Legal issues, HSE and government guidance

THE LEGAL SITUATION

There are no laws specifically relating to stress. The legal aspects of stress are extremely complex and covered by a number of areas of legislation, with new employment laws that have a bearing on stress related problems appearing on a regular basis. This makes it very confusing for the employer. However, to date, most successful stress cases have been through civil courts as personal injury claims.

PERSONAL INJURY
Employers have always been under a general duty under the law of negligence to take reasonable care for the health and safety of their employees. The employee must satisfy the court (on balance of probabilities) that an action wasn’t reasonable or practical under the specific set of circumstances. The courts have been increasingly willing to accept personal injury claims for stress related illness.

ApP works with managers to help them understand the concept of stress and how to reduce the likelihood of personal injury claims.

OTHER RELEVENT ACTS
There is also a variety of other legislation relevant to stress in the workplace such as:

The Working Time Regulations 1998
These are very pertinent to stress as working long hours can result in stress.
They are essentially a health & safety measure passed under Article 118(a) of The Treaty of Rome and impose limits on the number of hours which employees can be expected to work in any given week or averaged out over a period of time. They also cover daily rest breaks, weekly rest periods and a minimum number of days holiday.

Employment Rights Act 1996
Gives employees the right not to be unfairly dismissed, including constructive dismissal.

Constructive Dismissal
May be brought where the nature of an employees work is such that they cannot cope and consequently resign, and the employer, although aware of this, does nothing to alleviate the problem.

Unfair dismissal
Where an employee raises concern about stress levels in the workplace and is subsequently dismissed, they may be able to claim that dismissal was automatically unfair on the grounds that the dismissal was connected with either whistle blowing or to raise health and safety concerns.

Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995.
Treatment of an employee which is initiated on the grounds of sex, race or disability will constitute unlawful discrimination. This can be bullying, oppressive management or ‘any other detriment’. It has been established under the Disability Act 1995 that mental health problems can constitute a ‘disability’. In 2005 this was extended to include stress per se. Accordingly an employer can become liable under the Disability Discrimination Act for treating an employee less favourably on the grounds of disability if that disability is stress or a depressive illness resulting from stress at work.

Protection from Harassment Act (1997).
The Protection of Harassment Act 1997 was originally enacted to tackle the issue of stalkers. However following the recent high profile case Majrowski v Guy’s and St Thomas’ NHS Trust in the House of Lords July 12th 2006 it now appears that the Protection of Harassment Act can be applied to harassment of all types and protects employees while they are at work or elsewhere. It also raises the issue of vicarious liability.

HEALTH AND SAFETY AT WORK ETC ACT 1974

Although all the above legislation is relevant to stress the act most commonly associated with stress is Health and Safety at Work etc. Act 1974. In Section 2 (1) of this Act, employers have an overall duty to ensure, so far as is reasonably practicable the health, safety and welfare of their employees at work. This includes taking steps to make sure they do not suffer stress-related illness as a result of their work. The duty extends to mental as well as physical health. This means that employers need to be aware of any situations where employees could be harmed, assessing the risk and taking action if deemed necessary.

However, the Act doesn’t mean that the employer must act at all costs and they need to weigh up the degree of risk in the workplace versus the time, trouble, cost and physical difficulty of taking measures to avoid or reduce the risk. If an employer were to be taken to court for breach of duty under the Act they must satisfy the court (beyond reasonable doubt) that an action wasn’t practicable or reasonable under the specific set of circumstances.

NB Under the Act employees also have a duty for their own safety.

Management of Health and Safety at Work Regulation 1999

In 1992 The Management of Health and Safety at Work Regulations were introduced (subsequently updated in 1995 and 1999). These regulations state employees have a legal duty to identify hazards and take action. They therefore require the employer to carry out regular risk assessments, identify hazards and taking action. As the Health and Safety at Work etc. Act 1974 now includes harm by work related stress, under The Management of Health and Safety at Work Regulation 1999 there is also a duty on employers to carry out regular risk assessments to ensure staff are not harmed by this.

To help organisations meet these legal duties of care the HSE have produced a variety of different guidelines. The latest - “.Managing the causes of work-related stress” ( November 2007) describes the major cause of stress at work (the risk factors) and shows employers how to carry out a risk assessment for work related stress using the 5 step risk assessment process.

STRESS RISK ASSESSMENT PROCESS

Unfortunately carrying out a risk assessment for work-related stress is more difficult than for other health hazards.

• Most people do not fully understand the stress concept.
• People may not want to show or admit they are stressed.
• It is impossible to separate home and work stress yet an organisation is not responsible for home pressures.
• It cannot be carried out by the H&S officer like fire hazards as everyone is different. One person may be more at risk than another in the same circumstances.

A stress risk assessment can be carried out at either a collective or individual level.

A collective risk assessment involves determining problems common to a whole population and working with that population to find solutions. Depending on the size of the organisation this may be done at organisational level departmental level or team level

An individual risk assessment involves a manager discussing a problem with individual employees and trying to determine reasonable and practicable solutions for both parties.

While the HSE state that “systems should be in place to deal with individual differences” they also state that “collective protective measures must be given priority over individual protective measures.”

The HSE guidance therefore shows employees how to carry out a collective risk assessment.

The Guidance

The guidance explains how to carry out a stress risk assessment using the familiar 5 steps

However, to be more manager friendly it is better to think of the statements in the terms shown in black.

1. Identify the Hazards (Understand the causes of stress at work – the HSE risk factors and the Stress Management Standards)
2. Decide who may be harmed and how (Gather data)
3. Evaluate the risk (Explore problems and develop solutions)
4. Record your finding (Develop and implement action plans)
5. Monitor and review

Stage 1 - Understand the causes of stress at work
This basically involves all employees at all levels familiarising themselves with the risk factors and Management Standards so they are aware of causes and what can generically be done to improve matters.

Here managers are expected to have an understanding of stress such that they need to acknowledge that stress has the potential to affect any member of staff and recognise that the risk factors can affect people in different ways. Under a certain set of circumstances stress can happen to anybody and stress should therefore not be seen as a weakness.

ApP delivers training programmes to help both employees and managers

• understand the concept of stress,
• tackle the myths and stigma of stress and mental health
• understand the causes of stress at home and at work
• identify symptoms of stress
• to explain the risk assessment process

Click HERE for more information about stress management training courses

Stage 2 – Gather data
This is the heavy weight stage and the stage that many mistakenly describe as risk assessment as this is where employers need to gather data and identify causes of stress in the organisation. (NB All five stages together comprise the risk assessment not just part 2) To identify causes of stress the HSE recommends a variety of methods.

First, existing quantitative data such as staff absence figures and productivity data can be used to identify hot spots. Data from staff satisfaction surveys may also be very useful.

The HSE suggest that organisations may also like to use a stress survey. There are many commercially available surveys on the market which vary in depth and quality of data generated. Some are generic while some may be a tailored to a specific organisation. The HSE have also produced a generic survey available on their web site.

In addition to quantitative data, the HSE also suggest that qualitative information may be used too. This can be gained by running specific focus groups or less formally via team meetings, appraisals, return to work interviews and exit interviews. Throughout, organisations are advised to use a combination of methods.

The final step in stage three is then to communicate the results to all levels of the organisation. The manager can then move on to step 3

ApP carries out stress audits for the organisation or helps organisations do this in house. We also run focus groups to determine causes of stress at work and produce full reports. Focus groups can be included as part of stress management training providing a very cost effective way of tackling the issue.

Stage 3 - Explore problems and develop solutions
This stage involves managers discussing the results of step 2 with staff. The aim is to try to determine what is being done well and what areas need improvement. There is a need here to decide on targets for improvement. For each risk factor managers need to ask “Are we doing enough?” “What do we currently have in place?” “What is working well?” “What else needs to be done?” Staff at all levels need to be involved in this stage and opinions and ideas valued. All members of staff need to communicate with openness and honesty.

ApP facilitates focus groups to try to find solutions and works with managers to help them put these into practice.

Stage 4 - Develop and implement action plans
In developing an action plan senior management and employee representatives of all levels should be involved. A major requirement here again is communication.

Writing an action plan enables managers to set goals to work towards, prioritise important issues and demonstrate to all that they are serious about addressing employees’ concerns. Action plans also provide something to evaluate and review against which is the final step.

ApP helps managers to write action plans

Stage 5 - Monitor and review
This stage is often forgotten but is still a major part of the 5 step risk assessment process. If stress management is to be successful it is important that progress is monitored. This can be done using the action plan to ensure all actions have been satisfactorily undertaken. In doing this the effectiveness of the actions taken can be evaluated and any necessary changes made. Again at this final stage the HSE emphasise the need to update senior managers and employees on progress and provide them with the opportunity for feedback.

In addition to the 5 steps the HSE also stress the importance of

preparation

running the process as a proper project,

writing a stress policy and

gaining senior management commitment.

ApP helps organisations with all aspects of preparation and runs specially designed training courses for projects groups to help them understand the risk assessment process and plan how best to carry it out within the confines of the organisation.

ApP helps project groups and H&S managers write policies,

ApP runs special awareness seminars for senior managers to help gain commitment.

Dr Anderson at the launch of the HSE Management Standards

THE STRESS MANAGEMENT STANDARDS

The Stress Management Standards are basically a means to measure the success and progress an organisation has in managing stress. They are not new legislation but are intended to help employers meet their existing duties under HSWA and MHSW Regs.

There are 6 Standards based on the 6 risk factors for stress. Each Standard comprises a major statement about good management practice and represents a desirable state to be achieved. In addition to this major statement, each standard is accompanied by a number of additional statements. These explain what should be happening in the organisation if the standard is to be achieved.

The Standards are as follows:

The standard is that:

• Employees indicate that they are able to cope with the demands of their jobs; and
• Systems are in place locally to respond to any individual concerns.

What should be happening?

• The organisation provides employees with adequate and achievable demands in relation to the agreed hours of work
• People skills and abilities are matched to the job demands.
• Jobs are designed to be within the capabilities of employees.
• Employees' concerns about their work environment are addressed.

The standard is that:

• Employees indicate that they are able to have a say about the way they do their work; and
• Systems are in place locally to respond to any individual concerns.

What should be happening?

1. Where possible, employees have control over their pace of work.
2. Employees are encouraged to use their skills and initiative to do their work.

The standard is that:

• Employees indicate that they receive adequate information and support from their colleagues and superiors; and
• Systems are in place locally to respond to any individual concerns.

What should be happening:

• The organisation has policies and procedures to adequately support employees.
• Systems are in place to enable and encourage managers to support their staff.
• Systems are in place to enable and encourage employees to support their colleagues.
• Employees know what support is available and how and when to access it.
• Employees know how to access the required resources to do their job.
• Employees receive regular and constructive feedback.

The standard is that:

• Employees indicate that they are not subjected to unacceptable behaviours, e.g. bullying, at work; and
• Systems are in place locally to respond to any individual concerns.
• What should be happening:
• The organisation promotes positive behaviours at work to avoid conflict and ensure fairness.
• Employees share information relevant to their work.
• The organisation has agreed policies and procedures to prevent or resolve unacceptable behaviour.
• Systems are in place to enable and encourage managers to deal with unacceptable behaviour.
• Systems are in place to enable and encourage employees to report unacceptable behaviour.

The standard is that:

• Employees indicate that they understand their role and responsibilities; and
• Systems are in place locally to respond to any individual concerns.

What should be happening:

• The organisation ensures that, as far as possible, the different requirements it places upon employees are compatible.
• The organisation provides information to enable employees to understand their role and responsibilities.
• The organisation ensures that, as far as possible, the requirements it places upon employees are clear.
• Systems are in place to enable employees to raise concerns about any uncertainties or conflicts they have in their role and responsibilities.

The standard is that:

• Employees indicate that the organisation engages them frequently when undergoing an organisational change; and
• Systems are in place locally to respond to any individual concerns.

What should be happening:

• The organisation provides employees with timely information to enable them to understand the reasons for proposed changes.
• The organisation ensures adequate employee consultation on changes and provides opportunities for employees to influence proposals.
• Employees are aware of the probable impact of any changes to their jobs. If necessary, employees are given training to support any changes in their jobs.
• Employees are aware of timetables for changes.
• Employees have access to relevant support during changes.

The aim of the Management Standards is to work with employees and their representatives to continuously improve performance in tackling work-related stress. Organisations are therefore encouraged to work towards aspirational targets, which the HSE believes are reasonable for each Standard. The targets are based on a national survey of psychosocial working conditions and the target for each Standard represents the level reported by the 20% of workers with the most favourable working conditions for each Standard in Britain. Organisations are not expected to meet all the standards but to work towards achieving them.

“Working for a healthier tomorrow”

In 2007 the National Director for Work and Health, Dame Carol Black conducted a comprehensive investigation of health and well being in Britain. In March 2008 she released a report “Working for a healthier tomorrow.” In this report Dame Black commented on the results of the investigation and current state of health and well being in the UK, and made recommendations for improvements.

Although many factors were considered in the report not least the role of primary care, the introduction of a fit for work note rather than a sick note and a fit for work service , there was a great deal on the role of organisations in improving the health of the nation.

In the report Dame Black suggests that “ the workplace can be a key setting for improving people's health and well being” and in Chapter 3 “Good Health is Good Business” she outlines the components of a good organisational well being programme. These are as follows:

• Needs to address employees needs in a specific organisation
• Requires true senior management buy in - not lip service
• Needs to be aligned with the business’ aims and goals and not an after thought
• Employees views should consulted about programmes and informed and updated of initiatives
• The organisation should measure the outcomes of the programmes and share the business case with directors share holders and other organisations

It was very reassuring to see that these recommendations totally reflect the ApP approach to health and well being.

In making these recommendations Dame Black recognises that there is a good business case for tackling health and well being at work but recognises that one of the biggest obstacles to this happening is the fact that the evidence base to support the business case is poorly understood by employers. She also recognises that there is a lack of appropriate information and advice. She therefore suggests that

1. A robust model should be developed for reporting on the benefits of employer investment in health and well being and this should be used to report on health and well being in the board room and company accounts
2. There should be a business led health and well being consultancy service offering tailored advice and support at a market rate.
3. There should be a major drive to promote understanding of the positive relationship between health and work among employers, healthcare professionals and the general public.

Of use here may be the findings of 2 reviews commissioned as part of this work.

1. Building the Case for Wellness by PricewaterhouseCoopers (PwC). This report considers the wider business case and specifically the economic case for employers to invest in wellness programmes for their staff. In this review, PwC found evidence in over 50 UK case studies that health and well being programs have a positive impact on intermediate and bottom line benefits.
2. Mental health and work by The Royal College of Psychiatrists. This looks at the evidence for addressing mental health and work.
   Finally, Dame Black states that all organisations must ensure compliance with H&S and other employment law, through good H&S management prevention and exposure to risk. The following information will therefore be useful for helping organisations do that for stress and common mental health problems

For more information, please don't hesitate to Contact Us.