Legal Overview
Stress at Work
Many employers are now increasingly aware of the costs and risks associated with workplace stress. Employers now face the threat of legal action on two fronts - from the HSE and from their own employees.
In 2004 the Health & Safety Executive (HSE) published the Stress Management Standards. The standards identify and define workplace stress, set out employers' responsibilities and suggest solutions and best practice policies.
A NHS Trust was the first large UK employer to face legal enforcement action from the HSE over workplace stress. The Trust was given 6 months to improve its stress management policies, or face unlimited fines under the Health & Safety at Work Act.
The threat of litigation from employees who claim they have not received sufficient support from their employer is also a steadily increasing risk.
A poll of more than 5,000 trade union safety representatives published in 2005 revealed that stress was the biggest single health and safety concern in almost 58% of organisations, well ahead of back pain and repetitive strain injury.
In addition to the legal risks facing employers, there is the human and financial cost of workplace stress, as measured in absenteeism and lost productivity. A recent Health and Safety Executive survey in found that one in five respondents were very or extremely stressed at work and over half a million individuals in Britain believed that they were experiencing work-related stress at a level that was making them ill.
Self-reported work-related stress, depression or anxiety accounted for an estimated 12.8 million lost working days, making this the largest contributor to overall days lost from work-related ill health.
Legal Guidelines
Employers with bad employment practices, who fail to uphold their duty of care to their employees will always, and justifiably, remain vulnerable to being sued. However, the majority of firms - who genuinely strive to be good employers - are also frequently caught up in stress related legal actions. Long hours, tight deadlines and heavy workloads can all cause workplace stress.
Even organisations that are proud of having a good relationship with staff may suffer from external factors that will inevitably increase the risk of being sued in the future.
Until 2002 the scales were tipped firmly in the employees' favour. Then in February 2002, in a landmark ruling made by Lady Justice Hale in the Court of Appeal, employers were for the first time offered some practical protection against being sued for workplace stress. In a detailed set of written advice to employers, the Court of Appeal said:
"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*."
In 2004 the House of Lords reviewed and updated the 2002 Court of Appeal guidance. The Law Lords upheld and reaffirmed the landmark 2002 advice and went one step further by advising that employers had an on-going duty to monitor and constantly update their overall stress management policies and procedures.
Changes to the Disability Discrimination Act 1995 (DDA) in December 2005 mean that mental illness no longer has to be a clinically well-recognised condition to be covered. So 'anxiety', 'stress' and 'depression' may be sufficient to qualify a person as disabled and therefore covered by the DDA.
These legal guidelines provide significant protection for employers who offer their staff a confidential counselling helpline.
*Extract from Court of Appeal new guidance, issued by Lady Justice Hale, 5th February 2002.
