11. Stress, bullying and violence

Changes and developments since last year

The extent of the problem — survey evidence

There have been many surveys over the past twelve months showing a marked increase in stress levels and incidents of bullying across the British workforce. Here are just a few examples:

• In October 2011, a joint survey by the Chartered Institute of Personnel and Development and health firm Simply Health identified stress as the biggest cause of long-term sickness absence in the UK. Nearly four in 10 employers reported an increase in the level of stress-related absence.

• Updated evidence by mental health charity MIND collected in the same month confirms that workers fear that admitting to stress will place them at risk of redundancy.

• In a 2011 survey by health workers union UNISON of more than 6,000 staff across the UK, six out of 10 workers reported being bullied or witnessing bullying over the preceding six months. Around half of those questioned reported preferring to keep quiet about bullying behaviour because of fear for their jobs.

• In a survey of 3,000 teachers by the NASUWT published in April 2012, more than three-quarters of teachers (87%) reported experiencing or witnessing bullying in the previous twelve months, with one in five victims quitting their job as a result. Problems are particularly acute for newly qualified teachers.

General duties

Although there is no specific legislation aimed at controlling stress, bullying and violence at work, employers have legal duties under both statutory and common law that are relevant and safety reps have rights they can use to tackle these problems.

Under the Health and Safety at Work etc Act 1974 (HSWA), employers have a duty to ensure the health, safety and welfare at work of all their employees (see Chapter 1). The Management of Health and Safety at Work Regulations 1999 require employers to carry out risk assessments (see Chapter 3) and safety reps have extensive rights under the Safety Representatives and Safety Committees Regulations 1977 (see Chapter 4).

Stress

A series of high profile civil cases in recent years have helped focus employer attention on the issue of workplace stress. In practice, “stress” cases are exceptionally difficult and expensive to pursue. These cases share some important features. In particular, successful claims require persuasive expert medical evidence:

• that the worker has suffered psychiatric injury. Stress on its own is not enough;

• that the psychiatric injury was caused by work-related factors such as, for example, bullying, poor and unsupportive line management, excessive workload, long hours, poor work systems and processes and so on;

• that psychiatric injury to this particular employee was reasonably foreseeable, for example, because the employer has been warned of the risk of psychiatric injury, either directly by the employee or a GP or rep, or because the employee has a past history of mental health problems (for example, previous sickness absence for mental health-related reasons) known to the employer.

• that there was something the employer, acting reasonably, could have done to avoid the injury.

Typically, successful cases in recent years have involved an already vulnerable employee who returns to work after an absence linked to mental health problems at work such as stress or depression, and who is not given the on-going support and care needed to reintegrate effectively back into the workplace, leading to a further breakdown of mental health. It is the employer’s knowledge of the employee’s pre-existing vulnerability that makes the later breakdown reasonably foreseeable, fixing the employer with liability for the employee’s injury and loss.

The key cases that address an employer’s liability for personal injury caused by stress are Sutherland v Hatton [2002] IRLR 263 CA and Barber v Somerset County Council [2004] IRLR 475 HL. These cases confirm that an employer’s liability for psychiatric harm is no different from its liability for physical harm. In both cases, the test is what was reasonably foreseeable to the employer in the particular circumstances of the case. There are no “inherently stressful” occupations. In Sutherland v Hatton, the Court of Appeal issued some useful guidance in the form of 16 “practical propositions”. The complete judgment, including the guidance, can be found on the BAILII website at: www.bailii.org

Providing a counselling service

In Intel Incorporation (UK) Ltd v Daw IRLR 355), followed by Dickins v O2 plc [2008] EWCA Civ 1144, the Court of Appeal confirmed that providing a counselling service will not automatically discharge the employer’s duty of care in relation to workplace stress.

Exceeding the 48-hour week

Although exceeding the 48-hour maximum working week under the Working Time Regulations is relevant evidence in a work-related stress claim (Hone v Six Continents Retail Ltd [2006] IRLR 49), working excessive hours is not enough on its own to make an illness arising from it reasonably foreseeable (See Chapter 9: Working Hours).

Management standards

Unions campaigned for an Approved Code of Practice (ACOP) on stress. However, this proposal was rejected by the Health and Safety Executive (HSE). It instead published management standards for work-related stress.

The standards are voluntary guidance and are not legally binding. They set out good management practice for preventing work-related stress. The standards come under the headings of six “stressors” — stress factors that cause illness. These are:

• demands;

• control;

• support;

• relationships;

• role; and

• change.

The standards describe what employers could do to reduce stress at work.

How effective are the Management Standards?

An HSE study found that the stress management standards have failed to bring about significant improvements in psycho-social working conditions (HSE, Psychosocial working conditions in Britain in 2009, www.hse.gov.uk/statistics/pdf/pwc2009.pdf).

Mental health at work and collective responses

The Management Standards adopt an “organisational” as opposed to an “individual” approach to the tackling of workplace stress and to issues relating to job demands and job quality. Reps can play a key role in ensuring that stress problems are looked at from the perspective of work processes — adapting working practices to reduce stress, rather than seeing the problem as one person’s inability to cope. Unions can devise their own stress surveys, which will usually be based on the HSE’s Indicator Tool. For more information see LRD’s guide for safety reps, Stress and mental health at work, 2011 www.lrdpublications.org.uk/publications.php?pub=BK&iss=1562

Sometimes there is no alternative but to take collective action to tackle these issues. For example:

In April 2011, PCS members in 37 JobCentre Plus call centres took strike action to protest against the lack of control over their working day and its negative impact on their health, job satisfaction and ability to provide good customer service. Staff complaints included being monitored throughout the day and having no control over the stream of calls allocated to them, or the length or timing of rest or toilet breaks, as well as oppressive targets, at the end of which the staff member was expected to wind up the call. Staff struggled to manage the conflict between wanting to provide high service quality to vulnerable benefits claimants and having to meet unrealistically high call number and length targets.

The dispute resulted in an interim agreement containing concrete commitments to improve working conditions, including a written commitment from the DWP to provide staff with “the best possible job design, including varied work and a progression path [and that] staff are fully respected at work and are trusted to do their job without excessive and unnecessary checks and monitoring”. More details, as well as information about other union initiatives to try to improve job quality and staff wellbeing in a variety of employment settings, can be found in the LRD booklet, Social media, monitoring and surveillance at work, 2012 www.lrdpublications.org.uk/publications.php?pub=BK&iss=1604

Mental health at work and discrimination

The law prohibiting unlawful discrimination against the disabled is contained in the Equality Act 2010 (EA 2010). This says that a person has a disability where a “physical or mental impairment” has a “substantial and long-term adverse effect” on his or her ability to carry out “normal day-to-day activities”.

It is the worker’s responsibility to prove that he or she is disabled. Tribunals always expect persuasive expert medical evidence of any disability (unless the employer admits that the worker is disabled). GP letters or fit-notes indicating that a worker is suffering from “work-related stress” are not good enough for this purpose. On its own, “stress” is not a mental health condition protected by disability discrimination law.

To be covered by the definition of disability, a condition must have a “long-term” effect. An effect is “long-term” if it lasts for at least 12 months, or for the rest of a person’s life. Recurring conditions can amount to a disability even if they appear to have gone away, provided they are likely to recur. In practice, this need for a condition to be “long-term” often excludes reactive work-related depression caused by adverse life events such as redundancy, from the statutory definition of disability.

Bullying and harassment

Employers have a duty to provide a safe and healthy working environment. This includes protection from bullying and harassment.

Common law rights to protection against bullying

Under the common law, employers may be liable for psychiatric or psychological damage caused by bullying or harassment at work. The discussion on page 184 on psychiatric injury caused by work-related stress applies equally here.

Protection from harassment under the Equality Act 2010

Workers may have a claim for harassment, where the behaviour is as a result of one of the characteristics protected by the Equality Act 2010 (EA 2010), namely sex, pregnancy and maternity, sexual orientation, gender reassignment, disability, race, religion or belief, age, marriage and civil partnership.

Protection from harassment by third parties

The EA 2010 strengthened the position of workers at risk of bullying and violence by introducing a specific statutory duty on employers to prevent harassment by third parties, such as customers and suppliers. Under the EA 2010, employers are fixed with liability for failing to prevent the harassment of their staff if it happens three times and the employer knows about it and fails to take reasonable steps to prevent it.

Reasonable steps could include practical measures such as “zero tolerance” posters, reporting abusive visiting suppliers to their own employer, barring an abusive customer, improving security measures for vulnerable staff through practical responses which could include re-organising working practices, buddy-pairing, alarms, better building design, better lighting and GPS tracking devices (where appropriate and after proper consultation with staff).

Even though the employer’s obligation is only to take reasonable steps to protect staff from third party harassment, the government has announced that it believes this duty is too difficult for employers to comply with, because third parties are beyond the control of employers. The government says it only knows of one tribunal case which relies on this new duty. The case concerned a care home worker sexually harassed by a resident in circumstances where the care home took no steps to deal with the situation even though it was aware of it. The claimant succeeded in her claim.

The government is now consulting on scrapping this new duty (Employment law Review Annual Update 2012).

Practical steps to combat bullying

Employees should never suffer bullying in silence. The TUC publishes online guidance about what you can do to help yourself: www.tuc.org.uk/tuc/rights_bullyatwork.cfm#beingbullied.

Key points to remember are:

• tell someone — a colleague, a manager, your union rep if you have one. You may not be the only person suffering in this way. The problem may be systemic and a union rep may be able to help persuade management to address it as an organisational as opposed to an individual issue. In any event, a victim of bullying should not attempt to deal with it alone.

• keep a diary, and retain any evidence, for example screen prints of malicious Facebook entries, copies of text messages, emails and so on, Keep a record of any visits you make to the GP for associated problems such as anxiety or insomnia.

Other remedies

Constructive dismissal

Workers suffer bullying and harassment for all kinds of reasons, often unrelated to the reasons protected by the Equality Act. The law is particularly inadequate when it comes to protecting these workers. Theoretically, direct employees have the possibility of resigning and bringing a claim for constructive dismissal based on a fundamental breach of the employer’s general duty of trust and confidence, and of the employer’s duty to take reasonable care of an individual’s health and safety.

However, resignation is a dramatic step which should only ever be approached as a very last resort. Constructive dismissal claims are very difficult to win, not least because they usually involve fact-based disputes about who said what to whom. Supportive colleagues may well not be prepared to act as witnesses because of the threat to their own jobs. As well as the outcome being highly uncertain, the remedy is unsatisfactory. Compensation is wholly inadequate, limited to a claim for net lost earnings. Unlike claims of discrimination, a claim for constructive unfair dismissal does not entitle an employee to compensation for injury to feelings or psychiatric injury, no matter how severe the bullying has been. Re-engagement or reinstatement is highly unlikely, especially in cases involving inter-personal conflict, unless the employer is large enough for redeployment to be a practical possibility. In the twelve months to March 2011, only 8 reinstatement/reengagement orders were made, in the whole of the UK.

In any event, tribunal claims for unfair dismissal must be brought quickly — within three months of the ending of the employment. For more information see LRD’s Law at work 2012.

Industrial action

Over the past year there have been good examples of unions organising industrial action to respond collectively to management bullying when all else has failed. For example, in May 2011, the RMT used a successful strike threat to secure the reinstatement of safety rep Eamonn Lynch, unfairly sacked by London Underground. In other examples, a strike by more than 60 teachers, members of the NUT and NASUWT in April 2011 at Darwen Vale High School in Lancashire protested at management failure to support staff dealing with challenging pupil behaviour and NUT members went on strike at Langdon School in Newham, East London over excessive workload and oppressive management.

Unions have campaigned unsuccessfully for many years for a change in the law to make bullying a specific offence. A Dignity at Work Bill has twice gone through the House of Lords but the last government was not in favour of legislation and refused to give it time in the House of Commons. Instead, a government-funded investigation into workplace bullying, headed by general union Unite, worked with some of the biggest employers in the UK to draw up guidance on dealing with bullying. The employment relations service Acas has also produced a guide to bullying which safety reps can use to negotiate policies and the Health and Safety Laboratory (HSL), part of the HSE, has published a detailed review of research on bullying.

Several unions have been very active in addressing this issue. For example, the CWU signed a national agreement with the Royal Mail and the Equal Opportunities Commission (now the Equality and Human Rights Commission) after high levels of bullying and harassment at Royal Mail led to intervention by the Commission. The agreement includes a harassment and complaints procedure, independent investigators to handle formal complaints of harassment, a rolling survey of staff views and an extensive training programme for all workers and management. The union runs a national CWU Harassment helpline and supports branches via a Harassment Advice Network.

Restrictions on the ability of workers to access the employment tribunal to enforce individual employment rights, especially the planned introduction of fees, are likely to result in an escalation in collective responses, both organised and unofficial, and a diminishing reliance on individual rights.

Personal (psychiatric) injury caused by negligence

It is theoretically possible to bring a claim for personal injury in the civil courts where bullying has resulted in reasonably foreseeable psychiatric injury. Such cases are rare, complex, long-running, high risk and very expensive.

Protection from Harassment Act 1997

Yet another theoretical route through the civil courts is offered by the Protection from Harassment Act 1997 (PHA 97). The 2007 case of Majrowski v Guy’s & St Thomas’ NHS Trust, established that the PHA 97 can be used in an employment setting, making an employer vicariously liable for acts of bullying and harassment, as long as there is a sufficiently close connection with employment, and provided the worker can establish a “course of conduct”, directed at him or her and intended to cause alarm or distress.

In practice, however, it is exceptionally difficult to bring a case based on the PHA 97 as a response to workplace bullying. To amount to harassment under the PHA 97, conduct must cross the boundary between being “unattractive and even unreasonable” and become “oppressive and unacceptable” (Sunderland City Council v Conn [2008] IRLR 324) and “of an order which would sustain criminal liability” (Veakins v Kier Islington Ltd [2010] IRLR 132).

Financing any case in the civil courts for personal injury claims (including any claim for psychiatric injury) will be very difficult following the changes to the law brought in by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Violence

The 2010-11 British Crime Survey (BCS) disclosed approximately 341,000 physical assaults by members of the public on workers and 313,000 threats of violence. Those most at risk are police officers and frontline health and social welfare workers.

Retail workers are also at risk. Retail union Usdaw’s annual survey of abuse, threats and violence against shopworkers, conducted as part of its on-going Freedom from Fear campaign, revealed that over a million shop workers were assaulted, threatened or abused in 2010. 6% were subjected to violent attack, 37% were threatened with harm and a massive 70% suffered verbal abuse. The requirement to ask for ID before selling alcohol is a particular flashpoint for abusive behaviour. A 2012 survey by the British Retail Consortium supported Usdaw’s findings and reported an 83% rise in the number of reported incidents of verbal abuse, threats and violence against shopworkers in 2011, not including the August riots.

The employer’s duty of care under the Health and Safety at Work Act includes preventing violence at work. The HSE says that risk assessments should include violence wherever it is a significant risk.

Under RIDDOR (see Chapter 10), employers must report any incidents at work if they result in death, major injury or incapacity for normal work for seven or more days. This includes incidents where injury is caused by physical violence. In April 2012, the trigger point for the reporting obligation following incapacity for normal work was increased from three to seven days.

Emergency workers have some legal protection from assault. The Emergency Workers (Scotland) Act 2005 made it a specific offence to assault, obstruct or hinder someone providing an emergency service or someone assisting an emergency worker in an emergency situation. In 2008, the law was extended to include protection for GPs, nurses and midwives working in the community.

The Emergency Workers (Obstruction) Act 2006 applies to England, Wales and Northern Ireland. Under the Act, it is an offence to “obstruct or hinder” emergency workers responding to “blue light” situations. The Act defines emergency workers as firefighters, ambulance workers and those transporting blood, organs or equipment on behalf of the NHS, coastguards and lifeboat crews. (The police already have their own obstruction offence in the Police Act 1996). The maximum penalty for an offence is £5,000.

Employer criminal liability

Employers can also face criminal prosecutions over workplace violence:

In February 2010, a charity providing support and housing services to people who suffer from mental health problems was fined £30,000 with costs of £20,000 after a young support worker was attacked and killed by a service user. Mental Health Matters Ltd pleaded guilty to a charge brought by the HSE for a breach of the Health and Safety at Work Act for failing to do all that was reasonably practicable to ensure Ashleigh Ewing’s safety. She died after being stabbed by a client during a visit to his home. He later pleaded guilty to manslaughter on grounds of diminished responsibility.

The charity had failed to respond to a number of warning signs and failed to afford Ewing the level of protection that the nature of her job warranted. The HSE said that although the case was unusual, it showed the need for employers to assess risks to employees who visit individuals in their homes and for arrangements to be reviewed when changes occur.

Dangerous dogs legislation

In 2011, the Control of Dogs (Scotland) Act 2010 became law in Scotland. Unions continue to campaign for the same measures to be introduced in England and Wales. The legislation was the result of the CWU’s Bite-Back campaign, spearheaded by national safety officer Dave Joyce. The Act gives local authorities the power to serve dog control orders, or “dog ASBOs”, and holds owners fully and legally to account for the behaviour of their dogs. Comparable legislation has also been introduced in Northern Ireland, in the Dogs (Amendment) Act (Northern Ireland) 2011.

New sentencing guidelines

In England and Wales, the Sentencing Council issued new sentencing guidelines for incidents involving dangerous dogs in May 2012. Under the new guidelines, issued under the Dangerous Dogs Act 1991, owners of dangerous dogs who fail to stop their dog harming others should face at least six months in jail. Where convicted of allowing a dog to be dangerously out of control, judges should consider a prison sentence of up to 18 months. The guidelines also recommend that courts should order a dog’s destruction, unless there is proof that it cannot harm again. Information about the new guidelines is available from the Sentencing Council website at: http://sentencingcouncil.judiciary.gov.uk/docs/Dangerous_Dog_offences_scenarios_-_web.pdf.

Combating violence against retail workers

The HSE has published an online toolkit to help cut the risk of work-related violence towards shop workers. The guidance tells employers: “Wherever possible, make sure you have at least adequate staffing levels for surveillance and to meet customer demands.” Employers are also told they should “consult the union’s health and safety representatives”. The guidance adds: “Representatives will consult members, which can help you work together to identify issues and create strategies to reduce risks of violence.”

In practice, the downgrading of retail premises as “low risk” workplaces and the removal of the threat of proactive unannounced inspection by an external regulator (see Enforcement — Chapter 2) means that such premises are likely to become less safe and levels of threats of violence and intimidation towards retail workers are likely to continue to increase.