Calming influence

The recession has left many employees worried about their job security or struggling to cope with increased workloads following redundancies. With this in mind, perhaps unsurprisingly, stress is now one of the biggest causes of employee sickness absence. The consequences of failing to manage stress effectively – such as losing key staff, high absence levels and poor morale – can be incredibly damaging to an employer's business. In addition, employee stress claims are on the increase, and the compensation for successful claims can be substantial. Understanding the key legal issues in relation to stress is one way in which employers can try to manage the risk of employee claims more effectively. Firstly, there is a health and safety requirement. Employers have a statutory duty to ensure, so far as reasonably practicable, the health, safety and welfare of their employees at work, which includes employees' psychological wellbeing. Employers are expected to follow the same standard of risk assessment in relation to possible stress issues as they would to physical risks and to promptly tackle any problems identified as a result. Although breach of this statutory duty will not generally give employees the right to bring a direct claim against their employer, enforcement action by the Health and Safety Executive can result in severe civil and criminal penalties, not to mention negative publicity. Another key issue is that of negligence. Employers also have a common law duty to take reasonable care in relation to the health and safety of their employees at work. Claims for breach of this duty can be brought directly by employees as personal injury claims for negligence; however, as stress is not a personal injury in itself, an employee must be able to show that they have suffered a stress-related injury, such as a nervous breakdown, in order to bring a claim. In most cases, the question of whether an employer has breached its duty of care and caused an employee's stress-related injury will be straightforward. However, the employee must also be able to show that the employer should reasonably have foreseen that injury would occur. To answer this question, the courts will consider whether the employer was, or should have been, on notice that the employee was at risk of a stress-related illness. There are several possible warning signs which could put an employer on notice that an employee is at risk of stress-related illness:

• where an employee has a history of stress-related illness, or has recently been absent from work with stress;
• where an employee is working excessive hours or has an excessive workload;
• where an employee has been given inadequate training for their role;
• where an employee has made a complaint about their working conditions or has been subjected to bullying or harassment. In the absence of any possible warning signs, employers are entitled to assume that an employee is able to cope with the 'normal pressures' of their job, and are not expected to foresee issues, for example, where an employee deliberately conceals signs of stress. However, once an employer identifies that an employee is at risk of stress-related injury, it will need to consider what action, if any, is appropriate. What is reasonable in the circumstances will depend on each case, so employers should always take specific medical advice to ensure that they are acting in accordance with the needs of the individual employee. Employers should also have one eye on whether an employee might also be protected under disability discrimination legislation – if so, there is an additional duty to consider whether there are any reasonable adjustments that can be made to assist the employee in connection with their disability. Finally, there is an implied duty in all contracts of employment that an employer will take reasonable steps to ensure the safety of its employees at work and to act in accordance with the mutual duty of trust and confidence. This will include an obligation to take reasonable care not to cause psychiatric harm to an employee by reason of the type or volume of work imposed on them. Where an employer's behaviour in relation to stress issues is so unreasonable that it causes an employee to resign, the employee may be able to bring a claim for constructive unfair dismissal in an employment tribunal. In light of the risks set out above, having a formal 'stress policy' in place can help employers to demonstrate that they are proactive in tackling work-related stress issues. A policy should set out the employer's procedures in relation to monitoring and tackling the effects of stress at work, including, for example, risk assessments, training, methods for reporting and investigating stress matters, and sources of support to reduce causes of workplace stress. Jennifer Makin is a solicitor at law firm Pinsent Masons: www.pinsentmasons.com