Stressful business

Usually when we talk about health and safety prosecutions by the Health and Safety Executive (HSE) we think of dangerous workplaces and unsafe practices leading to accidents or fatalities. However, whilst safety quite rightly has been at the top of the agenda for many years, especially since the Health and Safety at Work Act 1974 (HSWA) came into force nearly 50 years ago, we have recently started to see a drive in the last couple of years to focus on the ‘health’ in health and safety. 

It will come as no surprise that reported cases of work-related stress, depression or anxiety have been found to be on a significant rise in recent years with evidence that 822,000 workers suffered with either new or long-standing cases in 2019/20 alone. This then led to a staggering 17.9 million working days lost, up from over 5 million from 2018/19. When put into percentage terms, stress accounted for 51% of all work-related ill health cases and 55% of all working days lost due to work-related ill health.

Therefore, it is notable that not only is stress the cause of the majority of days lost but, on average, an employee suffering from a stress-related illness takes longer off work and, as such, there is a growing necessity for addressing work-related stress in both a legal and commercial sense.

So what does 'work-related stress' entail?

The HSE define stress as “the adverse reaction people have to excessive pressures or other types of demand placed on them”. The current main cause of workers suffering from stress includes workload pressures, such as tight deadlines and a lack of managerial support. Bullying and changes at work are also being cited as other notable factors. Furthermore, it is interesting to see that the main industries recording cases of stress, depression and anxiety are public administration, human health, social work and education, which comes as a stark contrast to the industries which we would normally associate with higher cases of workplace accidents, namely construction and farming.

Understandably, as safety has been widely talked about, employers usually understand what they must do in terms of managing the physical risks associated with their activities. It is understood that risk assessments must be carried out, equipment should be inspected and maintained properly and that safe systems of work should be developed. However, many employers are usually less confident when it comes to managing stress and mental ill health related issues in the workplace. It is still unclear about the true extent of their duties and what they should do to implement a good system.

What can employers do?

The starting point will always be that employers have a duty under s.2 of HSWA towards their employees to ensure their health, safety and welfare in so far as is reasonably practicable.

Therefore, there is a duty to take reasonable steps to seek to ensure that you are managing workplace stress and the mental health of your employees. However, what is considered ‘reasonably practicable’ will vary from employer to employer. Consideration must be had to the time, trouble, and expense of putting in place control measures, as well as bespoke attention to the individual risk at hand in any given situation.

HSE approach to investigations

Thus far there have been no prosecutions in the UK concerning employers who have failed to manage stress and mental health within the workplace. However, the potential costs to an employer of getting their approach to work-related stress wrong could be both reputational and financial. 

In France, a telecoms company was prosecuted alongside a number of its executives who were given custodial sentences after 39 employees had either taken their own lives or attempted to do so. This happened during a restructuring of the company that affected thousands of employees. It was said to be the first time that the French courts recognised ‘institutional harassment’. The newly privatised company was trying to cut 22,000 jobs and retrain 10,000 workers. The Unions blamed the suicides on tough management methods.

To help tackle this ever-growing issue, a great deal of guidance has been made available on the HSE’s website including employee questionnaires, workbooks, competency tools and even an example stress policy.

Also, the HSE have announced the circumstances in which they would ‘consider investigating concerns’ about work-related stress. The factors the HSE will consider are: whether there is evidence that a number of staff are currently experiencing work-related stress or stress-related ill health, (i.e. it is not an individual case). That said, whilst the HSE is not the appropriate body to investigate concerns solely related to individual cases of bullying or harassment, they may consider this if there is evidence of a wider organisational failing.

As such, in conclusion, it can be seen as reasonably foreseeable that prosecutions in respect of failing to manage stress and work related ill health are on their way, especially post pandemic. Therefore, in order to minimise this risk, if employers are put on notice of an issue in this regard, an appropriate and timely response should be made – or it may lead to a HSE investigation.