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May 11, 2011

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SHE 11 – Strain spotting

Work pressures associated with the financial slump mean more of us are exposed to the risk of stress. Roddy Macleod reminds employers of their duties in this area.

Heightened job insecurity, fewer resources at one’s disposal, or extra pressures on account of a rise in sickness absence – it seems that the recession has led to more people becoming stressed at work, and an increase in claims of compensation for stress-related illness.

The law, however, does not recognise stress as an injury. Rather, it is a catch-all term, so if your civil claim is to be successful in the county courts, you have to establish a recognised psychiatric injury. That being said, it is possible to obtain compensation for injury to feelings through an employment-tribunal claim, or a claim under the Protection from Harassment Act 1997. As such, if an employer turns a blind eye to stress then they may well find themselves appearing before a local county court, or at an employment tribunal. Indeed, they could also be subject to an Improvement Notice from the HSE if they have not undertaken a suitable and sufficient risk assessment for work-related stress.

It is important, therefore, that an employer has in place a stress risk assessment, along with policies on bullying and harassment.

Employees need to be told what behaviours are considered to amount to harassment and what may happen to them by way of disciplinary action if they are found to have harassed a fellow employee. It is helpful if all staff are consulted when it comes to formulating bullying and harassment policies. Not only do you get more buy-in but it’s harder for employees to plead ignorance of the policies if a potential situation occurs.

Furthermore, the Protection from Harassment Act offers no clear definition of what amounts to harassment, so if employees help draw up a list of behaviours that constitute harassment they will have a better understanding of where the line is drawn.

Once the policies have been drawn up and are familiar to the employees you must ensure that they are followed. If one employee bullies or harasses another, you need to follow the disciplinary policies laid down. This can be time-consuming and will involve keeping detailed meeting notes. But if this is not done, the employer is left open to a successful claim.

The other main cause of absence due to stress, besides harassment, is overwork. While the figure of 48 hours per week is derived from the Working Time Directive, this is not a magic number. Successful compensation claims have been made by employees on part-time hours, while some employees working more than 48 hours have been unsuccessful in their claims.

It is always a good idea to keep records showing the hours worked by individual employees. Failing to do so leaves the issue open to lengthy argument. It is also sensible to hold regular meetings with employees. Even better is a documented appraisal system that gives both employer and employee a chance to raise such issues as excessive hours and/or complaints of harassment.

For an employee to succeed in the county court in a stress claim on the basis of overwork, they have to show that not only were they overworked but also that their employer knew, or ought to have known, that they were developing a psychiatric injury. It is important therefore to be alive to complaints about working affecting an employee’s health. This is especially true if the employee goes off sick and a sick/fit note is issued indicating that the absence was due to work-related stress.

Most successful stress claims arise out of a failure to properly manage an employee’s return to work. Where possible, medical advice should be obtained before the employee returns to work. If a phased return is recommended then that should be followed.  Too often an employee’s immediate boss ignores the set plan and piles on the work, causing the employee to go off sick again.
An employers’ liability (EL) insurance policy will cover a county-court compensation claim arising out of an overwork or an harassment issue. It is, however, a condition of cover that the employer informs its insurance company promptly of the claim.

In employment-tribunal claims, it’s usually the employer’s money at risk, but if part of the claim relates to injury then the employer should also inform its EL insurer as it may well be covered under the insurance policy.

The key is to regard psychiatric injuries in the same fashion as physical injuries. If you have your documentation in place and ensure your employees are educated on your policies, you will have the best chance of minimising costly absences from work, as well as avoiding expensive compensation claims.

Roddy Macleod is a partner at Weightmans LLP and will be speaking on this subject in more detail in the SHP Legal Arena at 14.45pm on Tuesday 17 May

What makes us susceptible to burnout?

In this episode  of the Safety & Health Podcast, ‘Burnout, stress and being human’, Heather Beach is joined by Stacy Thomson to discuss burnout, perfectionism and how to deal with burnout as an individual, as management and as an organisation.

We provide an insight on how to tackle burnout and why mental health is such a taboo subject, particularly in the workplace.


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