Stress | Suggestion Schemes

It has been estimated that at any one time as many as 20% of the workforce of the average Organisation will be trying to cope with a personal problem likely to affect their performance. Of these nearly half could be experiencing a serious problem, such as divorce, death or serious illness of a close relative or friend, court case, and so on. All these eventualities as well as uncontrollable pressure of work, could lead to stress.

Definition

Stress could be defined as 'pressure which is uncontrollable by the sufferer'. The problems set out above and others, can cause stress which is detrimental to the output of the employee, and could affect the output of their colleagues. This can be compounded by unsympathetic attitudes of those in any position of authority who in trying to achieve output or targets, may feel their efforts are being negated, virtually deliberately by those suffering from stress. Unlike a broken leg, or a heavy cold, stress symptoms are far less obvious, and thus more difficult to discern and counter. Stress-related illnesses account for well over a third of certified absence in the UK and are likely to account for a substantial number of problem employees, who require counselling and help rather than sanctions.

Overworking

There can be little doubt that there is placed on many employees a continual and growing pressure to perform effectively. Indeed, surveys indicate that compared to 5 years ago when legislation was introduced to curtail the number of hours being worked a week, those numbers have increased in many areas. This is due to concerns over the lack of permanence of job security, increased pressure to perform and a lack of confidence in the future, etc. These pressures have in turn resulted in the growth of stress as an ongoing medical condition - and a source of actions against employers.

The Walker case pre-dated the Disability Discrimination Act. Since many cases of stress could last longer than 12 months, if they prevented the subject carrying out the normal acts of life unaided, they could now be covered by the Act. Compensation for discrimination is unlimited.

Basis of Claim

For an employee to claim damages for stress against his or her employer they need to prove culpability and to show:

1. that there had been a breach of the employer's common law duty to provide all employees with a safe working environment; AND

2. that medical evidence was available demonstrating that the condition was stress-related and that this was linked to the working environment; AND

3. that the employer was in some way negligent in that the condition was foreseeable and yet the employer did nothing about it (or that the condition was reported to the employer and the employer then did nothing about it).

The most common causes of stress are:

1. long working hours;

2. work overload;

3. job characteristics (e.g. dealing with the public);

4. lack of management support;

5. lengthy and/or wearying Travelling; and

6. bullying and harassment.

Most are to a greater or lesser extent the responsibility of the employer.

In seeking to provide a working environment conducive to safe productive work as well as to show a defence in the event of a claim related to stress, employers need to be proactive not reactive. Managers should watch for stressful characteristics (although these are not always obvious) and should act when such characteristics are noticed.

Research

A survey carried out by independent think tank, Demos, concluded:

1. 44% of the workforce return home exhausted.

2. 60% of men and 45% of women work on Saturday (usually or sometimes).

3. 28% of men work more than 48 hours each week (but 70% of those working more than 40 hours want to work less). In fact UK employees work longer than employees in any other EU country.

4. 25% of managers take work home each week.

5. 86% of women state they never have enough time to get things done.

6. 33% of men work a 6/7 day week.

7. The average lunch 'hour' lasts 30 minutes.

Of itself each factor may not have a harmfully stressful result - some people after all say they work best when under pressure. Those working long hours might find less working stress with shorter hours, but if wages are reduced in proportion (as would normally be expected) the 'economic stress' of trying to survive on a lower income might be greater than the previous 'working stress'. However, the overall picture suggests that people are needing to work longer and harder to generate the income they feel they need to exist within society, or because they feel insecure - or both. If it is perceived that employers can be sued for 'causing' stress or its results, this could result in an increased number of such claims - a trend which those that specialise in personal injury claims are now reporting. It would be prudent for employers to be prepared.

Curtailing the Claims

There was a swift growth in the number of such claims which was brought to an equally swift end when four of the cases went before the Court of Appeal in late 2001. The Court of Appeal promptly rejected three of the claims and only allowed the fourth with 'some degree of hesitation'. The Court in its judgement set out a number of points of guidance for the employers being pro-active to avoid stress claims of which the following three are possibly the most important:

1. Employers are entitled to take at face value what they are told by their employees and do not need to make searching enquiries. Presumably therefore, if the employer suspected an employee was under stress but the employee stated they were not, the employer would be able to accept that answer without further enquiry - although even then it might be advisable to take medical advice on the matter.

2. Employers are entitled to assume that an employee will be able to withstand the normal pressures of the job UNLESS they know of a particular problem. Again, it would be advisable to investigate further, with medical advice if appropriate, if there is any suspicion that the employee is under stress.

   Warning

   Note the House of Lords decision in the Barber case above.

3. Any employer who offers a confidential counselling service with access to treatment is unlikely to be held liable in the event of a stress claim. It would be advisable to source such a service and provide its name and address and a contact name/number in contract documentation or whenever an employee states they are under, or are perceived to be under, stress.

Employee Assistance Programmes (EAPs)

The Court's last point would be covered by the employer offering an EAP. There has been a considerable rise in the number of employers providing EAPs in recent years. Generally, these are confidential services provided to enable employees to source advice and counselling regarding problems often, but not exclusively, related to the work environment and relationships. Making arrangements so that any employee feeling stressed could contact such a service for advice should help an employer defend a subsequent claim. Some private medical cover insurers provide stress counselling services - as increasingly do employer liability insurers. Making free access to such facilities would seem to be a suitable means of protecting against potential stress claims, at least until new legislation is introduced.

An employer might also wish to use the checklist in CAPABILITY (p71).

Current Developments

The HSE has introduced a code to try to reduce stress at work. There are 6 tests and if an employer fails any, it will fail a stress assessment and could be held liable if there is a stress claim.

The tests:

1. At least 85% of employees must say that they:

   • can cope with job demands;

   • have an adequate say over how they do the work; and

   • get adequate support from colleagues and superiors.

2. At least 65% of employees must say that they:

   • are not subjected to unacceptable behaviour;

   • understand their role and responsibilities; and

   • are involved in organisational changes.

Recently the first 'improvement notice' was served by the HSE against an employer (a hospital) which it indicated that the employer must take remedial action within 3 months to protect its employees from work-based stress, or it will consider prosecution.

As this book was being printed the Health & Safety Commission launched a three month consultation campaign on stress at work asking for views of all involved, presumably in advance of recommending legislation, since some time ago the Commission called for an update of the Health & Safety at Work Act 1974 incorporating stress requirements.