Lucinda Bromfield is an employment solicitor at Bevans. She has experience of advising employers on all areas of employment law, a qualified mediator and regularly uses alternative dispute resolution to get the best outcome for her clients.
Stress related claims are becoming more common and ‘stress’ is often given as a reason for absence from work. Workplace stress can result from many things, the two most common are workplace disputes and overwork.
Lucinda Bromfield of Bevans Solicitors, provides key insights into how to reduce and tackle stress in the workplace; offering a flavour of the analysis that will be given at September’s Stress Prevention and Mental Wellbeing Forum by Guy Hollebon, Bevans’ Head of Employment.
Simple steps you can take to minimize the risks
While you cannot prevent stress related absence or avoid the danger of stress related claims, there are some simple steps you can take to minimize the risks.
To succeed in a ‘stress at work’ claim, an employee must show three things;
1. that he or she is suffering from a diagnosed illness (such as clinical depression); and
2. that you, as the employer, should have foreseen that the employee’s illness was going to be caused or worsened by his or her work ; and
3. that you did not take reasonable steps to prevent this happening.
You have a duty of care to take reasonable steps to minimize the risks of illness/injury to your employees. In deciding what are ‘reasonable steps’ you can take into account the resources of your organization and the demands that it faces. You can consider the effect that any steps (e.g. such as reducing the affected employee’s workload) would have on your other employees and the costs of any action you might take.
Some employers provide confidential advice services and the Court of Appeal has said than an employer who offers such a service is unlikely to be found in breach of its duty of care to its employees. However, while such an advice line is useful in showing that you were taking reasonable steps, it isn’t enough by itself to fulfill your duty of care to an employee who you know is having difficulties.
Taking complaints seriously: the first step in your defence
It is key that managers are alive to signs of stress in their employees and that they do not ignore cries for help. It is vital you do not assume that everyone has the same tolerance levels. It is easy to brush off employee complaints that you don’t think are valid, particularly if you feel that you are more stressed or working harder than the employee who is complaining, but it is very important that you don’t do this. Taking complaints seriously is the first step in your defence to a claim, should there be one.
If you do not do this and the employee’s condition worsens, then he or she may have a further claim against your organization. Alternatively, if his or her condition is not bad enough for a personal injury claim, he or she might decide to resign and claim constructive unfair dismissal on the basis that you caused the condition and did not take his or her complaints seriously.
If an employee has been absent because of stress, you will need to consider this when he or she returns to the workplace. At the very least you should make sympathetic enquires as to how they are now and give consideration to altering their working conditions to alleviate stress as much as possible.
Communication is key
An employer is usually entitled to assume that an employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability. In addition, an employer is usually entitled to take what an employee tells him at face value, unless he has good reason to think to the contrary. If you are concerned about an employee’s mental health and don’t believe what the employee is telling you it is sensible to have an informal chat with him or her.
If you are still not satisfied, then it may be sensible to get medical advice (with the employee’s consent).
If the only option for a stressed employee is to continue to work in their current role or to be dismissed or demoted, if the employee chooses to stay in their role then an employer will usually not be criticized for allowing him or her to do so. However, the various possibilities should have been explored with the employee. It is not enough for an employer to say ‘I assumed he’d want to stay in his role’ – you have to ask! It is also important to discuss alternatives with the employee as he or she may have a creative solution you had not considered.
Remember, any informal chat should be tactful and should never include any suggestion that the employee can’t do his or her job or should ‘buck their ideas up’. If you think that an employee’s performance is being adversely affected by stress you can address this with them, but if you feel the situation is so serious that disciplinary measures may need to be taken it is important that you comply with the ACAS code on disciplinary and grievance procedures.
Most employees will go through periods where they require additional support to perform their roles well, either because of personal or work stress. The key is to be alive to these issues and to keep communicating with the employee in order to find the best way forward for him or her and for your organization.
If you feel that you’d like to learn more about how to deliver a healthier workforce to improve your bottom line, the Health at Work Summit is happening in June and will consider such topics as:
- Combating workplace stress
- Understanding the ’fit note’ and make it work for you
- Determining the link between leadership, wellbeing and engagement
- Preventing injury and musculoskeletal disorders
- Taking a pro-active approach to absence management
- Building a culture of safe working
- Understanding the legal issues surrounding sick pay, annual leave and redundancy or dismissal
- Tackling the stigma of mental ill health
Combat workplace stressUnderstand the ’fit note’ and make it work for youDetermine the link between leadership, wellbeing and engagementPrevent injury and musculoskeletal disordersTake a pro-active approach to absence managementBuild a culture of safe workingUnderstand the legal issues surrounding sick pay, annual leave and redundancy or dismissalTackle the stigma of mental ill health.
Lucinda Bromfield, Employment Specialist, Bevans Solicitors
Lucinda Bromfield is an employment specialist at Bevans, advising on all aspects of employment law and alternative dispute resolution. Before becoming a solicitor she had experience of working in compliance and HR for large private and public sector organizations. She is a qualified mediator and has a particular interest in the role of effective communication and HR in building sustainable, profitable businesses.
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