health, happiness and home life as well as their performance at work.

IOSH, the main regulator of health and safety in the UK, reported that for 2009 16.7% of people believe their jobs are extremely or very stressful.

The Stroke in Business Report 2008 reported that the recruitment sector was the most stressed environment in which to work in the UK, having found that 82% said they regularly felt stressed.

An increase in the number of stress related illnesses at work has inevitably seen significant developments in our laws.  The law imposes a duty on all employers to take steps to ensure employees do not suffer a stress-related illness as a result of their work. The overriding responsibility of employers is that of a duty of care.

An understanding and awareness of the basic legal principles is not ’rocket science’. The overall test is the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in light of what he knows or ought to know (Sutherland v Hatton [2002]).

The law on stress is developing primarily through decisions from our courts. It is clear that each case brought by an aggrieved worker will turn on its own facts and that the courts recognise the importance of dealing with employees in a reasonable way to prevent harm.

An employer is likely to be liable in negligence where it fails to take steps to reduce the workload of a stressed employee (Intel Corporation (UK) v Daw [2006]). In the Intel case, and whilst the employer offered short term counselling, this did not reduce the risk or reduce the workload and Intel was still found liable in negligence by the courts.

A reactive approach to stress management is risky and is often both ineffective and costly. The best advice for employers is to take a proactive stance to stress in the workplace. An effective stress management strategy has proven to reduce the cost of sick pay, replacement cover and recruitment, strengthen the employer’s position with regard to employers’ liability insurance, and reduce the likelihood of legal claims being made against them.

The following, whilst not exhaustive, covers ’key’ steps employers are recommended to take to reduce the growth of stress related illnesses at work:

1. Introduce a stress management policy, take action to ensure a policy is known to employees, train managers and staff on it and monitor the effectiveness of such a policy.

2. Introduce well being strategies on health promotion, with the focus on addressing stress at work, and in turn managing attendance, stress and performance management.

3. Identify the causes of stress and the level of risk to individuals and the organisation by carrying out risk assessments to highlight concerns and provide recommendations for action.

4. Take certified sickness absence due to stress or depression seriously and inquire about the employee’s problems and what can be done to ease them.

5. Monitor employees who could be at risk of suffering from work related stress.

6. Consider providing a confidential advice and counselling service.

7. Where instances of stress do arise, take action at an early stage.
 
Allison Grant, partner at Davies Arnold Cooper