In a 24/7 society, just emerging from economic recession, workforces are feeling the squeeze from all areas of business. It may come as no surprise that work-related illness, particularly stress, is on the increase. The retail environment is busy, frenetic and pressured. Human resources and claims managers must work together to reduce the impact of those stresses and anxiety which can severely affect employees and their productivity ultimately resulting in claims. Sue Hogg, one of our retail disease lawyers, considers the law and the latest statistics and offers some legal therapy to support the avoidance, and defence, of such claims.

What is stress?

Stress is subjective and is therefore extremely difficult to define. The Health and Safety Executive (HSE) defines stress as the ‘adverse reaction people have to excessive pressure or other types of demand placed on them’. It is a reaction and will not normally amount to an illness in itself, although it can result, or be a trigger, for other illnesses. Its effects manifest in physical and mental conditions, such as anxiety, depression and a number of mental health disorders (e.g. adjustment disorder) and heart disease.

Stress also links to staff turnover and error which ultimately affects the profitability of a business. Stress can affect all levels of employees and recent research shows that workrelated stress is widespread and not confined to a particular sector, job or industry.

The main work activities attributed to causing or exacerbating work-related stress are work pressure, lack of managerial support and work-related violence and bullying.

Is stress on the increase?

Stress is the number one cause of sickness absence. The most recent labour force survey indicates that stress in the workplace is increasing.

  • In 2011/2012 40% of work-related illnesses were for stress.
  • In 2012/2013 over 48% of new cases of work-related illnesses were related to stress, anxiety or depression.
  • In 2012/2013 1% of the wholesale/retail trade workforce took time off work with illness (and less than 1% with injury).

HSE statistics also found higher rates of stress in the largest workplaces (over 250 employees), that more women than men suffer with stress and that stress is more likely in middle-aged workers (aged 35 – 54).

Is there a claim?

The law relating to stress in the workplace stems from health and safety legislation, restrictions on working hours, discrimination and harassment legislation and common law negligence.

Under the Health & Safety At Work Act 1974, an employer is under a general duty to ensure, so far as is reasonably practicable the health, safety and welfare of their employees.

In order to bring an occupational stress claim based in negligence, an employee must show that the employer owes them a duty of care and that it has breached that duty. They must also show that they suffered psychiatric injury as a result – a claim for stress or anxiety in itself is not enough.

The employee then has to prove that the injury was a reasonably foreseeable consequence of the breach. The leading case is Hatton -v- Sutherland (2002) in which the Court of Appeal set out 16 propositions that form the basis against which stress claims are considered. They set the bar high in respect of foreseeability of injury. The employee must show that their employer knew, or should have known, that he was at risk of suffering psychiatric injury, either from previous absences or as a result of complaints made, and that the employer failed to take reasonable steps as a result.

However, recent case law has started to reduce the standard of care and other avenues to bring successful claims for stress-related matters are on the increase. Employers cannot afford to rest on their laurels.

The Protection from Harassment Act

1987 (PHA) has opened up another avenue for claims for prosecution. Section 1 (1) PHA states that ‘a person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought reasonably to know amounts to harassment of the other’. Persons found guilty of this offence can be liable for imprisonment or a fine. It can also result in civil proceedings and awards may include damages for anxiety alone – there is no requirement for the injury to be foreseeable and the claimant need only show ‘hurt feelings’. Harassment includes alarming an individual or causing distress and can include cyber bullying.

How to protect your business and employees

Employers are required by the Management of Health and Safety at Work Regulations 1999 to make an assessment of health and safety and the HSE expects this to include a risk assessment covering stress. The HSE has also published a set of management standards that define the key areas of work design to be considered and managed in order to promote health and wellbeing in the workplace. The HSE website is a useful starting place, but you will need to give careful consideration to the specifics of your organisation and to tailor generic ideas to the precise nature of the workplace and number of staff with which you are dealing.

Given the interaction between civil and employment tribunal claims in this area, it is imperative that human resources teams work closely alongside insurance/claims teams in order to ensure a strategic and coordinated approach.

Ultimately, a stressed out workforce is an unproductive workforce and from the employer’s perspective forewarned is forearmed. As well as impacting on profitability, claims in which depressive episodes resolve within a couple of years lead to claims for damages in the tens of thousands of pounds (plus costs). Severe cases, where the employee loses the ability to work altogether, will attract awards of hundreds of thousands of pounds. This can significantly impact upon claims records, costs of premiums and ultimately the insurability of a business.

How to protect your business and your employees: practical tips

Carry out a stress audit and ask employees to list their concerns in respect of stress.

  • Use return to work after sickness absence reviews, performance appraisals and employee surveys to identify any stress-related reason for absence or poor performance.
  • Train managers to recognise situations likely to cause stress, to identify the symptoms of stress and how to manage stress.
  • Design a stress policy. The policy should make it clear that stress should be taken seriously and give employees guidance on how to deal with the effects of stress and how to raise these concerns within the workplace.
  • Consult employees, employee representatives or unions on organisational changes.
  • Avoid placing unreasonable demands on employees by prioritising workloads and delegating duties appropriately.
  • Provide adequate training.
  • Provide support through an employee assistance programme or occupational health service and/or provide independent confidential counselling.
  • Stress and violence often go together and an employer should have policies to prevent violence in the workplace, not just for threats by the public, but also between employees.
  • Have IT policies in place to monitor emails between staff and access to the internet.