Stress management - Reducing the strain
Stress in the workplace is one of the main causes of absenteeism and damage claims against employers are spiralling. But according to Emma Grace, a new Appeal Court ruling may ease the burden of blame.
Stress in the workplace is one of the main causes of absenteeism and damage claims against employers are spiralling. But according to Emma Grace, a new Appeal Court ruling may ease the burden of blame.
Cost-cutting, downsizing, outsourcing, restructuring, closures and fears of job safety have made workplaces ever-more stressful, with employees feeling under pressure to work harder than ever before.
But even the hint of an employee suffering the effects of stress in the workplace has managers running for the employment law handbook and the procedures manual.
Until recently the onus has been on the employer to prevent stress in the workplace for fear of claims by employees of constructive dismissal, or worse, personal injury, with its potentially unlimited damage awards.
A ruling by the Court of Appeal is set to change that and increase the responsibility of employees. But that doesn’t let employers off the hook.
Stress in the new millennium is to the work-place what back pain was in the 90s. It is now one of two main causes of absenteeism, accounting for 6.5 million days, at a cost of £1.2bn. It is ironic that the average employee takes the equivalent of a third of their annual leave entitlement in sickness absence.
Meanwhile, the employer has borne the strain. Trades Union Congress figures show a twelve-fold increase in claims involving stress being made against employers between 2000 and 2001, rising from 516 cases to 6,428.
In reality, stress claims are harder to bring than the high profile cases would suggest, and this is set to become even harder with the recent decision by the Court of Appeal.
Legally, the employer is liable for stress in the workplace in three ways: if an employee…
To ignore the complaints could be considered constructive dismissal on the basis of a breach of mutual trust and confidence.
But new guidelines by the Court of Appeal will improve the position for employers, shifting the onus for personal injury stress claims on the employee and reducing the likelihood of action against the employer.
The basic premise is that an employer is entitled to assume an employee can withstand the normal pressures of the job unless they are made aware of some vulnerability or problem.
The new guidelines put in place criteria for a claim against an employer to be considered valid, the most important of which are:
The Court of Appeal guidance has brought some important concessions to the employer making dealing with the ‘stressed’ employee much easier.
But the guidelines do not let the employer off the hook.
There are five key actions an employer can take to reduce the risk of court action:
If the only reasonable and effective step would be to dismiss or demote the employee, an employer is not in breach of its duty if it allows a willing employee to continue working. Where no useful steps are to be taken, no duty arises.
An employer must bear in mind that if an employee develops a psychiatric injury they are likely to be disabled and the employer must consider how the employee is treated, regardless of whether they are liable. Dismissal or failure to make reasonable adjustments could result in a disability discrimination claim.
This ruling appears to squarely distribute responsibility and is in line with the changes to be made under the Employment Bill, where employees will be penalised for bringing claims without first using internal procedures.
Together, they will encourage employees and employers to put into place effective internal procedures to reduce the spiralling number of court or tribunal claims.