Last December, even the Health and Safety Executive (HSE) suffered stress when it had to re-issue its leaflet Tackling Work-related Stress: Guide for Employees. Some trade unions, including Unison, had objected to its suggestion that employees should consider changing jobs if their job was stressful. The new leaflet makes clear that employees should discuss with their managers whether it is possible to alter the job to make it less so.
The executive also issued Work-related Stress: a Short Guide to coincide with National Stress Awareness Day in November. It describes the causes of stress, employers legal duties to employees and actions that small employers should take in order to prevent stress. In particular, the guide notes that companies should not be tempted to fire an employee as an easy way out, because of the risk of unfair dismissal and other claims.
But, despite this guidance, cases on stress continue to appear. Last October, a police officer who worked for a Child Protection team was awarded damages of 135,236 for a stress-related illness she sustained at work. In spring last year, the Scottish Court of Session accepted that a charge nurse at a prison had suffered both stress and depression following actions by his employer. In this case, the nurse had been disciplined and subsequently become ill.
In this particular case, the employer was not found liable. Although the court accepted that the disciplinary action contributed to the onset of the illness, it did not believe that the employer could reasonably have foreseen that the action would have caused the psychiatric illness from which the nurse suffered.
To some extent, this is helpful to employers. If the employer knows that an action may upset or anger an employee, it does not necessarily follow that this is the same as knowing that it will cause the employee to suffer psychiatric illness. The position may be different if the employer, for example, knew that the employee was suffering from symptoms of psychiatric illness before the action was taken.
Both of these cases involved claims for damages for personal injury in the civil courts. There are also various statutes to help stressed employees. The most familiar of these are unfair dismissal, which covers dismissal on the grounds of ill health, and constructive dismissal, where an employee resigns because of the employers conduct by, for example, not providing a stress-free working environment. Theres also dismissal for health-and-safety reasons, and discriminatory behaviour on the grounds of disability under the Disability Discrimination Act 1995.
Additional help may come from the Working Time Regulations 1998. These have established through case law that the right to work no more than 48 hours a week is an enforceable contractual right.
Employment tribunals have the power to award damages if the employer has breached the Sex Discrimination Act 1975, the Race Relations Act 1976 or the Disability Discrimination Act 1995. This decision was made in a case that involved a Somali Muslim who was employed as a second engineer on a boat. He alleged racial harassment, being made to work longer hours than his white colleagues, forced to eat non-Halal meat, and refused permission to go ashore to obtain medical treatment. On presentation of a medical certificate stating that he suffered from anxiety and stress, he was dismissed.
Most HR professionals faced with this issue will need to know how bad the problem is, what is causing it and what can be done about it. One approach is a stress audit, which is a good way of demonstrating compliance with an employers duty in law to consider stress and mental health generally when assessing possible health hazards in the workplace. Useful guidance is given in the HSEs leaflet, Successful Health and Safety Management. With more than half a million people suffering from work-related stress or from illness they believe to have resulted from such stress, a proactive response to the issue is essential.
janet.gaymer@haynet.com
Janet Gaymer is senior partner at Simmons & Simmons
