How should employers handle the difficult issue of stress-related sickness absence? Graham Richardson provides some guidance for employers and comments on some of the key case law.
Thirty million employees in the UK took a total of 15.2 million days off work with stress, anxiety or depression in 2013 (according to figures provided by the Office for National Statistics). Stress-related sickness absence is of increasing concern to employers, particularly those in the public sector, where contractual sick pay entitlement is sometimes more generous than that usually available in the private sector. There are substantial cost implications of finding cover for employees’ absences which, due to the nature of stress, are often for an unknown period.
Employers have a number of legal obligations to their employees in the area of stress at work. In addition to employers’ obligations under legislation (for example the Health and Safety at Work Act 1974 and the Working Time Regulations 1998) employers are also under a common law duty to take reasonable care to ensure the health and safety of their employees, and may face personal injury claims from employees where they have not fully complied with this duty.
This is a complex area, and each case will need to be dealt with on its own individual facts. However, as employers often require advice on how to deal with workplace stress, we have set out below 10 top tips which are intended to provide general guidance on some of the steps that can be taken to reduce the risk of stress-related claims by employees.
- Identify stress risk factors. The Health and Safety Executive has set out six risk factors (demands, control, support, relationships, role and change) which it believes cover the primary sources of stress at work. Employers should consider how these stress risk factors might manifest themselves in their individual organisations, and how they might apply to their individual employees. Whether through informal discussions with employees, appraisals or return to work interviews following stress-related sick leave, employers should ensure they are aware of the factors which increase their employees’ susceptibility to stress. This is an essential first step to addressing these factors.
- Training is vital. It is commonly accepted that stress is felt in the workplace when employees do not feel capable to perform their role well and comprehensive training should help reduce this situation from occurring. Managers should also be trained to identify symptoms of stress and learn how it can be managed and reduced.
- Don’t miss the tell-tale signs. Signs of stress at the workplace can include inconsistent performance, lapses in memory, indecision and uncharacteristic errors. Ultimately, stress may lead to psychological conditions such as depression and anxiety, making it crucial that employers do not dismiss an employee’s indications of stress. If an employer misses the tell-tale signs and fails to take adequate steps to minimise the employee’s stress and the employee ultimately suffers, for example, a nervous breakdown in consequence then the employee is likely to be in a strong position to bring a personal injury claim against the employer.
- Be sensitive. Management play a vital role in building a supportive workplace culture which will form the basis of a good relationship with employees, a factor which is believed to reduce stress in the workplace. Should an employee bring a stress-related claim, the Employment Tribunal or Court is unlikely to look favourably on an employer who has adopted an unsympathetic approach to an employee suffering from stress. If an employer is sceptical that an absent employee is genuinely suffering from stress, they should avoid making any allegations, at least until they have clear evidence that confirms that the employee is in fact able to work. Even in these circumstances there is a risk in making such allegations and legal advice should be taken.
- A helping hand. Case law establishes that once put on notice of a potential stress-related illness, employers should take remedial steps. The cases give a significant number of suggestions of steps that might be appropriate, including sabbaticals, redistributing work, counselling and buddying. In the case of Dickins and O2 PLC  the Court of Appeal took the view that the employer should have sent the employee home and referred her to Occupational Health. What is appropriate will depend on the individual circumstances of the employee and the employer, and in many cases remedial steps will need to be taken in consultation and agreement with the employee. Employees may benefit from stress assistance programmes or independent confidential counselling to provide them with the tools required to manage their stress at work. As already identified, there is a risk of a personal injury claim from the employee if they suffer a breakdown where their employer has failed to offer adequate support. However, the mere fact of an employer offering an employee a counselling programme may not be enough to avoid liability if the underlying cause of the stress is not addressed by the employer. This was evidenced in Intel Corporation (UK) Limited v Daw , where despite the employer offering the provision of counselling services, this did not discharge the employer’s duty of care. As such, employers should not see the offer of counselling as a panacea by which liability always can be avoided.
- Doctor’s orders. When employees take stress-related sick leave, it is common for absences to be long-term. If the employer is unsure when an employee is likely to be able to return to work from a long-term absence, it is sensible to consult an independent doctor (such as an occupational health physician) in respect of obtaining a medical report. The medical report should address, among other things, the employee’s prognosis for recovery and any reasonable adjustments that the employer may be able to make to facilitate the employee’s return to work. Often the quality of the medical report will depend on the quality of the questions asked to the doctor, and therefore it will be important to ensure that pertinent questions are asked when commissioning the medical report. Furthermore, employers will need to ensure that they comply with the Access to Medical Reports Act 1988 at all times when commissioning a report. Generally employers will be expected, with the employee’s agreement, to implement the doctor’s recommendations where reasonably practical.
- Maintain contact. While the employee is on sick leave, it is the responsibility of the employer to request updates on their health as appropriate, not the employee to volunteer these updates. Employers will need to be careful to strike the right balance in judging how often to contact the employee and by what method. Employers need to avoid on the one hand being accused of abandoning their employee and leaving them feeling isolated during their absence, and on the other hand being accused of bombarding them with emails or calls from work, or pressurising them back to work when they are seeking to recuperate. Excessive contact from work during sick leave might be a cause of further stress for the employee. The tone as well as the frequency of the contact needs to be judged appropriately.
- Reasonable adjustments. It is important to be aware that an employee with a stress-related condition may be disabled for the purposes of the Equality Act 2010 (“EA 2010”), in which case they will have a number of legal protections under that legislation. If an employee is disabled under the EA 2010, the employer will be under a duty to make reasonable adjustments, which may include, for example, reallocating excessive work with the employee’s agreement and providing extra support/supervision. In Croft Vets Ltd and others v Butcher, an employer was deemed to have breached its duty to make reasonable adjustments by not paying for an employee with work-related stress and depression to have private counselling and cognitive behavioural therapy in circumstances where this had been recommended in the medical report commissioned by the employer. Whether an employer is expected to arrange such counselling is likely to depend on the individual circumstances of each case – it would be for an Employment Tribunal to determine what adjustments were reasonable in the individual case to facilitate the employee’s working, and adjustments that are considered unduly onerous on the employer in one set of circumstances might be considered reasonable in another. In some circumstances, the employee will not be able to continue working in his current role but he would be able to continue working in a new adjusted role – if so then this adjusted role should be offered to him if it is available and is suitable alternative employment. Where the employee is not disabled for the purposes of the EA 2010, while the statutory duty under that legislation to make reasonable adjustments will not arise, employers will still be expected to take reasonable steps to address the employee’s stress-related issues.
- Keep a record. When dealing with stress-related sickness absences, particularly if the employer is defending a stress related claim, it is crucial that the issue is properly documented. This will include taking notes of telephone calls and meetings with the employee, and copies of fit notes provided by the employee. Further, if the employer has personal injury insurance in place, consider whether it is necessary under the terms of the insurance policy to inform the insurers at an early stage of the issues concerning the employee.
- Considering dismissal - a last resort. If an employee on sick leave has the necessary continuous service, they have the right not to be unfairly dismissed. One of the potentially fair reasons for dismissal is incapability to perform work of the kind they were employed to do, and this may include on the grounds of ill-health. To defend a claim of unfair dismissal, the employer would need to prove that the dismissal was for a fair reason, and that a fair dismissal procedure was followed. If the employee does not have the necessary service for bringing an unfair dismissal claim then they might seek to argue that one of the statutory exceptions to the minimum service period for an unfair dismissal claim applies, and/or that their stress-related condition constitutes a disability entitling them to bring a disability discrimination claim under the EA 2010. Employees dismissed due to stress-related sickness absence may bring a disability discrimination claim in addition to an unfair dismissal claim, in circumstances where they can show that their stress-related condition constitutes a disability for the purposes of the EA 2010. There is no minimum length of service requirement to bring a disability discrimination claim, nor is there any upper limit on compensation that employees may be entitled to, and awards may be made for injury to feelings. If an employee is dismissed and brings an unfair dismissal claim in relation to their dismissal, the employer will need to be able to demonstrate that the employee was only dismissed as a last resort on the basis of appropriate medical evidence after all other reasonable alternative methods of facilitating the employee’s return to work had been exhausted, that the dismissal was for a fair reason and a fair dismissal procedure had been followed. Similar issues would be likely to be considered if a disability discrimination claim is brought in relation to such a dismissal. Dismissing employees with health issues will almost always involve legal risk for the employer, but at the same time it should not be assumed that it is always impossible. However, legal advice should be taken prior to taking steps to dismiss an employee in such circumstances.
As the demands in public sector workplaces increase, instances of stress in the workplace are also likely to increase. Ultimately prevention is better than cure and for this reason it is imperative that employers create a working environment in which management proactively seek to identify and then to address stress in the workplace and, wherever possible, to reduce the sources of stress.