New standards set for work place stress

The Health and Safety Executive ["HSE"], in conjunction with its' campaign against work related stress has now launched a new stress pilot scheme on it's stress website. The new pilot scheme attempts to quantify expected levels of stress for employees and set acceptable percentages for this.

The website can be accessed here.

All employers owe a legal duty of care to their employees. Injury to mental health is treated in the same way as injury to physical health. Therefore, although there is no specific statute or other regulation controlling stress levels permitted in the workplace, broad principles apply in the same way as they would to any personal injury claim.

Further, any breach of an employer's statutory or regulatory negligence duties towards its employees giving rise to criminal liability may also be relied upon by a civil claimant as evidence of an employer's breach of duty in a negligence action and indeed in support of a claim for constructive dismissal.

Stress claims have been notoriously difficult to prove, firstly, because of the empherial nature of the condition, knowledge and forseeability of injury are difficult to establish and secondly because of the difficulty in proving the cause of the stress itself.

The HSE's code of practice and guidance are not legally binding however they do provide a benchmark as to what standard of care is required of an employer to his employees and also deals with forseeability of stress in individual employees.

The "New Approach" from the HSE on stress provides pilot management standards on:

• evaluation
• consultation
• intervention
• review of stress in the workplace

In relation to six key causes of stress or "stressors":

• Demands
• Control
• Support
• Relationships
• Roles
• Changes

Although the pilot scheme is at present still in its draft stage it sets out a broad skeleton of a new code of practice. Should this pilot scheme, which completes in 2004, be taken forward on a more formal basis, there is likely to be the implication that where no action is taken by an employer on stress, they have fallen short of their duty to take reasonably practical measures to ensure the health, safety and welfare of employees and others sharing the workplace and to create safe and healthy working systems (HSWA 1974). Equally, to undertake risk assessments of stress and put in place appropriate preventative and protective measures to keep the employees safe from harm (MHSW 1999).

Reasonable Standard

On the basis of research commissioned by the HSE on the scale of occupational stress it has been found that as many as one in five employees reported that they were either "very" or "extremely" stressed by their work. For the pilot scheme the HSE has therefore taken that 20% of employees are stressed by their work.

The standards currently set by the HSE in relation to each "stressor" is as follows:

1. Demands – "At least" 85% of employees indicate that they are able to cope with the demands of work;
2. Control – "At least" 85% of employees indicate that they are able to have a say about the way they work;
3. Support – "At least" 85% indicate that they receive adequate information from colleagues and superiors;
4. Relationships –"At least" 65% indicate that they are not subjected to unacceptable behaviour at work;
5. Role – "At least" 65% of employees indicate that the understand their role and responsibilities;
6. Change – "At least" 65% of employees indicate that the organisation engages with them frequently when undergoing an organisational change.

There is the additional broad requirement to this that systems are in place locally to respond to any individual concerns.

Methodology

HSE's methodology consists of 'first pass' and 'second pass' filter tools (questionnaires) and supporting materials, which are directly related to the management standards to highlight areas which appear to be a source of stress for a significant number of employees, the next step is to consult with your employees to find out what the problem is, which causes the stress.

The action to be taken next will depend on the outcome of the analysis of the first pass filter tool, unless all standards are being achieved the HSE suggests employers progress to the second pass filter tool to identify what elements of the standard are causing stress. If the majority of participants feel the organisation is not achieving a standard investigation of these sources of stress should have highest priority.

Once the filter tools have been used to highlight areas which appear to be a source of stress for a significant number of employees, the next step is to consult with the employees to find out what the problem is and then to "intervene".

Specific interventions have not been stated but rather the HSE refers to focus groups, explanations of "business reality" to employees and support and acknowledgement of employees. HSE is currently developing more specific guidance on and suggestions for interventions that can impact upon the six stressors. The HSE has published a pamphlet with guidelines for removing causes of workplace stress. You can access the pamphlet online or from HSE books PO Box 1999, Sudbury, Suffolk, CO10 2WA, tel: 01787-881165 or fax: 01787-313995.

The final review stage is stated to be essential by the HSE in evaluating changes made and providing feed back to employees. The HSE points out that any changes in the organisation may introduce new stressors and recommends in this instance distributing the first pass filter tool again to highlight any emerging stressors quickly.

Individuals

The first and second pass filter tools are intended to highlight sources of stress for the majority of employees within an organisation and the interventions will be aimed at how to reduce these sources of stress (for the majority of people).

However, the processes involved in the pilot may highlight to small groups or individuals that they are experiencing stressors that the majority of other groups or individuals are not. The interventions used may not address the sources of stress for these small groups or individuals. The HSE therefore state that it is essential that employers develop ways for employees to raise their concerns.

Examples put forward by the HSE are:

• creating an environment where employees are encouraged to consult their line manager or a person in their line management chain
• encouraging employees to speak to trade union representatives, health and safety representatives, human resources personnel, or occupational health team if available
• encouraging employees to seek advice from occupational health advisors at general practitioners' surgeries
• providing employee assistance counsellors

Summary

"Stress" has become the new buzzword in personal injury claims but it should be remembered by claimants that for damage to be recoverable an actual psychological injury or psychological response resulting in injury must be proved other than simply day to day anxieties which would be viewed as part of the exigencies of every day life. It will ordinarily be necessary to show that the employer had been made aware that the claimant was suffering stress and had then failed to take any action to ameliorate the situation. However, when questioned people are unlikely to differentiate between stress at a level which may damage them psychologically and a particularly busy life, hence the 20% finding.

Placing "quotas" on an emotional state of mind is using a formal calculus for a highly variable and unpredictable subject. On the basis however that 20% of workers generally are stressed, the standards set by the HSE of "at least" 85% of employees expressing satisfaction on three individual stressors would require companies to alleviate stress over and above the norm in the general population.

Nevertheless, it should be emphasised that this is a pilot project only. The main points which are likely to be taken forward in the future are the requirements to consult regularly with employees, keep them updated and act on concerns raised. The propositions for "interventions" put forward by the HSE should be watched and adopted into any stress policy in order that they may be used to provide a defence to any stress claims.

For further information, please contact:

Anthony Fincham
CMS Cameron McKenna
+44(0)207 367 2783
[email protected]

Jessica Burt
CMS Cameron McKenna
+44(0)207 367 3589
[email protected]