Employment law is complex and forever changing. There are five important areas when considering the statutory provisions:
- Duty of Care
- Risk Assessment Responsibilities
- The HSE Management Standards
- Disability Discrimination
- Civil Litigation
Duty of Care
Employers have a common law duty enshrined within the Health and Safety at Work Act 1974 ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees’. Most employers act on this and do provide a safe, physically healthy working environment. What is often missed however is that this duty extends to employees’ mental health and wellbeing. This duty is not just about safeguarding physical health and safety.
Risk Assessment Responsibilities
Employers have to carry out risk assessments. They are obliged to do this under the Management of Health and Safety at Work Regulations 1999. These regulations don’t only prescribe the need to assess risk, but also tell employers to adopt preventive strategies. As with the duty of care, most employers are assessing risks posed by physical hazards, but many are not assessing risks to health and wellbeing posed by stress at work. This is despite the fact that the HSE have stated very clearly that stress should be treated in the same way as any other health hazard. In this respect line managers now have an important role in minimising the stress risk of those they manage.
The HSE Management Standards
HSE launched the Management Standards on 3rd November 2004. The Management Standards define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. They can also be described as a set of conditions that, if present, reflect a high level of health well-being and organisational performance.
The Standards cover six categories of work-related stress ‘hazards’:
Demands – this includes issues such as workload, work patterns and the work environment.
Control – how much say the person has in the way they do their work.
Support – this includes the encouragement, sponsorship and resources provided by the organisation, line management and colleagues.
Relationships – this includes promoting positive working to avoid conflict and dealing with unacceptable behaviour.
Role – whether people understand their role within the organisation and whether the organisation ensures that they do not have conflicting roles.
Change – how organisational change (large or small) is managed and communicated in the organisation.
Any discrimination may lead to stress, but disability discrimination legislation has particular relevance i.e. the Equality Act 2010. This act states that stress must be responded to as a disability where the condition has lasted for 12 months or more in that the employee should expect ‘reasonable adjustments’.
The word ‘reasonable’ is interpreted very broadly and this means that managers need to look carefully at all realistic options; from the way work is done or scheduled, how many hours the person works, even at potential redeployment to a less pressurised position. If you can’t show that you have made reasonable adjustments, your employer may be found to be discriminating against the stressed employee on grounds of their disability.
Most ‘stress’ cases are personal injury cases, where an employee who has been made ill by stress at work, and where strictly speaking they have sustained a psychiatric injury, makes a claim.
For an employee to succeed in such a claim they have to show four things. A good analogy would be from show jumping. The winner is the rider who achieves a clear round, that is they clear all the fences. In a stress case, the ‘fences’ are:
- A breach of the duty of care.
- A recognised ‘injury’ or illness.
- A causal link between stressors at work and the illness/injury.
- Reasonable foreseeability.
Three key lessons from the above:
- Managers must act once it becomes apparent that someone is ‘at risk’.
- That action should include appropriate support
- Although a stress-related illness may not be a disability, it makes sense to consider early on what adjustments you could make.
Please note that readers should not rely on these notes entirely for guidance but always consult their Human Resources specialists and/or employment lawyers who will be aware of the most recent changes.
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