STRESS AT WORK

The Health and Safety Executive defines stress as "the adverse reaction people have to excessive pressures or other types of demand placed on them", drawing a clear distinction between stress and pressure that can act as a motivating factor.

In its view, stress should be treated like any other health hazard, leaving employers open to the same liabilities as if there were physical defects in the workplace.

What does the law say?

The law imposes a number of duties on you to control risks to your workforce from work-related stress. These include:

• The Health and Safety at Work Act 1974 which requires you to ensure that, as far as is reasonably practicable, your workplaces are safe and healthy
• The Management of Health and Safety at Work Regulations 1999 (MHSWR) which requires you to assess the level of risk in the workplace and base all measures for controlling risk on this assessment
• The Disability Discrimination Act 1995 which imposes an obligation on you to make reasonable adjustments to the workplace, such as reducing an employee’s workload or pressures on an employee who is under stress.

You also have a duty under the common law to take reasonable care to ensure the health and safety of your employees. Since the 1995 landmark case of Walker v Northumberland County Council, your legal duty of care covers psychiatric as well as physical damage, including work-related stress.

Then in 2004, the House of Lords in its first ruling on workplace stress (Barber v Somerset County Council) put the onus very firmly on employers to take responsibility for the health and well-being of their staff.

In this case, their Lordships said that the council was in breach of its duty of care to Mr Barber by failing to make inquiries about his health. In other words, that the Council had failed in its duty to be proactive and take the initiative, rather than adopt a "wait-and-see" policy.

The Court of Appeal then said in 2002 in Sutherland v Hatton that employers who offer confidential counselling services are likely to have a complete defence to a stress-related claim (although just having a counseling service will not act as a panacea in all cases). It also said that if workers are under stress, there is an onus on them to complain about it and bring it to the attention of their employer.

Another Court of Appeal has recently decided in Dickens v O2 plc that the company was liable for stress induced personal injury suffered by one of its employees. It commented that if an employee had previously complained about stress and had told her line manager she wasn’t sure how long she could keep going, then it was reasonably foreseeable that she would become ill. The fact that the company had suggested she have counselling was not enough to avoid liability.

If one of your employees suffers from stress related ill-health and the court decides that you should have been able to prevent it, then you could be found to be negligent. There is no limit to the compensation your employee could get from this.

If you dismiss an employee because they have work-related stress, then an employment tribunal will treat this as unfair dismissal unless you can show that you acted reasonably.

Can employees claim for workplace harassment?

Yes, in Majrowski v Guy’s and St Thomas’s NHS Trust, the House of Lords confirmed that employers can be liable for workplace harassment of one employee by another under the Protection from Harassment Act 1997.

However, the good news for employers is that the Court of Appeal qualified that liability in Conn v City of Sunderland by stating that employees would only succeed if they could show that the harassment involved unacceptable (if not criminal) behaviour on at least two occasions.

What can you do to reduce potential stress factors?

Acas, the government’s advisory and conciliation body, has identified a number of causes of stress and made suggestions as to what you can do to reduce them. For instance

• If your employees become overloaded and cannot cope with their workload, you should consider reducing it and also offer additional training and/or more flexible hours
• If your employees complain that they feel they have no control over their work, try to involve them more by consulting them about current processes and review their performance to identify strengths and weaknesses
• If your employees feel they cannot talk to managers about issues that are troubling them, identity those managers and offer them training about how to be more supportive
• If there are relationship problems between employees leading to accusations of bullying, you must ensure you have clear procedures for handling misconduct and poor performance as well as clear grievance procedures. These must make clear that bullying and harassment will not be tolerated
• If employees are anxious about what is expected of them at work, provide them with clear job descriptions and ensure that they understand the link between individual objectives and organisational goals
• If change is leading to uncertainty and insecurity for employees, then consult more with them so that they feel they have a real input and that they are working with you to solve problems.

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WHISTLE WHILE YOU WORK

Workers who want to blow the whistle to outside bodies must do so in good faith, reasonably believing the allegation to be true. In Muchesa v Central and Cecil Housing Care Support, the Employment Appeal Tribunal (EAT) said tribunals should consider whether the complaints were true and whether the whistleblower genuinely believed they were.

What happened?

Miss Muchesa worked at a nursing home for patients with dementia. In early 2005 she claimed to have made a number of complaints about standards in the home to two different managers, but the managers denied she had done so.

On 24 May 2005 the Council for Social Care Inspection (CSCI) made an unannounced visit, but reported no major concerns. Later that month, Miss Muchesa complained to the daughter of a resident about standards in the home. She reported these to the GP who found no signs of neglect. Miss Muchesa also rang the police and social services to make similar complaints.

Miss Muchesa’s employer then suspended her for misconduct on 31 May 2005 and dismissed her in April 2006. During the time of her suspension she contacted CSCI to make complaints about the care of residents. It carried out another inspection, but again found no basis for her complaints.

Miss Muchesa claimed automatic unfair dismissal for making a protected disclosure (among other things) under section 103A of the Employment Rights Act 1996. The tribunal decided that Miss Muchesa had not been unfairly dismissed under section 103A because the disclosures on which she relied were not made in good faith and she did not "reasonably believe them to be true".

And the EAT agreed, saying that she had not made the disclosures to the various external recipients in good faith and she did not reasonably believe the information disclosed to be "substantially true".

It also said in relation to the issue of reasonable belief that the tribunal had been entitled to consider whether the complaints were true or not, particularly as she claimed to have direct personal knowledge of them.

It was also entitled to ask itself whether she believed in "the truth of her complaints". They decided that she had not and had complained about things that had not happened "for an ulterior motive of her own not connected with the care of the residents."

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ADJUSTING TO DISMISSAL

The statutory dispute resolution regulations state that employees do not have to lodge a grievance with their employer if they have been dismissed or are about to be dismissed. In Maley v Royal Mail Group Ltd, the Employment Appeal Tribunal (EAT) said that they do not have to lodge a grievance if they have been dismissed following a failure to make reasonable adjustments under the 1995 Disability Discrimination Act (DDA).

What happened?

Mr Maley was dismissed from Royal Mail on 15 October 2007 following a number of long periods off work. He said the reason for his absences was because of chronic dermatitis. Royal Mail was advised to provide him with a cotton uniform, but did not do so.

On 25 October Mr Maley lodged a tribunal claim for unfair dismissal, but did not fill in the section on the form relating to discrimination claims. He did, however, tick the box indicating that he had a disability.

In April 2008, he tried to amend the form by adding that he was disabled "within the relevant legal definition" and that Royal Mail’s "failure to make reasonable adjustments resulted in my dismissal". The tribunal judge refused to allow his claim to be heard because he had not lodged a written grievance prior to submitting his form to the tribunal.

The EAT overturned the tribunal’s decision, pointing out that regulation 6.5 states that "neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee".

It said it was clear that Mr Maley was not complaining about the fact that his employer had failed to make reasonable adjustments (by not providing him with a cotton uniform). Instead, his complaint was about the fact that, as a result of that failure, he had been dismissed.

Referring to two other EAT cases - Lawrence v HM Prison Service and Otaiku v Rotherham Primary Care NHS Trust - the EAT said it had to construe regulation 6(5) broadly. The essential point was "that where the complaint is about the dismissal or matters pertaining to that dismissal, including the reason why it is said to be unfair or unlawful, these issues can be aired and considered through the dismissal process. That is, in my view, plainly applicable in this case".

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IN BRIEF

The European Parliament has recently approved the proposal for a directive on Temporary Agency Work. It voted to support the Council's position - adopted in June 2008 - without amendments so it can now become law.

The European Commission estimates that over three million temporary agency workers currently working across the EU will benefit from better protection of their working conditions.

The Temporary Agency Workers directive will ensure:

• Equal treatment from day one for temporary agency workers compared to permanent workers in terms of basic working and employment conditions (including pay, holidays, working time, rest periods and maternity leave) unless social partners agree otherwise (as in the UK, which agreed 12 weeks earlier in the year)
• Equal access to collective facilities (such as canteens, child care facilities, or transport services)
• Better access for agency workers to training both when working on an assignment, and in between assignments.

Following the approval of the European Parliament, EU countries are now required to incorporate the provisions of the Directive in their national law. It will then come into effect within three years. In the UK the government anticipates that it will become law in either April or October 2010.

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