Stress How Managers can Help

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Stress How Managers can Help
Eric Burt Health and Safety Officer
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Programme

• Legal definitions of stress
• HSE 7 Workplace stressors
• Legal responsibilities
• Criminal law
• Civil law
• Case law
• Stress management policy
• Stress risk assessment

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What is Stress?

• Write your own definition of stress..

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WHAT IS STRESS ?

• Stress is the reaction people have to
  excessive pressures or other types of demand
  placed upon them. It arises when they worry that
  they cant cope.

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Dolphins Stress Test The more differences you
can see between the two dolphins the more
stressed you are likely to be
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Stress - The Legal Perspective
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Legal Overview

• HEALTH AND SAFETY AT WORK ACT 1974
• It shall be the duty of every employer to ensure,
  so far as is reasonably practicable, the health,
  safety and welfare at work of all employees
• MANAGEMENT OF HEALTH AND SAFETY AT WORK
  REGULATIONS 1999
• Every employer shall make a suitable and
  sufficient assessment of the risks to the health
  and safety of his employees to which they are
  exposed whilst they are at work

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Legal Position Civil law
Walker v Northumberland County Council
(1995) Walker suffered a nervous breakdown due
to excessive job-related stress and went off
work. On return to work without any real change
of working conditions he had a second breakdown
from which he became permanently unfit for
work Employer was held liable (High Court) for
failing to take reasonable steps to protect his
health - 175 000 compensation.
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Civil Law Decisions
Hatton v Sutherland Barber v Somerset County
Council (Hatton Barber were teachers) Jones
v Sandwell Metropolitan Borough Council (Jones
was an admin. Assistant) Bishop v Baker
Refractories Ltd (Bishop was a factory
worker) On appeal the Hatton threshold test
was established.
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Stress - the legal perspective - civil law

• Generally, the employee has to show the
  following
• That he has suffered mental illness as opposed to
  mere emotional stress - a certain level of stress
  at work is normal and not actionable, but
  diagnosed mental illness caused by such stress
  may be actionable
• That such mental injury is wholly or partly
  caused by work-related stress and is not caused
  by external factors such as domestic/ family
  issues
• That the mental injury was foreseeable and could
  have been avoided if reasonable steps had been
  taken by the employer to alleviate the stress
  that caused or contributed to the injury
• That the employer failed to take such reasonable
  steps to alleviate the stress on the employee

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Stress - the legal perspective - civil law

• The threshold question is whether this kind of
  harm to this particular employee was reasonably
  foreseeable
• This has two components
• an injury to health (as distinct from
  occupational stress) which
• is attributable to stress at work (as distinct
  from other factors)

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Stress - the legal perspective - civil law

• The following is taken from the Court of Appeals
  judgement in the Hatton case
• Foreseeability depends upon what the employer
  knows (or ought reasonably to know) about the
  individual employee.
• Because of the nature of mental disorder, it is
  harder to foresee than physical injury, but may
  be easier to foresee in a known individual than
  in the population at large.
• An employer is usually entitled to assume that
  the employee can withstand the normal pressures
  of the job unless he knows of some particular
  problem or vulnerability.
• The test is the same whatever the employment
  there are no occupations which should be regarded
  as intrinsically dangerous to mental health

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Stress - the legal perspective - civil law

• Factors relevant in answering the threshold
  question
• The nature and extent of the work done by the
  employee.
• Is the workload much more than is normal for the
  particular job
• Is the work particularly intellectually or
  emotionally demanding for this employee
• Are demands being made of this employee
  unreasonable when compared with the demands made
  of others in the same or comparable jobs
• Are there signs that others doing this job are
  suffering harmful levels of stress
• Is there an abnormal level of sickness or
  absenteeism in the same job or the same department

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Stress - the legal perspective - civil law

• Signs from the employee of impending harm to
  health.
• Has he a particular problem or vulnerability?
• Has he already suffered from illness attributable
  to stress at work?
• Have there recently been frequent or prolonged
  absences which are uncharacteristic of him?
• Is there reason to think that these are
  attributable to stress at work, for example
  because of complaints or warnings from him or
  others

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Stress - the legal perspective - civil law

• The employer is generally entitled to take what
  he is told by his employee at face value, unless
  he has good reason to think to the contrary.
• He does not generally have to make searching
  enquiries of the employee or seek permission to
  make further enquiries of his medical advisers

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Stress - the legal perspective - civil law

• The employer is only in breach of duty if he has
  failed to take the steps which are reasonable in
  the circumstances, bearing in mind
• the magnitude of the risk of harm occurring,
• the gravity of the harm which may occur,
• the costs and practicability of preventing it,
  and
• the justifications for running the risk .
  remembering that the size and scope of the
  employers operation, its resources and the
  demands it faces are relevant in deciding what is
  reasonable. These include the interests of other
  employees and the need to treat them fairly, for
  example, in any redistribution of duties.

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Stress - the legal perspective - civil law

• An employer can only reasonably be expected to
  take steps which are likely to do some good the
  court is likely to need expert evidence on this.
• An employer who offers a confidential advice
  service, with referral to appropriate counselling
  or treatment services, is unlikely to be found in
  breach of duty.
• If the only reasonable and effective step would
  have been to dismiss or demote the employee, the
  employer will not be in breach of duty in
  allowing a willing employee to continue in the
  job.

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Stress - the legal perspective - civil law

• In all cases, therefore, it is necessary to
  identify the steps which the employer both could
  and should have taken before finding him in
  breach of his duty of care.
• The claimant must show that that breach of duty
  has caused or materially contributed to the harm
  suffered. It is not enough to show that
  occupational stress has caused the harm.

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The recent case of Pratley -v- Surrey County
Council revisits the Court of Appeal's decision
in Hatton -v- Sutherland, and emphasises the
difficulties that claimants are currently
experiencing in succeeding in occupational stress
claims. From 1994 the claimant was employed by
Surrey County Council as a Care Manager. She
brought a claim for a depressive illness suffered
owing to the stresses of this position. The
claimant did not convey the degree of pressure
she was experiencing to her employers following
sickness absence for stress-related headaches she
requested that her GP did not record these on her
sick note, nor did she register the full number
of hours that she was actually working.
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In a meeting in 1996 with her supervisor, the
claimant did voice concern about her heavy
workload, and in a second meeting a few months
later, a new system was suggested to address the
management of her heavy workload. She then went
on a three-week holiday following this second
meeting and upon her return, suffered a
psychiatric collapse when she found that the new
system which had been discussed had not yet been
implemented. At first instance the judge
dismissed the claim and held that the claimant's
breakdown upon her return to work could not have
been foreseeable and that the employers were not
at fault. The claimant challenged this decision
and the Court of Appeal referred to the case of
Hatton -v- Sutherland, and the guidelines it
established in occupational stress claims, when
making their ruling.
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They upheld the decision and ruled that the
claimant had not passed the Hatton "threshold
test" since it was not reasonably foreseeable
that she would suffer the immediate harm that she
did upon her return (although it was reasonably
foreseeable that she was at risk of suffering
psychiatric injury in the future). Further, it
was held that she failed on causation. This
decision emphasises the importance of the element
of reasonable foreseeability in damages claims
for psychiatric injury which arise from
occupational stress. It should help to dissuade
claimants from bringing such claims where the
harm that they have suffered is not reasonably
foreseeable.
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HSEs 7 Workplace stressors

• The culture of the workplace including
  communication, whether or not there is a blame
  culture and working excessive hours
• The demands of the job. Whether the work is
  boring or repetitive, the amount of training
  required and the amount of work.
• The amount of control the employee has over their
  work.
• Relationships at work can give rise to stress
  especially if relationships are poor or involve
  bullying and harassment.
• Change and fears about job security can lead to
  stress
• Confusion about the employees role and what
  their objectives are.
• Lack of support from managers can increase the
  employees stress levels, especially if the
  employee is trying to balance the demands of work
  with domestic pressures

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Stress risk assessment
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Step one Identify if there is a problem   In
order to identify factors which may cause stress
at work, managers may use any of the following
methods to determine if there is a
problem   Informal discussions between managers
and staff   Regular team meetings (such as
team-briefing sessions)   Staff appraisal and /
or supervision sessions   Return to work
interviews   Sickness absence records   Performanc
e measures e.g. an employee performing below
par   Exit interviews and staff turn-over rates
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Step two Identify who could be harmed and
how   No employee is immune from work-related
stress and no job is stress-free, however some
individuals may be more vulnerable at certain
times when they are facing other stressors which
may or may not be work-related
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Step three Evaluate the risk When evaluating
the level of risk, the following should be
determined     Whether there are already
preventive measures in place    Whether these
measures are enough to control the risk at
source    If the risk is too high, what more (if
anything) can be done to reduce the risk
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Step four - Record the findings Records of risk
assessments can either be on paper or stored
electronically. However, it must be remembered
that confidentiality of individual details is
respected
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Step five Review Risk assessments must be
reviewed when circumstances change or if there is
other evidence that the assessment is no longer
valid.    
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End of sessionAny questions ?