This is a detailed guide to managing stress at work for Managers and HR specialists.
It covers the law relating to stress that you need to know and practical tips on how you and your company can manage employee stress, minimizing it’s effect on the business, being protected from claims, and ensuring you take the appropriate steps to help your employee.
What is stress?
The Health & Safety Executive (HSE) defines stress as the “adverse reaction people have to excessive pressures or other types of demand placed on them”.
There is sometimes confusion between pressure and stress; it is healthy for staff to have challenges to meet. Too much pressure can, however, be harmful to health. In addition, the fear, frustration or anger that may be produced by an unhappy relationship with a manager, colleague or client or in an unsuitable job can result in long-term or chronic stress.
Lives outside work can lead to stress or they can compound pressure at work and result in stress. It can be difficult to identify staff who are under stress, particularly when an employer might not be aware of the issues external to the workplace are involved.
The signs of stress:
Positive mental health is rarely an absolute state. One may feel in good mental health generally but also suffer stress or anxiety from time to time.
The following list, though not an exhaustive, can be useful indicators that all is not well with an employee. A prompt to take notice and take action.
Changes in work performance and productivity levels
Declining or inconsistent performance
Loss of control over work
Loss of motivation or commitment
Lapses in memory
Increased time spent at work
Lack of holiday planning/usage
Over-reaction to problems
Arriving late to work
Reduced social contact
Criticism of others
Bullying or harassment
Poor colleague/employee relations
Acas has produced a booklet on promoting positive mental health at work.
HR guide to Managing Stress checklist
An employer who takes action to manage the effects of stress on his / her employees will get the best from those employees. Employers not doing so run an increased risk of work stress-related claims. You should consider, and be seen to consider:
- Carrying out a stress audit. Ask employees to list their concerns in respect of stress. Do this as a matter of course in all appraisals to pre-empt stress issues.
- Using return to work interviews after sickness absence, performance appraisals and employee surveys to identify any underlying stress-related reason for absence or poor performance. Training managers to recognise situations likely to cause stress and to identify the symptoms of stress and how to manage stress.
- Designing a stress policy. The policy should make it clear that this is an issue that the employer takes seriously and give employees guidance as to how to deal with the effects of stress, and how to raise these concerns within the workplace.
- Consulting employees, employee representatives or unions on organisational changes. Avoiding placing unreasonable demands on employees by prioritising workloads and appropriate delegation of duties. Providing adequate training. Providing support through the employee assistance programme or occupational health service and/or providing independent confidential counselling.
A stress policy is a statement explaining not only an employer’s attitude to stress (whether resulting from acts inside or outside the workplace) but also setting out the action you as an employer are taking to protect the mental well-being of your staff, to prevent stress and mental health problems at work and explain how it will deal with those problems that may arise.
An effective anti-stress policy should provide:
- Advice on the measures it takes to monitor and, where necessary, eradicate the effects of stress at work. This may take the form of: including stress in risk assessments and explaining the role and expectations of managers and supervisors. For a policy to be effective, managers need to be trained to assess and manage the risks of stress on an ongoing basis. Employers need to be clear about what they require managers to do and how they will be enabled to do it.
- Clear and open channels of communication and effective methods of investigating reported workplace incidents or behaviour giving rise to stress.
- Internal and external sources of support for employees suffering from stress. Internally, these may include provision of training and workshops on work/life balance and the avoidance of stress, facilitating mutual support groups (encouraging staff to informally support each other) as well as providing support for managers through human resources. Externally, employers may instruct medical specialists and provide employee assistance programmes (EAPs), telephone helplines and advice clinics.
- Reasonable adjustments to job roles and/or working conditions to accommodate disabled employees or reduce causes of stress, where possible and necessary.
An anti-stress policy alone is not enough
A stress policy can only be part of an approach to dealing with workplace stress. You need to demonstrate the company has put time, thought and resources behind it and it is followed:
- Are commitments reflected in practice?
- Is there an anti-bullying and harassment policy, disciplinary policy, capability procedure and flexible working policy?
- Are they followed?
- Do you have risk assessments and do they address workplace stress issues?
- Do you apply an effective appraisal and staff development procedure?
- Do you have an occupational health service and/or any other forms of support available to staff?
- Do you provide training for all staff and particularly for those managers who might be called on to deal with stressed staff on identifying the signs and dealing with cases of stress?
Stress risk assessments
The HSE recommends a 5-step approach to risk assessments for work-related stress:
- Identify the hazards. The 6 risk factors for stress identified by the HSE are: demands, control, relationships, change, role and support.Managers can identify the hazards in a number of ways, such as informal talks with staff, performance appraisals, focus groups, return to work interviews following sickness absence, collecting and monitoring sickness absence data, performance data, turnover rates and questionnaires.
- Decide who may be harmed and how. Any member of the workforce can be affected by stress; especially those exposed to the six factors in Step 1, or those who are particularly vulnerable due to, for example, illness or bereavement.
- Evaluate the risk and take action. This is identified by the HSE as the most important step in tackling stress and involves the actions listed below.
- Record your findings. Record the findings of the assessment and incorporate them into an action plan which sets goals to work towards, and priorities, which can be used as a benchmark against which progress can be measured.
- Monitor and review the assessment at appropriate intervals. It may be appropriate to review the assessment after a major change such as a restructuring exercise, or periodically to ensure there are no changes of note to the initial assessment.
Evaluating Risks and Taking Action. HSE advises:
Gathering data from a number of sources (e.g from questionnaires and focus groups, from existing information structures such as appraisals).
Linking problems to solutions – once information has been obtained, the next step is to talk to employees to confirm the nature of the problems and develop ideas for solutions.
Communicating the results and providing feedback to the workforce.
Where the process has identified individuals with particular concerns, the business needs to develop ways for these individuals to raise their concerns, eg employee assistance programmes and counselling services.HSE recommendations 5 step approach to risk assessment
When can employees bring stress claims
In addition to the statutory duties under health and safety legislation, employers are legally obliged to take reasonable care for the health and safety of employees in the workplace. To succeed in their claim, an employee will have to show that:
- An employer has breached the duty of care that they owe to the employee.
- This has caused the employee injury.
- An injury of that type, as a result of the breach, was reasonably foreseeable.
In the employment context, stress claims will generally arise in scenarios where either there was bullying at work or else there was an excessive workload.
Employers should note that they may be held liable for bullying or harassment by their staff. Stress claims may arise from discrimination issues too.
Common issues in stress claims
Most stress cases turn on whether the type of injury sustained by the employee (i.e. psychiatric injury) was reasonably foreseeable by the employer but the claimant must establish causation, i.e. a causal link between the workplace stress and the injury alleged.
Then looking at foreseeability, it is likely to be easier to demonstrate that psychiatric damage resulted from bullying by a particular individual, than it is to demonstrate that damage resulted from an amalgamation of excessive work pressures. However, psychiatric injury may well be foreseeable in cases involving excessive workload where the employer was put on notice that the employee was struggling to cope or was particularly vulnerable. This may happen when the employee has specifically told the employer and would be particularly relevant where the employee has had a period of stress related sickness absence before.
Guidelines were given by the Court of Appeal in 2002 which are considered by the courts as useful practical guidance and therefore even though they do not have any statutory force they are worth following.
No occupation is to be regarded as intrinsically more dangerous than another to an individual’s mental health.
One of the crucial questions is whether this kind of harm (stress related injury) was reasonably foreseeable in the individual. What must be considered is the characteristics particular to the employee, not an objective standard of the employee of “reasonable fortitude”, and the particular demands placed on them by the employer. Several factors are likely to be relevant in relation to foreseeability:
Is there an abnormal level of sickness absence within a department or job type? Have several employees doing the same job experienced unacceptable levels of stress? Watch out for high performers who, by definition, appear to cope with more than average workloads. Warning signs from employees will play a fundamental role in establishing liability because once the employer is on notice of the adverse effects of stress, the consequences are more foreseeable. It is therefore essential that employers document complaints and actively consider whether remedial action is necessary. Employers will need to be vigilant, looking for the tell-tale signs, although unless they are aware of any particular vulnerability, are entitled to assume that an employee can cope with the “normal pressures” of the job. Whilst vigilance is important, employers are not expected to be clairvoyants. They are entitled to take employees’ actions at face value. For example, an employee returning to work after a period of sickness absence, without any further explanation, is usually indicating that he is fit to resume work. Once on notice of a potential stress-related illness, the employer needs to take remedial steps.
A balancing act is involved: The size of the employer operation, its resources and the demands it faces are relevant in deciding what is reasonable. The interests of other employees and the need to treat them fairly, for example, in any redistribution of duties is also relevant. Neither are steps expected to be taken which are unlikely to do any good. So, according to the court, if the only effective way of safeguarding the employee may be to dismiss or demote them, then the employer will not be in breach of its duty in preventing a willing employee from continuing in their job.
Interestingly, the court said that an employer which offers confidential help (for example in the form of counselling) to employees suffering stress is unlikely to be found in breach of its duty. However it is difficult to see how this step alone will exonerate an employer placing unrealistic demands on a vulnerable employee.
Counselling services may be important but not decisive
Offering counselling or occupational health services or other steps would not give rise to the automatic conclusion that you had foreseen a risk of psychiatric injury due to stress at work to any individual or class of employee.
The availability of a counselling or other service may mean that you would be unlikely to be found to be in breach of your duties towards employees, even if harm was foreseeable but this does not make such services a panacea by which you could discharge your duty of care in all cases.
If an occupational health provider or other medical specialist consulted recommends that an employee is given further assessment or a more specialised medical examination, then an employer may be found to have failed in its duty of care if those recommendations are not acted upon.
Stress during disciplinary proceedings
A common problem for employers is that of the employee who, on being told to attend a disciplinary hearing, absents themselves by reason of ill health, frequently citing stress as the cause. You are then caught in the middle: on the one hand there is a need to ensure that matters are dealt with speedily, on the other hand, the employee may genuinely not be well enough to attend a hearing.
One issue that should be considered at this stage is: could stress, anxiety or depression actually have caused or contributed to the misconduct? This may be even more likely where it is capability rather than misconduct which is the subject matter of the hearing. If this seems a possibility, employers may consider dropping or at least suspending any disciplinary proceedings.
If the employee is still absent after a period of time you may, subject to the employee’s consent, obtain medical advice as to whether the employee is fit to attend a disciplinary hearing and, if not, when they are likely to be. This may be obtained from either the employee’s own GP or an independent doctor such as an occupational health physician (OHP). It should be noted that sick employees who refuse time and time again to provide necessary consent can be fairly dismissed.
Employees often expect that by getting themselves signed off with stress they can avoid disciplinary proceedings.
Getting things moving in stress during disciplinary proceedings
Things may quickly reach the point at which no further delay is feasible, bearing in mind that the ill employee may not be the only individual with an interest in the matter being resolved, and that the memories of witnesses may fade with time. In these situations, you must make a decision. In a minor case, you may decide simply to let matters drop in the interests of getting the employee back to work. However, if the matter is more serious, you may simply have to find alternative means of proceeding.
Give consideration to alternative ways of conducting the disciplinary hearing, such as by telephone, at a neutral place or location nearer the employee’s home address, or even inviting the employee to submit written submissions and holding a hearing in their absence. They would still have the right to appeal the decision and a full rehearing could be held at that stage if requested and appropriate.
For more information or queries about issues discussed in this article, please contact Abigail Oprey by email. To speak directly with Abigail or any other of The Legal Partners team of specialist business and HR lawyers based at our Richmond UK office, or our partner lawyers in Singapore or Guanzhou, please call +44 203 755 5288
This article explains the main legal issues and common situations to consider. It is not a substitute for legal advice. Please get in contact to discuss your particular issue or queries.