Last month saw Depression Awareness Week which had the aim of raising awareness of mental conditions generally, including stress, anxiety, or depression.
The number of sick notes signing people off with stress is on the rise but what is stress? Aren’t we all subjected to a certain level of stress on a daily basis? And if so, is that not a good thing?
The first time that stress in the workplace was considered in detail and how it could be managed was at the Court of Appeal in 2002, in the well known case of Hatton v Sutherland.
The Court of Appeal undertook an extensive review of what stress was, looking at various studies and the court, in particular, said that on the one hand there are those who should “pull themselves together”, and, on the other hand, people who genuinely are exposed to unreasonable and dangerous workloads which can have a heavy impact on the even the most resilient person’s mental health.
One definition that has been given to stress is “the reaction that people have to excessive pressures or other types of demand placed upon them. It arises when they worry that they can’t cope”.
Much analysis has been done on the effect that pressure at work has on people.
It is acknowledged that some pressure is a good thing – it can keep you on your toes. However, when too much pressure is applied over an extended period, mental illness can be brought on or an existing condition can be considerably aggravated.
It is when employers go beyond what is reasonable that a claim for negligence can arise.
It goes without saying that employers owe their staff a duty of care – in particular, to provide a safe system of work.
Being over-demanding is a way that an employer can fall foul of this duty. However, to become liable in a court case, any harm done must be reasonably foreseeable. In other words, if the harm which is suffered could not have been foreseen, the liability will not arise.
Furthermore, there may be differing factors contributing to the illness or condition, such as a divorce or other external problem, which may not be the employer’s responsibility. In these cases, there can be a difficult apportion-ment of blame exercise to undertake.
The Hatton case was particularly interesting, in that the court set out some practice guidance so that people know when they should take action in relation to their staff, and when harm will become foreseeable.
The court said that the nature and type of work done by the employee is important. There may be some particularly emotionally draining jobs where thought should be given as to what is a safe level of exposure to a certain type of work and for what period.
Signs from staff themselves are also an important factor just to take into account. If somebody says they are coping, when clearly there are signs to suggest otherwise, then you cannot just turn a blind eye.
Are unusual periods of absence setting in, does the employee turn up late or take extended lunch breaks?
If there are enough factors present to make it plain that there is something wrong, then that is the point where the need to take action will be triggered.
Providing a confidential counselling service is seen as one important way of reducing exposure to stress claims and is seen as a helpful and useful tool when combating stress in the workplace.
This issue was considered recently in a case brought by Tracey Daw against Intel Incorporation (UK) Limited.
Ms Daw’s job involved integrating payroll and benefits of staff acquired by the company through various takeovers and buyouts.
However, over time, management structures changed and reporting lines became blurred.
She complained that she had to work excessive hours to get all of her work done, not least because of the fact that she had three people to report to who made demands of her, including regular one-to-one meetings and the preparation of monthly status reports.
To use her words, she felt she was being “pulled in different directions”.
In the end, she wrote a detailed memo, saying she could not go on like this. Her character was assessed by the court, and she was determined to be a hard-working and resilient character who would not give up easily.
Intel said that it provided a confidential counselling service and relied on that heavily to defend the claim but the court said that was not good enough.
There were clear signs that she was overstretched, and, despite making it plain this was the case, not enough was done. Consequently, Ms Daw succeeded in her claim of negligence against the company.
It is important to have the proper processes in place to make sure stress is managed in any workplace. Staff are paid to turn up and do their job but this has to be in the context of what is reasonable.
Encouraging an open door policy to management is to be encouraged. Knowing who is doing what, keeping regular reviews and workloads and employee behaviour is these days more important than ever.
Furthermore, if promises are made to staff as to how overbearing workloads will be dealt with, then it is important that these promises are kept.
Over recent years, employers have found themselves in hot water when they have put management strategies in place but have then ignored them, leaving the employee to go back to undertake negligently high workloads.
In these sorts of cases, whether counselling is offered or not, an expensive and high-profile battle is likely to ensue.
James Tait is an associate at Shakespeare Putsman LLP, Somerset House, Temple Street, Birmingham, B2 5DJ, Tel: 0121 631 5226 or email: firstname.lastname@example.org