Stress How Managers can Help Eric Burt Health and Safety Officer

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

What is Stress? Write your own definition of stress…….. Write your own definition of stress……..

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 can’t cope. Stress is the reaction people have to excessive pressures or other types of demand placed upon them. It arises when they worry that they can’t cope.

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

Stress - The Legal Perspective

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

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 - £ compensation.

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.

Stress - the legal perspective - civil law Generally, the employee has to show the following: 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 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 That the employer failed to take such reasonable steps to alleviate the stress on the employee

The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: This has two components 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) Stress - the legal perspective - civil law

The following is taken from the Court of Appeal’s 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 Stress - the legal perspective - civil law

Factors relevant in answering the threshold question : Factors relevant in answering the threshold question : The nature and extent of the work done by the employee. 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 workload much more than is normal for the particular job Is the work particularly intellectually or emotionally demanding for this employee 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 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 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 Is there an abnormal level of sickness or absenteeism in the same job or the same department Stress - the legal perspective - civil law

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

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. 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 He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers

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 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 employer’s 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. 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 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. 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. 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. 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. 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. 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. Stress - the legal perspective - civil law

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.

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.

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.

HSE’s 7 Workplace stressors The culture of the workplace including communication, whether or not there is a blame culture and working excessive hours 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 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. 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. 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 Change and fears about job security can lead to stress Confusion about the employee’s role and what their objectives are. Confusion about the employee’s role and what their objectives are. Lack of support from managers can increase the employee’s stress levels, especially if the employee is trying to balance the demands of work with domestic pressures Lack of support from managers can increase the employee’s stress levels, especially if the employee is trying to balance the demands of work with domestic pressures

Stress risk assessment

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 Performance measures e.g. an employee performing below par Exit interviews and staff turn-over rates

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

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

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

Step five – Review Risk assessments must be reviewed when circumstances change or if there is other evidence that the assessment is no longer valid.

End of session Any questions ?