Work-Related Stress in the spotlight

Published: 26th May 2009

There are increasing signs that employers are being faced with a significant increase in the incidence of employee absence connected with work-related stress. It is suggested that the poor economic climate has made a bad problem even worse. A new study indicates that over 3.4 million working days were lost to stress in the first quarter of this year and it is calculated that equates to a loss to businesses of some £4 billon per annum. The study also suggests that in 2008 some 30% of employees were diagnosed with mental health problems of one sort or another.

One of the practical issues which faces employers is whether to intervene in an instance of work-related stress or whether to allow the employee to remain on long-term absence without that intervention, for fear of exacerbating the problem or for being criticised for trying to intervene. In the 2008 case of Dickins -v- O2 Plc the Court of Appeal suggested that employers should respond in a sensitive manner to employees' complaints of stress, should ensure that they respond fully, and that that response is a quick one. Employers should also be sensitive to changes in an employee's behaviour. It is not, if it ever was, appropriate to stand back from an employee's absence by reason of stress and some management intervention is now suggested.

The obvious fear for any employer is that they will behave in a manner which leads to criticism by a Tribunal or Court if the employee resorts to litigation if and when the work relationship ends. Recent cases suggest that an employer will most often be criticised if there has been no "management" of work-related stress and sickness absence rather than being criticised for intervening. Thus, it is now regarded as good practice for an employer to refer an employee for an Occupational Health assessment. Once an assessment has been carried out, an employer will be criticised if it fails to implement the Occupational Health recommendations that result from the assessment, and if it fails to discuss with the employee those steps which might alleviate the problem, assist the employee to return to work and so on. Certainly, if an employer has been put on sufficient notice that an employee is complaining of work-related stress, that employer will face a risk further down the line if they do not seek some expert medical opinion. This was confirmed in the Dickins case which found that the employer, being put on notice that the employee was suffering from stress, should have sent the employee home on full pay and should have been sent for an Occupational Health assessment. The employer was subsequently held liable in negligence because it had failed to send the employee home, this was regarded as a management failing, and it was decided that the stress-related illness was suffered as a result.

Employers can also consider offering an employee the opportunity to have counselling, or referring that employee to counselling. In the case of Sutherland and Others -v- Hatton and Others (2002) the Court of Appeal took the view that an employer could discharge their common law duty of care towards an employee by providing access to counselling and support. Nevertheless, it has also been recognised by the Court of Appeal subsequently that counselling may in some circumstances have limited value. Where dismissal is being contemplated it is always necessary to consider what alternatives there might be before making the final decision. An employer should certainly never lose sight of the duty which is imposed by the Disability Discrimination Act 1995 to make reasonable adjustments. However, whilst it would appear that an employer was acting reasonably, or even going further than is required, by extending, for instance, a period of sick leave or sick pay, this may of itself cause problems. An employee may feel that they are covertly being informed that they are no longer regarded as a valuable employee. Others may feel that they are being given charity by their employer which causes loss of esteem and embarrassment. In each and every case the particular circumstances which are applicable must be considered in isolation.

Most employers are now familiar with the concept of a phased return to work, which might be by working shorter hours, working fewer days each week, or a combination of both. There are cases in which the Courts have decided that employers have been negligent in failing to reduce hours of work where employees have complained of over-work. Reducing hours, or allowing a phased return of some sort, may also meet the duty to make reasonable adjustments in disability discrimination cases.

Employers must take care in the management of the employee's return to work. Requiring an employee to return to exactly the same working environment in which the stress was caused in the first place is likely to lead to further absence, further stress, and in the end, litigation. It is sensible for the employer to monitor an employee who has returned to work for a period of time, and to offer some sort of mentoring or support. If, for instance, a phased return is offered, this should be clearly set out, should be agreed in advance of the return to work, and the employer must ensure that its terms are implemented, otherwise it faces the risk of a finding of liability in any subsequent litigation.

Managing work-related stress absences is not easy. However, probably the worst thing to do is to ignore the problem, and ignore the employee who is suffering from the stress. When an employer intervenes, the plans which are put in place must be implemented and where medical opinion has been sought, the recommendations of the medical adviser should be carried out.

There is little doubt that the current economic climate is causing stress, both to employers and employees. It is said that one of the factors which most often causes stress to employees in the recession is the feeling of "uncertainty". That uncertainty is often caused by poor or non-existent communication on the part of an employer. Employees are often happier, and therefore less stressed, if they know what is going on. As an employer, you should, if it is possible against the background of the need for confidentiality for business reasons, keep your employees as informed as you can in order that they can operate against a background of knowledge, and make plans accordingly.

If this raises any issues for your organisation, please speak to your usual contact in the Mace & Jones Employment & HR Team at Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.