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By Michael Scutt, 19/01/2010 10:00 am

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

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By Michael Scutt, 18/01/2010 10:20 am

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

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By Michael Scutt, 06/01/2010 5:37 pm

Wot, no snowman?

I’m not referring to the five inches of snow outside as I write this, and the inevitable disruption caused to roads and railways for the next week,  but instead I am considering what the main statutory changes affecting employment law issues in 2010 will be.

January  

Not much will happen this month while everyone looks in astonishment at their credit card bills, but just a reminder that the Vento guidelines on awards to be made in cases of injury to feelings in discrimination cases look to have been increased late last year in the case of Da’Bell v NSPCC. The Court of Appeal case in Vento v Chief Constable of West Yorkshire Police in 2002 set three main bands for ETs to consider when making awards for injury to feelings; 

Lower – £500 – 5,000                       – for one-off or isolated incidents 

Mid     - £5,000 – 15,000 – for more serious incidents but not of the most serious nature 

Upper -£15,000 – 25,000               – for the worst examples of discriminatory behaviour, such as where there has been a campaign of bullying and harassment.  Only exceptionally should awards be made in excess of the upper figure. 

Since 2002 these bands have not changed.  It is now anticipated that the new bands will be 

Lower:  £? – 6,000 

Mid – £6,000 – 18,000 

Upper – £18,000 – 30,000 

For a fuller and very helpful discussion see Usefully Employed’s post on the subject.  

February 

This month will see something that hasn’t occurred before.  The maximum compensatory award that can be made by an Employment Tribunal for unfair dismissal will actually decrease. The Employment Rights (Revision of Limits) Order 2009 states that the maximum award will decrease from its current £66,200 to £65,300 for all claims where the event giving rise to the claim  occurred on or after 1^st February 2010.  This is because the maximum amount is linked to the Retail Prices Index (RPI) and that fell by 1.4% in the year from 1^st September 2008. 

The MINIMUM AWARD that can be made to an employee excluded/expelled from a Union and not re-admitted by the time the case reaches an ET falls from £7,300 to £7,200 

The maximum guarantee payment to an employee under s.31(1) ERA 1996 decreases to £21.20 per day. 

Each February also sees various other rates and limits amended – usually upward.  This time though the maximum weekly award, used for Statutory Redundancy Pay purposes and calculating the Basic Award in Unfair Dismissal cases will remain at £380, but only because it was increased to that figure last October.   

April – other notable increases, will be 

Statutory Adoption         } 

Paternity                            }                          all increase from £123.06 to £124.88 per week 

Maternity Pay                   } 

Maternity Allowance      } 

But, Statutory Sick Pay (SSP) will remain unchanged at £79.15 p.w 

This month will also see employees at employers with at least 250 employees acquire the right to request time off for studying or training relevant to the business.  The right is simply to request time off NOT for the employer to fund the training. 

Income Tax will rise to 50% for those earning more than £150,000 p.a 

October 

Legislative developments tend to occur in April and October now.  In October it is expected that the Equality Bill will come into force to hopefully bring some order to the convoluted and confusing plethora of anti-discrimination laws currently on the statute book. It won’t just tackle discrimination in the employment arena, but will be wider ranging. Contractual provisions that prevent employees discussing their pay with workers are expected to be made illegal and the government will acquire the power to force privatre companies to disclose gender-pay details.  More on all this in due course, assuming that it survives a change of government 

Throughout the year there will be new cases being decided that will make the headlines, or appeals considering cases that caused a stir in 2009.  I will cover these as they come up so please subscribe to the RSS feed or to the email updates for “breaking news”. 

If you need advice on any employment law issues please call me on 0207 464 8433 or email me at michaelscutt@dalelangley.co.uk.

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By michaelscutt, 21/05/2009 9:30 am

I was watching “The Trouble with Working Women” on BBC2 last night.  The newsreader Sophie Raworth and a bloke called Justin investigated why women don’t earn as much as men in the workplace.  I don’t think it gave any precise answer as to why it occurs; it merely highlighted that the Equal Pay Act 1970 has done little, or nothing, to reduce the gender pay gap. 

According to the statistics they presented, if I heard it properly whilst burning the supper, women in the City get paid 60% less than men.  60%!  If this is correct it is incredible.  I can fully accept that a pay gap exists between the sexes and that discrimination still occurs but the amount seems amazing.  

Be that as it may, I then read in Employers’ Law*, a useful HR magazine published by Reed, that equal pay claims accounted for one-third of all Employment Tribunal claims in 2007-08, which is not surprising in the circumstances.  The article then goes on to state that 52% of those claims were withdrawn , 23% struck out following a hearing and only 7% were successful.  What about the other 17%?  Presumably those were the cases where the employer succeeded in rebutting the claim.

The number of equal pay claims has been increasing over the last few years, but increased massively last year.  In 2007/08 60,000 equal pay cases were lodged, up from 17,268 the previous year and 4,412 in 2003/04 .  This huge increase may reflect increased public awareness of the gender pay gap or it may be a factor of the recession – if you have just been placed at risk of redundancy, why not submit a claim for up to six years’ wage differential?

Equal Pay claims are difficult to prove, cost lots of money in legal fees and take a long time to bring to a final hearing.  In very basic terms there are two types of claim that a woman can bring if she thinks she is being paid less than a man; (1) a claim for like work (i.e. that a man is doing the same job as her for more money) and (2) a claim for work of equivalent value – in other words that a man doing a similar but not the same job is getting paid more.  The claimant can backclaim for up to six years.  The second type of claim is particularly difficult to bring because it requires an expert assessment of the composition of the roles in question.  My guess is that the 52% of withdrawn claims include claims which settled because both parties did not have the resources to fight all the way, or employers who did not  want the publicity of  Tribunal proceedings.   That only 7% succeeded of those Claimants  that did fight on reflects the difficulty in proving the cases and obtaining the necessary evidence. 

One of the main problems for a claimant is finding a comparator – i.e can a female Claimant point to a man doing the same work or an equivalent job for more money?  It is often easier said than done, but this may change following the Court of Appeal’s (“CA”) judgment in the case of Mid-Suffolk Mental Health Partnership NHS Trust v Hurst and others which may make it easier for Claimants to succeed.  The CA said that it would not be necessary for Claimants to name a comparator in order to succeed.  New legislation in the Equality Bill (see my earlier post on this) is likely to have a much more radical effect.  Secrecy clauses in employment contracts will be outlawed, allowing employees to discuss what they earn.  Public authorities will have to publish gender gap pay details and private companies with more than 250 employees have until 2013 before they are required to do the same.

It is to be hoped therefore that the gender pay gap will eventually be eliminated and women no longer paid less simply because of their gender.  There’s a long way to go though.

* Employers’ Law May 2009 p.10

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By michaelscutt, 28/04/2009 8:49 pm

This is something we will be hearing a lot more about over the next few months and years.  At last the government has introduced legislation that seeks to rationalise the current miasma of anti-discrimination legislation and bring it all into one piece of legislation. 

At the moment, in the workplace environment, six types of discrimination are outlawed – age, race, sex (gender), sexual orientation, religious belief and disability.  Each piece of legislation behind each type is different in certain respects so a new Act that contains all the relevant definitions, duties and defences is to be welcomed.  Whether, in practice, the Equality Act (if it gets that far) will be is another matter.  Undoubtedly it will change as it goes through Parliament but here are the current headlines

1. The Secretary of State will be given power to order employers with more than 25o employees to publish information about male and female pay levels, with a view to thus highlighting discrepancies in pay between the sexes.  This won’t be enforced for at least the next four years though.

2. Secrecy clauses in employment contracts forbidding staff discussing their pay and bonuses (what’s a bonus?) will be outlawed.

3. Associative discrimination will be made illegal.  This means that, as in a recent case, a carer of a disabled person is dismissed because of her caring obligations, she will be able to claim disability discrimination even though she is not herself disabled. 

4.  There will be new definitions of indirect discrimination and disability discrimination.

5.  Positive discrimination at recruitment in favour of disadvanteged groups will be allowed when the candidates are otherwise equally matched.  

6. Public bodies also have duties imposed upon them to promote equality.

The Bill has been mooted for some time now and it will be interesting to see how much survives the scrutiny of Parliament, especially at a time when the economy is in deep recession.  Many employers, no doubt, will not relish having additional burdens placed upon them by government.