The number of claims brought by employees against their employers for psychiatric injury arising from stress at work is ever-increasing. Such claims are notoriously complex, largely due to the fact that any warning signs or symptoms are not usually physically evident and are difficult to detect.
Such difficulties are compounded by the perceived stigma which attaches itself to the victims of these sorts of claims both in their current employment and in any future employment. Part of this perceived stigma can mean that employees are reluctant to admit that they are unable to cope with the pressures of work and as such, do not give their employers any warning signs as to the stresses they are under in the workplace.
Nothing to see here…
To succeed in bringing a stress at work claim, any injury suffered by the employee as a result of stress must have been reasonably foreseeable by the employer. Foreseeability of injury caused by stress is not the same as the foreseeability of stress. It is not enough for the employee to be simply feeling stressed and the employer to have foreseen this. The employee must prove that the employer ought to have foreseen that the employee would suffer actual injury as a result of stress. This can be difficult if the employee has tried to carry on regardless, concealing any potential warning signs.
A recent case in England has reinforced the notion that any warning signs from the employee must indicate an imminent injury to the employee’s health, not one that may occur in the future. It is this imminent injury which will trigger the employer’s responsibility to take steps to avert the injury.
Importantly, the imminent injury caused by the stress must be directly related to the workplace and not related to outside factors over which the employer has no control.
Failure to take any action on matters within the employer’s control may not only lead to the employee bringing a successful stress at work claim but also potentially a claim of unfair dismissal. There is an implied duty in all contracts of employment which requires employers to provide a safe working environment. There may also be an express duty written into the employee’s terms and conditions of employment. If there is a breach of this duty the employee is entitled to resign and claim constructive unfair dismissal.
Head in the sand…..
Though employers owe their employees a duty of care to provide a safe working environment, this does not require them to constantly ask their employees if everything is ok. Employers should, however, be aware of any potential warning signs.
As an employer, once you are aware that an employee is finding it difficult to cope with the pressures of work you are under a duty to investigate the problem and do what you reasonably can to resolve it. What is “reasonable” in this context will depend to some extent upon the size of your organisation and the resources available.
First, you should talk with the employee to identify the causes of stress. This could involve undertaking a risk assessment, perhaps considering work loads, communication systems and working relationships within the organisation. You should then work with the employee on an individual basis to try to alleviate the sources of stress, for example, considering whether additional training would assist or whether there could be any delegation of the employee’s duties, increased supervision or a short break away from the office.
You may also consider drafting a policy (or reviewing an existing policy) giving clear guidance on how potential problems relating to stress will be dealt with, identifying warning signs (e.g. abnormal levels of sickness or absenteeism) and providing details of the appropriate level of support that can be asked for (and given) at each stage.
In more serious cases, you should consider referring employees to confidential counselling or stress management training. In very severe cases, you should consider whether the employee should stop work for a longer period until further investigations have been carried out and measures can be taken to alleviate the stress.
By being alert to warning signs of stress, you should not only be able to relieve the pressure on the stressed employee but you should also relieve the pressure on yourself, as their employer, by avoiding a stress at work claim.