We are all familiar with managing the physical risks associated with our businesses but how often do we turn our minds to the less visible aspects of that?

There has undoubtedly been a shifting trend in the public perception of mental health in recent years, with stress and mental illness no longer stigmatised as they once were. This no doubt owes, in no small part, to the support of a number of high-profile public figures in the press and many campaigns aimed at supporting positive attitudes towards fostering good mental health.

When you look at the statistics, it’s no surprise!

HSE defines work-related stress as “the adverse reaction to excessive pressures or other types of demands”. According to their latest figures1, work-related stress, depression or anxiety accounted for 12.8 million lost working days in 2018/19 and 0.6 million cases out of a total of 1.4 million work-related ill-health cases generally.

To have a reliable and productive workforce, employers need them to be healthy and, more than ever before, HSE are shining a light on the promotion of positive mental health in the workplace.

According to HSE, causes of stress can be broken down into six principal categories:

  • Demands
  • Control
  • Support
  • Relationships
  • Role
  • Change

Understanding how those can affect people is key to managing a workplace so as to minimise their effects.

A risk-based approach

The public are increasingly conscious of promoting positive mental health and it is certainly possible that the figures cited above are due to that increased awareness as opposed to a rise in incidences of ill-health. Either way, the fact is that workplace stress matters and HSE are getting to grips with it.

With the rise in reporting and the reduction of stigmas, well-informed staff are more likely to speak out than they might once have been. The general public are often ready to stand up for their physical safety (“I’m not going to use that machine until you train me!”) but how confident are they to stand up for the protection of their mental health? Anecdotally, you may find that this is becoming more common.

Risk Management and Claims Defensibility

Earlier recognition of mental health issues, with record numbers of mental health first aiders being trained in the UK, is undoubtedly welcomed and should lead to better management, treatment and support. However this does highlight the need for employers to ensure that their strategies in respect of managing stress in terms of policies, risk assessment, prevention and intervention measures are up to date and staff trained to effectively implement.

With employees becoming more forthcoming in respect of work related stress, those so minded to make civil claims will be better placed to overcome the hurdle of “foreseeability” as set out in the Court of Appeal Decision of Hatton v Sutherland (2002). Employers should ensure that their good practices are well evidenced and sensible claims defensibility measures adopted wherever carefully defined “trigger events“ occur. A stitch in time, by way of legal input, when managing a return to work that may require “reasonable adjustments“ or when dealing with a “grievance”, may well be the best use of resource, to ensure the overall benefit of substantial investment in well-being programmes is maximised and enable employers to prove that reasonable practicable steps have been taken.

Risk Assessment

As employers, whether or not our employees are speaking out, we all have a duty to risk assess work activities so that they don’t have to.

Most employers are keen to ensure that our employees do not find themselves overwhelmed or unable to cope, putting pressure on them and requiring additional resource from their colleagues and managers. Ultimately we know that employees are liable to take time off or eventually leave stressful jobs altogether. We can help to avoid this by taking the relatively simple step of implementing a mental health risk assessment.

Employers will be familiar with their duties to risk assess work activities and the approach to mental health and workplace stress is no different. Fortunately, there is an abundance of guidance on the HSE website, including a workbook to assist managers and businesses in their duties. This is free to download here.

What does the future hold? The regulatory landscape

All employers have a duty, under s2 Health and Safety at Work etc Act 1974, to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. Risks to the health, safety and welfare of the employee include psychological harm and work-related stress.

The HSE therefore has the power to prosecute employers whose practices, procedures or activities have caused injury or harm to workers. Although stress has been touched upon in prosecutions which relate to physical harm, it is only a matter of time before HSE feel confident to start bringing prosecutions against businesses where psychological harm has been caused as a direct result of circumstances leading to stress in the workplace which have not been adequately managed.

Unlike a case in which a claim is brought by an employee in the civil jurisdiction, the HSE remit is criminal and in order to prosecute under the Health and Safety at Work etc Act 1974 they will only need to demonstrate that the risk of harm arose. The fact that causation may be in issue will, in due course, prove to be irrelevant. If charged, the reverse burden of proof applies and, to defend a prosecution, it is over to you to prove that you did all that was reasonably practicable to ensure the health, safety and welfare of the affected parties.

To date, HSE inspectors have focussed on the exposure of workers and others to risks of physical harm. It remains to be seen when a prosecution of this nature will land but it cannot be far away, so our advice to you is to apply the guidance available and take steps towards a happy, healthy workforce.