Stress at Work Presentation
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Transcript Stress at Work Presentation
Thursday 17 March 2011
Oliver McCann
Employment Partner
Taylors Solicitors
Stress at Work –
the Legal Slant!
1. Statistics
13.5 million
31 days
£3.7 billion (society)
38% - work cause of stress (51% money)
35% employers say stress cause for absence
(2010)
Bullying and harassment
2. What is Stress?
ACAS/HSE: “An adverse reaction to excessive
pressure or demands”
Oxford dictionary: “a state of mental or emotional
strain or tension resulting from adverse or
demanding circumstances”
Stress is not in fact an illness, but can trigger
other illnesses, eg. heart disease, anxiety,
depression, etc
3. Effects on the Business
Poor productivity/performance
Increased absence levels
Increased turnover
Temporary cover/overtime for others – increased
costs
Demotivation for others
Litigation
4. Stress is a Legal Health &
Safety Issue
HSWA 1974
Management of Health and Safety at Work
Regulations 1999
Risk assessments for health hazards including
stress
Take action to control identified risks
Management standards – key factors considered
essential to reduce the causes of stress [cont…]
5. Stress is a Legal Health &
Safety Issue [cont …]
HSE prosecutions
Implied contractual terms to provide safe system of
work/workplace (Johnstone v. Bloomsbury Health
Authority 1991)
Implied duty to provide reasonable support (Wigan
BC v. Davies 1979)
Common law duty of care not to cause psychiatric
harm (Walker v. Northumberland County Council)
6. Stressors – Management
Standards
Demands – workload, work pattern and work environment
Control – how much influence a person has on the way they work
Support – encouragement, research and guidance/development
provided by organisation and line management
Roles – clearly defined for both individual and organisation
Relationships – managing within the workplace, reducing conflict,
promoting positive working
Changes – management and communication
“A benchmark for claims?”
7. What are the Potential
Legal Claims?
Stress at work – PI claim – negligence and breach of
statutory duty
Breach of contract
Constructive dismissal
Unfair dismissal, if dismissed on grounds of capability
Discrimination claims (harassment) – Equality Act 2010
Protection from Harassment Act 1997
Disability discrimination (keeping at work)
8. Discrimination
Harassment – “unwanted conduct related to a protected
characteristic” (s26 EA 2010)
Violates dignity, creates an intimidating, hostile, degrading,
humiliating or offensive environment
Is it reasonable to conclude that conduct has had the effect
of creating an environment as above? Perception of victim
is relevant! (s26(4))
Vicariously liable but statutory defence (s109 EA 2010)
Unlimited compensation – injury to feelings and PI where
psychiatric injury
9. Constructive Unfair
Dismissal
Burden on employee to prove a fundamental
breach
Must resign in response
Implied terms – safe system of work and
reasonable support, trust and confidence
Compensation limit £68,400 – basic award £12,000
12 months continuous service unless exceptions to
rule
10. PI Claims – Employers
Liability
Duty arises to take steps to prevent stress where
signs (foreseeable) that an employee may suffer
psychiatric illness from stressors at work are plain
enough that any reasonable employer would
realise it should act (Barber v. Somerset CC 2004
HL)
16 guidelines (Sutherland v. Hatton 2002 CA)
[cont …]
11. PI Claims – Employers
Liability [cont …]
Foreseeable – absence levels, sick notes,
workload, nature of job, extent of work, level of
support (under-staffing)
Recognised medical condition
No onus on employee to complain – duty on
employer!
12. Steps to Take to
Discharge Liability
Counselling service (Guideline 11 Hatton) but
Daw v. Intel Corporation UK 2007 CA
Redistribution of work
Sabbatical
Transfer to other department
Reduced working hours
Extra support
13. Breach of Contract
Manner of dismissal does not sound in damages –
Johnson v. Unisys Ltd 2003
However, where guilty of an antecedent breach of
contract (including breach of trust and confidence
and other implied terms) before dismissal, then
claim can be made for psychiatric damage suffered
(Gogay v. Hertfordshire CC 2000)
14. Protection from
Harassment
1997 Act – s1: “A person must not pursue a course of
conduct which amounts to (and they ought to know
amounts to) harassment of another”
Cause of conduct – at least two occasions
Majrowski v. Guys & St Thomas NHS Trust 2006 HL –
vicarious liability for actions of its employees where close
connection between harasser’s conduct and nature of his
duties
Green v. DB Group Services - £852,000 liability under Act
[cont …]
15. Protection from
Harassment [cont …]
No definition but included under Act – wide
interpretation (unjustified bills and threatening
letters – Ferguson v. British Gas 2009)
Veakins v. Kier Islington Ltd 2009 CA – singling out
employee without reason and making her life
difficult until she had a breakdown
Only bring a civil claim if conduct would result in
criminal liability under the Act (Conn v. Sunderland
CC 2007)
16. Benefits of Tackling
Stress
Reduced exposure to claims
Quality of working life
Improved image/reputation – future recruits,
customers, tenders
Easier management of future change
Better employee relations and commitment
Reduced staff turnover
Reduced absence
17. How can Stress be
Managed in the Workplace?
Effective inductions, job descriptions (purpose, key tasks,
scope)
Effective communication channels and employee engagement
– appraisals/return to work interviews/work plans/team
meetings/committees/works councils/consultation
Job design – keep under review/manage changes
Support – identify training needs, supervision – ongoing
dialogue
Recruit properly – avoid mismatches, competency!
Stress surveys – annual? [cont …]
18. How can Stress be
Managed in the Workplace
[cont ...]
Flexible working – see benefits
Training line managers to identify stressors and signs of stress
Counselling services (Employee Assist Programmes) and health
checks
Clear policies and procedures and implementation –
grievances, discipline, unacceptable behaviour, stress policy
(consultation with staff/TUs)
Creating a healthy and friendly working environment
Monitor rest breaks/holidays
19. Flexible Working –
Work/Life Balance!
Maximises available labour
Increases productivity
Reduces absenteeism/stress
Increases loyalty and commitment
Increases flexibility to meet change
Improves access to those from under-represented
groups with skills
20. Managing Absence
Caused by Stress
Absence due to stress/anxiety/depression –
needs sensitive care and handling
Maintain regular contact throughout
Where caused by work – go the extra mile (Royal
Bank v. McAdie 2008)
Sick pay? (O’Hanlon v. HMRC 2007)
Timing of long term absence procedure [cont …]
21. Managing Absence
Caused by Stress [cont …]
Timing of health assessments
Quality of health advice – OH or GP?
Consultation with ill employee
Return to work interviews – critical
Alternative employment/phased returns –
adjustments!
Be mindful of disability issues!
22. Disability
Equality Act 2010
Definition – few changes to old definition
Physical or mental impairment, substantial and
long term effect on ability to carry out day to day
activities
Dropped requirement that must affect one or more
specified capacities
Long term – 12 months or likely to be 12 months
Recurring/fluctuating – continuing – less obvious
23. Disability Discrimination
Direct
Indirect
Discrimination arising from a disability
Reasonable adjustments
Objective justification
Taylors Solicitors
Employment Team
Oliver McCann – Elaine Hurn
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: 0844 8000 263
www.taylors.com