Stress claims - how to prevent them
You can hardly pick up a newspaper today without reading an article on somebody suffering from stress.
You can hardly pick up a newspaper today without reading an article on somebody suffering from stress. The economic downturn has seen more and more people feeling stressed and an increasing number of compensation claims lodged as individuals turn to the courts for a cash injection; a melting pot that has seen more compensation claims for stress than ever before.
In order to avoid going through the painful process of a stress claim, employers must take precautionary steps to avoid a claim being brought in the first place and to provide a strong defence if it is brought nevertheless. The first point to note is that the law does not recognise stress as an injury. If a civil claim in the County Court is to be successful you need to prove you have a psychiatric injury. This is the first barrier for an employee to get over, but employees can still obtain compensation for injury to feelings through an employment tribunal claim or a claim under the Protection from Harassment Act 1997.
As such, if a employer turns a blind eye to stress they may well find themselves appearing in their local County Court or employment tribunal. The business could also be subject to an Improvement Notice from the HSE if the owner fails to undertake a suitable and sufficient risk assessment for work related stress. It is therefore important that employers put a stress risk assessment in place alongside company policies on bullying and harassment. As with anything, it is no good just having the policies if employees have not seen them or read them and it is best practice if the employer can prove that their employees have done so.
Employees need to be told what behaviours are considered as constituting harassment and what disciplinary action they may face if they are found to have harassed a fellow employee. It is helpful if staff are consulted when a employer formulates the company’s bullying and harassment policies as they will get more buy in and it will be harder for employees to plead ignorance of the policies. For example, under the Protection from Harassment Act 1997 there is no clear definition of what amounts to harassment. If staff play a role in drawing up a list of behaviours that amount to harassment, they will be less likely to then carry out acts they know amount to harassment.
Once employers have their policies drawn up, they need to ensure that they are followed. If one employee bullies or harasses another then this should not be swept under the carpet; employers must be strict in following their disciplinary and grievance policies. Although this can be time consuming, it is far better to spend time following the correct procedures & keeping detailed notes of any grievances raised than to leave the business wide open to a successful compensation claim.
Besides harassment, the other main cause of stress-related absence is overwork. Whilst the Working Time Directive sets out 48 hours per week as the maximum average amount an employee can work, this is not a magic figure. Successful compensation claims have been made by employees working part time whilst other employees working over 48 hours have been unsuccessful with their claims. It is always a good idea to have records showing the hours worked by individual employees. If employers don’t do so then the issue is left open to argument and from my experience, it is argued at length.
It is sensible to have regular meetings with your employees and a documented appraisal system is even better. That gives both the employer and employee an opportunity to raise issues including matters such as excessive hours and/or complaints of harassment.
With overwork stress claims in the County Court, an employee will succeed if they can show that not only were they overworked but also that their employer knew or ought to have known that they were developing a psychiatric injury. It is therefore important to be alive to complaints about how work is affecting an employee’s health. This is especially the case if the employee has time off and a sick note/fit note comes in indicating that the absence was due to work related stress.
Most successful stress claims arise out of a failure to properly manage an employee’s return to work. Where possible, medical advice should be obtained before the employee returns to work and if a phased return is recommended, then that should be followed. Too often an employee’s immediate boss ignores the carefully formulated plan and piles on the work, causing the employee to go off once more.
When it comes to the financial cost of stress claims, Employers Liability Insurance will cover a County Court claim for compensation arising out of an overwork or a harassment claim. However, the cover is given on the condition that the insurance company is informed of the claim promptly. With Employment Tribunal claims, it is generally the employer’s money that is at risk. If part of the claim relates to injury then it would be sensible to ask your Employers Liability insurer if there is cover for this under your particular Employers Liability Insurance policy.
The key for employers in combating stress claims is to regard psychiatric injuries in the same fashion as physical injuries such as a bad back. If relevant documentation is in place and employees have been educated, costly absences from work will be minimised and expensive compensation claims avoided.
Roddy MacLeod is a partner specialising in stress and harassment claims at law firm Weightmans LLP.