A new avenue for workplace safety

According to HSE statistics, in 2023 – 2024, of the 1.7 million people suffering from a work-related illness, 776,000 were experiencing workplace stress. Figures have been climbing in recent years and together with increasing awareness and acceptance of the importance of mental health it is front and centre of many employer’s agendas.

That being said, the recent Drager report (which surveyed 1,000 employees including managers) highlights important considerations for employers regarding psychological safety. Of those surveyed for the report, 65% believe that a lack of psychological safety can contribute to physical safety risks in the workplace. This is an interesting point, but perhaps not one that is regularly raised in the current claims landscape, which tends to reflect physical injury claims as the product of practical breaches of duty (for example, a lack of training). With this being reported as a real-world concern by employees however, we should watch this space.

In terms of specific stressors, the report identifies three key issues contributing to psychological safety, namely:

• High workload or time pressure 48%
• Stresses in other areas of life, such as financial issues 42%
• Lack of supportive leadership 30%

The government is seeking to address work stress in general terms via the proposed Employment Rights Bill which is designed to enhance the rights of workers via:

• Day one protection from Unfair Dismissal (in place of the protection only arising after 2 years as is the position currently);
• Abolition of exploitative zero hour contracts; 
• Day 1 paternity leave rights;
• New protections against dismissal for pregnant women.

According to the government it is anticipated that these measures will support improvements in psychological wellbeing in the workplace with specific reference to the time lost to stress absences in their impact reports. 

Other aspects of the Employment Rights Bill, building on separate, recent legal changes, seek to address workplace harassment, with positive obligations on employers to take all reasonable steps to prevent harassment and to prevent harassment of their employees by third parties. As a side point, the measures regarding third party harassment could feasibly give rise to interesting claims that cut across traditional negligence principles, which are based on risks that are foreseeable (and taking reasonable steps to prevent those).  In some cases, where an employee is harassed by a third party, an employer may not have the ability to foresee or control all relevant risks. We expect these issues to play out in the employment tribunal arena but wonder if the legislation could ‘cross-pollinate’ to claims in the county court.

Taking a step back however, when considering the realities of what actually contributes to workplace stress (workload, time pressure, life stressors and unsupportive leadership) it does not seem that the Employment Rights Bill tackles the issues giving rise to work stress head on. The Drager report suggests that employee preference (80% of those surveyed) was that wellbeing and mental health should be managed together. 

An approach in such terms has been adopted by Australia with legislation introduced recently that specifically seeks to address psychosocial workplace hazards which include job demands, lack of control, lack of support, bullying/harassment, poor change management and stressors arising from remote working. Under the provisions employers are expected to:

• Identify and assess psychosocial risks within the workplace;
• Implement control measures (to eliminate or minimise risks);
• Monitor and review the measures; and
• Consult with workers regarding psychosocial risks and incorporate feedback into procedures.

The spirit of these rules is arguably captured by HSE guidance on workplace stress and the current health and safety legislation in the UK. It is our experience however, that stress risk assessments are often only prepared after an employee has presented with stress (either as a result of work or personal issues) and interventions vary across organisations. 

The Drager report notes that 63% of respondents felt that too much responsibility for workplace safety and wellbeing was placed on employees. Perhaps that is borne of the well-intentioned initiatives adopted by companies in recent years to include ‘yoga at lunch’ type offers to staff. It is clear, in our view, that there is employee demand for more to address wellbeing and mental health concerns in the workplace. Whilst the Employment Rights Bill takes some tentative steps towards that, we are arguably leagues away from a targeted approach such as that in Australia. We await with interest the developments in the legal landscape in the coming years in the face of what we expect to be a continuing trend of workplace stress absence and claims.