Back in 1996 the first stress pay out was publicized when a Social Worker, John Walker, was awarded £175,000 when he brought a claim against his public sector employer. Since then, there has been a significant number of claims against employers, resulting in substantial pay-outs, and in some cases as high as £400,000.
What types of claims can an employee make?
An employee can bring a claim against their employer under two different avenues, either an Employment Tribunal Claim or a Personal Injury claim, in the main the higher pay-outs are due to Personal Injury Claims. An Employment Tribunal claim is often tied in with other claims, such as perhaps constructive dismissal and/or discrimination such as disability claims.
Stress could be deemed as a disability
In terms of disability, it is unusual for Stress to be deemed a disability, but it is not beyond the realms of possibility so each case would need to be judged on its own merits. Long term stress however can lead to other mental health issues such as anxiety and depression, and Post Traumatic Stress Disorder. If an employee is deemed to have a disability which is connected to stress, then this is likely to increase the risk of an Employment Tribunal Claim and subsequently increase any compensation amount award. It should be noted that Employment Tribunal Claims for any discrimination award is unlimited.
A Duty of Care
All employers are under a duty of care for the health and safety of their employees in the workplace, and this duty includes protecting employees against work related stress. It is however acknowledged that employees may have different reactions to work situations, and what one employee may find to be stressful another may have no reaction to what is being asked of them. For an employee to be successful in any claim against their employer, they have to demonstrate that the employer has breached their duty of care and that it had been “reasonably foreseeable” that an injury would result from that breach.
How you can mitigate the risk of a claim:
Carry out stress risk assessments and take appropriate action, wherever possible. If an employer does not do stress risk assessments as a matter of course, they should at least carry them out if they become aware of an employee raising stress concerns,
Be aware that the employee is exhibiting signs of stress whilst at work and even being absent from work due to stress. This can include behaviours such as the employee being more irritable, aggressive, impatient or wound up than they would normally be. It may be that the appear anxious or nervous, they may be overwhelmed and unable to concentrate which may ultimately affect their performance or ability to do tasks at the same rate of speed as they have previously done.
Holding return to work meetings when an employee has been absent from work due to any type of sickness would also be a way to ensure that their duty of care is being complied with. Often with any type of Mental Health absence, an employee may be reluctant to ring in sick and give the honest reason for their absence, but in a return to work interview it may be easier to speak about their health and allow the employer to explore this in more detail and encourage the employee to talk.
How you can help manage stress in your workplace
An employer should also ensure that they are looking after their staff in terms of working hours and break times, if an employee is constantly working long hours, then this should flag concerns and if not already done, the stress risk assessment should be carried out. An employer should encourage staff to take their break times, along with also ensuring employees are aware that they should take their annual leave.
If an employee is absent due to work related stress, this is a very clear indicator that a discussion needs to take place with the employee, it can be a fine line to ensure you are not putting undue pressure on the employee to, for example, attend a meeting in the workplace to discuss the situation, but you could offer to do this remotely or even meet in a neutral venue if COVID restrictions allow.
When work related stress is recorded
Once you are aware of an episode of work-related stress, your duty becomes even more important to be aware of, because this is where “reasonably foreseeable” comes into play. If you are aware of concerns and do nothing to support your employee, then this could very easily give rise to a personal injury or employment tribunal claim.
You need to:
Ensure that you do a risk assessment.
Keep notes of any discussions or meetings you have with the employee.
If you can agree some changes, this could be to the duties of the role or working hours then confirm this in writing to the employee, e-mail is fine as it does not have to be anything formal.
You could also consider involving an Occupational Health Provider as they can carry out specific medical assessments for stress and often give suggestions as to what an employer can do to support their employee.
It may be that some of the suggestions are simply not feasible, but you need to be able to show that you have done all you can to support the employee and given due consideration to any suggestions.
Consider signing up to an Employee Assistance Program
Finally, here at Alcumus we have covered Employee Assistance Programs (EAP) in a previous webinar and also mentioned it in our many blogs on managing Mental Health in the Workplace. An EAP is a benefit you can give to your employees, usually at a fairly low cost, which allows them access to helplines, counselling and many other benefits, if you can offer this to staff and encourage them to use it, it can go a long way to show you are being a caring and responsible employer and help defend any claims you may get.
We can recommend an EAP Provider, so if you are interested in exploring this or discussing stress at work in more detailed, please speak with your dedicated HR Consultant.