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Thursday 17 March 2011

Thursday 17 March 2011. Oliver McCann Employment Partner Taylors Solicitors. Stress at Work – the Legal Slant!. 1. Statistics. 13.5 million 31 days £3.7 billion (society) 38% - work cause of stress (51% money) 35% employers say stress cause for absence (2010) Bullying and harassment.

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Thursday 17 March 2011

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  1. Thursday 17 March 2011

  2. Oliver McCann Employment Partner Taylors Solicitors

  3. Stress at Work – the Legal Slant!

  4. 1. Statistics • 13.5 million • 31 days • £3.7 billion (society) • 38% - work cause of stress (51% money) • 35% employers say stress cause for absence (2010) • Bullying and harassment

  5. 2. What is Stress? • ACAS/HSE: “An adverse reaction to excessive pressure or demands” • Oxford dictionary: “a state of mental or emotional strain or tension resulting from adverse or demanding circumstances” • Stress is not in fact an illness, but can trigger other illnesses, eg. heart disease, anxiety, depression, etc

  6. 3. Effects on the Business • Poor productivity/performance • Increased absence levels • Increased turnover • Temporary cover/overtime for others – increased costs • Demotivation for others • Litigation

  7. 4. Stress is a Legal Health & Safety Issue • HSWA 1974 • Management of Health and Safety at Work Regulations 1999 • Risk assessments for health hazards including stress • Take action to control identified risks • Management standards – key factors considered essential to reduce the causes of stress [cont…]

  8. 5. Stress is a Legal Health & Safety Issue [cont …] • HSE prosecutions • Implied contractual terms to provide safe system of work/workplace (Johnstone v. Bloomsbury Health Authority 1991) • Implied duty to provide reasonable support (Wigan BC v. Davies 1979) • Common law duty of care not to cause psychiatric harm (Walker v. Northumberland County Council)

  9. 6. Stressors – Management Standards • Demands – workload, work pattern and work environment • Control – how much influence a person has on the way they work • Support – encouragement, research and guidance/development provided by organisation and line management • Roles – clearly defined for both individual and organisation • Relationships – managing within the workplace, reducing conflict, promoting positive working • Changes – management and communication “A benchmark for claims?”

  10. 7. What are the Potential Legal Claims? • Stress at work – PI claim – negligence and breach of statutory duty • Breach of contract • Constructive dismissal • Unfair dismissal, if dismissed on grounds of capability • Discrimination claims (harassment) – Equality Act 2010 • Protection from Harassment Act 1997 • Disability discrimination (keeping at work)

  11. 8. Discrimination • Harassment – “unwanted conduct related to a protected characteristic” (s26 EA 2010) • Violates dignity, creates an intimidating, hostile, degrading, humiliating or offensive environment • Is it reasonable to conclude that conduct has had the effect of creating an environment as above? Perception of victim is relevant! (s26(4)) • Vicariously liable but statutory defence (s109 EA 2010) • Unlimited compensation – injury to feelings and PI where psychiatric injury

  12. 9. Constructive Unfair Dismissal • Burden on employee to prove a fundamental breach • Must resign in response • Implied terms – safe system of work and reasonable support, trust and confidence • Compensation limit £68,400 – basic award £12,000 • 12 months continuous service unless exceptions to rule

  13. 10. PI Claims – Employers Liability • Duty arises to take steps to prevent stress where signs (foreseeable) that an employee may suffer psychiatric illness from stressors at work are plain enough that any reasonable employer would realise it should act (Barber v. Somerset CC 2004 HL) • 16 guidelines (Sutherland v. Hatton 2002 CA) [cont …]

  14. 11. PI Claims – Employers Liability [cont …] • Foreseeable – absence levels, sick notes, workload, nature of job, extent of work, level of support (under-staffing) • Recognised medical condition • No onus on employee to complain – duty on employer!

  15. 12. Steps to Take to Discharge Liability • Counselling service (Guideline 11 Hatton) but Daw v. Intel Corporation UK 2007 CA • Redistribution of work • Sabbatical • Transfer to other department • Reduced working hours • Extra support

  16. 13. Breach of Contract • Manner of dismissal does not sound in damages – Johnson v. Unisys Ltd 2003 • However, where guilty of an antecedent breach of contract (including breach of trust and confidence and other implied terms) before dismissal, then claim can be made for psychiatric damage suffered (Gogay v. Hertfordshire CC 2000)

  17. 14. Protection from Harassment • 1997 Act – s1: “A person must not pursue a course of conduct which amounts to (and they ought to know amounts to) harassment of another” • Cause of conduct – at least two occasions • Majrowski v. Guys & St Thomas NHS Trust 2006 HL – vicarious liability for actions of its employees where close connection between harasser’s conduct and nature of his duties • Green v. DB Group Services - £852,000 liability under Act [cont …]

  18. 15. Protection from Harassment [cont …] • No definition but included under Act – wide interpretation (unjustified bills and threatening letters – Ferguson v. British Gas 2009) • Veakins v. Kier Islington Ltd 2009 CA – singling out employee without reason and making her life difficult until she had a breakdown • Only bring a civil claim if conduct would result in criminal liability under the Act (Conn v. Sunderland CC 2007)

  19. 16. Benefits of Tackling Stress • Reduced exposure to claims • Quality of working life • Improved image/reputation – future recruits, customers, tenders • Easier management of future change • Better employee relations and commitment • Reduced staff turnover • Reduced absence

  20. 17. How can Stress be Managed in the Workplace? • Effective inductions, job descriptions (purpose, key tasks, scope) • Effective communication channels and employee engagement – appraisals/return to work interviews/work plans/team meetings/committees/works councils/consultation • Job design – keep under review/manage changes • Support – identify training needs, supervision – ongoing dialogue • Recruit properly – avoid mismatches, competency! • Stress surveys – annual? [cont …]

  21. 18. How can Stress be Managed in the Workplace [cont ...] • Flexible working – see benefits • Training line managers to identify stressors and signs of stress • Counselling services (Employee Assist Programmes) and health checks • Clear policies and procedures and implementation – grievances, discipline, unacceptable behaviour, stress policy (consultation with staff/TUs) • Creating a healthy and friendly working environment • Monitor rest breaks/holidays

  22. 19. Flexible Working – Work/Life Balance! • Maximises available labour • Increases productivity • Reduces absenteeism/stress • Increases loyalty and commitment • Increases flexibility to meet change • Improves access to those from under-represented groups with skills

  23. 20. Managing Absence Caused by Stress • Absence due to stress/anxiety/depression – needs sensitive care and handling • Maintain regular contact throughout • Where caused by work – go the extra mile (Royal Bank v. McAdie 2008) • Sick pay? (O’Hanlon v. HMRC 2007) • Timing of long term absence procedure [cont …]

  24. 21. Managing Absence Caused by Stress [cont …] • Timing of health assessments • Quality of health advice – OH or GP? • Consultation with ill employee • Return to work interviews – critical • Alternative employment/phased returns – adjustments! • Be mindful of disability issues!

  25. 22. Disability • Equality Act 2010 • Definition – few changes to old definition • Physical or mental impairment, substantial and long term effect on ability to carry out day to day activities • Dropped requirement that must affect one or more specified capacities • Long term – 12 months or likely to be 12 months • Recurring/fluctuating – continuing – less obvious

  26. 23. Disability Discrimination • Direct • Indirect • Discrimination arising from a disability • Reasonable adjustments • Objective justification

  27. Taylors Solicitors Employment Team Oliver McCann – Elaine Hurn Rawlings HouseExchange StreetBLACKBURNBB1 7JN Ninth Floor 80 Mosley Street MANCHESTER M2 3FX Tel: 0844 8000 263 www.taylors.com

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