Stress

The extent of stress at work — recent evidence

Once again the TUC’s latest survey of union health and safety representatives, published in 2014, found that stress is the top concern in UK workplaces.

Over two-thirds of safety reps (67%) taking part in the 11th biennial survey said that stress, and the effect it is having on their colleagues, is one of the main concerns they have to deal with at work.

The survey suggests that stress is a particularly high concern in the public services that have been most affected by austerity, where top-down reorganisations and back-door privatisation are having a huge impact on staff morale and well-being: in the NHS, schools, local government and the civil service.

The TUC report Good practice in workplace mental health also sets out that workers have been experiencing a significant increase in stress, which in some cases has led to mental ill health, as a result of the impact of austerity on their work and home lives.

Its claim is supported by a number of recent reports:

• a March 2015 Joseph Rowntree Foundation report, The cost of the cuts: the impact on local government and poorer communities, says that cuts to local authority budgets are leaving the staff delivering public services facing “unsustainable stress”;

• a recent online survey of over 3,500 emergency staff by the mental health charity Mind found that almost nine in 10 frontline medics, police and firefighters are struggling with mental health problems but are too scared to ask for help. Mind is urging emergency services organisations to consider signing its Blue Light Time to Change pledge — a commitment to develop meaningful action plans to support the wellbeing of their staff and volunteers;

• a poll conducted for the British Heart Foundation found that more than two-fifths of employees feel that work pressures have damaged their health in the past five years, causing them to eat badly, put on weight, smoke and drink more, and exercise less; and

• research published in the scientific journal Occupational Medicine in January 2015 shows that mental health disorders are the most common work-related ill health problem in Britain and Ireland, accounting for over half of all cases reported by occupational physicians.

General duties

Although there is no specific legislation aimed at controlling stress, bullying and violence at work — there is specific law on harassment — 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).

Psychiatric injury

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;

• 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;

• 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; and

• 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 ongoing 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/ew/cases/EWCA/Civ/2002/76.html

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

• demands;

• control;

• support;

• relationships;

• role; and

• change.

How effective are the Management Standards?

An HSE study found that the stress management standards had 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).

New union guidance on managing stress

The TUC’s new safety reps’ guide to the HSE stress management standards says that workplace stress has been viewed as a major problem by trade unions since the 1980’s, but that while many employers have accepted that stress is a major problem in their workplace, few have any idea how to tackle it effectively.

It says that the HSE Management Standards for Work-related Stress provide clear guidance to help organisations identify practical solutions to the problem and that safety representatives should encourage their employer to implement them in their organisation.

“Unions have a major part to play in ensuring that the employer takes their responsibilities to tackle work-related stress seriously. Dealing with stress at work highlights the fact that health and safety is not divorced from the rest of a union’s industrial activity,” says the TUC. “Unions and employers working together to invest in health and safety can result in a vast improvement in other aspects of industrial relations and a working environment in which stress is managed properly.”

The TUC guide gives a background to the problem of stress; outlines what the standards are; explains what safety reps and employers must do; explains the process; and directs reps to further sources of information.

It can be downloaded from the TUC website at: https://www.tuc.org.uk/workplace-issues/health-and-safety/guides-and-reports-reps/stress/safety-reps-guide-hse-stress.

A new European health and safety agency EU-OSHA e-guide for managing stress and psychosocial risks in the workplace has been published as part of a Healthy Workplaces Manage Stress campaign. The Agency says that although stress is one of the main reasons for lost working days in Europe and a concern in some 80% of businesses, less than a third of European establishments have procedures in place to deal with the problem. The e-guide contains:

• simple explanations of risks, their causes and consequences for workers and businesses;

• advice and instructions on how to spot problems early and take action;

• practical examples of prevention and risk management, particularly for small businesses; and

• information on national resources.

More information can be found about the e-guide at: www.healthy-workplaces.eu/en/tools-and-resources/a-guide-to-psychosocial-risks.

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: www.lrdpublications.org.uk/publications.php?pub=BK&iss=1716.

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

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, 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.