The past year has been challenging for people and communities as lockdown restrictions have impacted almost every area of our daily lives. Many employees have juggled home schooling, homeworking & caring responsibilities, bringing mental health and wellbeing to the forefront of our minds. Stress in the workplace isn’t uncommon, Stephen Kavanagh, Managing Director of Casualty Claims, Keith Donnelly, Casualty Technical Director & Gary Wilson, Senior Associate, discuss how prioritising employees’ wellbeing is essential for employers to protect colleagues from work related stress.

Health & Safety Executive (HSE) defines work-related stress, depression or anxiety as “a harmful reaction people have to undue pressures and demands placed on them at work.” We have reflected on the national scale of work related stress and shared our top tips on how employers can protect employees from stress & improve their wellbeing.

During 2019/20, 828,000 UK workers reported suffering from workplace stress, resulting in 17.9m lost working days, 55% of the total time lost due to ill-health. Despite these high figures, the number of claims relating to workplace stress make up a relatively small percentage of personal injury claims pursued against employers due to the high bar involved in establishing a breach of duty.

Employers owe their employees a common law duty of care, as well as responsibilities under statutes including (but not limited to) the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999. The Protection from Harassment Act 1997 is also relevant to bullying and harassment claims. The principle of vicarious liability, whereby an employer is liable for an employee’s negligence arising in the course of their employment, can also be relevant.

To succeed with a workplace stress claim, an employee must establish that they have suffered a recognised psychiatric injury, that it was foreseeable to the employer that any acts and/or omissions on their part could cause injury and that the injury is due to stress at work.

Hatton v Sutherland 2002 – a significant case that gave rise to the Court of Appeal purposefully providing 16 `practical propositions` regarding what steps employers could take to reduce the risk of workplace stress – The Hatton Guidelines.

In assessing foreseeability, relevant factors include:

• the nature of the job and type of work undertaken;
• whether the workload is high or excessive demands are placed on the employee;
• signs of others doing the same/similar work suffering from stress;
• whether the individual employee demonstrated signs of stress;
• whether the individual has a known psychiatric vulnerability (previous illness/absence);
• any prior complaints/concerns raised by the individual about stress/illness.

The Court of Appeal in Hatton made clear that indications of impending harm to health ought to be plain enough for any reasonable employer to realise it should act.  In that regard, an employer is only required to take reasonable steps. The size and scope of their operation, its resources and other demands placed upon it are factors in deciding what is reasonable.

Workplace stress & bullying – a practical example

The Claimant alleged that he suffered stress as a result of carrying out duties that he contended were outside the scope of his job description and that whilst he was absent from work, he was harassed and cyber bullied by HR personnel.

In respect of the claim for stress and in accordance with the Hatton Guidelines, the employer had prepared a stress policy together with preparing and maintaining risk assessments in relation to stress and kept detailed notes. They were therefore able to demonstrate that the contentions appeared to relate to an employment dispute in relation to the Claimant’s duties and the employers grievance procedures.

The Claimant objected to being asked to carry out a role, which he maintained was outside his job description, however his grievance and appeal found that the task was not outside his role and there was no change to his job description. The Claimant also admitted to feeling able to carry out the work. It was therefore refuted that the duties were beyond his capabilities and his allegations were without merit.

Whilst the Claimant referred to issues in 2015 and had two periods of absence for stress during his employment, which he attributed to being asked to carry out the disputed task and whilst arguably the employers were on notice, the duties requested of him were not unreasonable or outside the scope of his employment, and therefore the test of foreseeability was not met.

With regards to the alleged harassment, employers prepared a bullying and harassment policy.  When considered,  there was no evidence of any harassment or cyber bullying whilst the Claimant was absent from work. Instead, the document demonstrated that the employers were making appropriate attempts to accommodate the Claimant’s return to work and staff had not acted negligently and did not amount to harassment or bullying. It shows that in all cases, providing evidence is crucial.

Top tips on how to protect employees

1. Prepare and maintain a stress policy, commit to standards to identify and control workplace stressors. HSE template can be found here.
2. Prepare and maintain a bullying and harassment policy to educate employees regarding acceptable, and unacceptable conduct, with a clear procedure to follow where any employee perceives they are a victim.
3. Prepare and maintain risk assessments that address the risk of stress – this may be specific to the subject, or one hazard associated within a task.
4. Educate people managers to identify stress and stressors and ensure they are acted upon to demonstrate a proportionate and reasonable response.
5. Educate employees to be aware of the risk of workplace stress, how to identify it and report it confidently via a clear procedure.
6. Include health questionnaires in employee recruitment and induction documentation.
7. Keep evidence (notes or records), make sure all meetings have minutes and witnesses and retain statements.
8. Offer and maintain a confidential advice service, with referral to counselling or treatment services if required.
9. Instruct an occupational health assessment and conduct a detailed return to work assessment.
10. Avoid repeat absences or accusations of a failure to act – it’s vital that agreed steps to prevent a recurrence are monitored and acted upon.

For more information on how employers can protect the wellbeing of employees, please contact Managing Director of Casualty Claims – Stephen Kavanagh at Stephen.Kavanagh@davies-group.com, UK Casualty Technical Director – Keith Donnelly at Keith.Donnelly@davies-group.com or Senior Associate – Gary Wilson at Gary.Wilson@davies-group.com.