Banks are facing a rising tide of stress at work claims, according to Reuters yesterday. The report refers to anecdotal evidence by GQ Employment Lawyers to the effect that the number of “stress related lawsuits” is on the increase, but doesn’t say what type of lawsuits, nor give any statistics to back up the assertion.

 Never mind, the Health & Safety Executive’s own statistics for 2010/11 state the following;

“The number of new cases of stress, depression or anxiety has fallen from an estimated 254,000 in 2001/02 to 211,000 [in 2010/11]” *

Whether that downward trend will continue in 2011/12 or be broken as the report suggests we will have to wait and see. In my view it is unlikely that we will see a tidal wave of stress claims in the courts or Tribunals for various reasons – see below – but because when the next recession, which looks inevitable now, strikes it will be accompanied by job losses.  The CIPD produced a report yesterday predicting a “slow, painful contraction” in the jobs market in Quarter Four this year as many employers impose a hiring freeze. It isn’t actually predicting a rise in redundancies merely that once you’re out of a job you may find it hard to get another one.

I’ve acted for many employees over the years with occupational illnesses or injuries (including stress cases) and the one factor that usually concerns most, if not all of them, is the reaction of their employer if they bring a personal injury claim or assert their legal rights in some way.  Bankers are prey to this concern just as much as any other workers, arguably more so if they think it might jeopardise their annual bonus. The other concern, which should be ameliorated by the banning of pre-job offer health enquiries by employers under the Equality Act but probably isn’t, is that having a lengthy spell off work with stress will render a job-seeker “damaged goods”.

If I‘m wrong and a flood of stress at work claims does arise there’s another important consideration to bear in mind.  It’s relatively easy to commence a claim, start a protocol or issue proceedings, but quite another to win and recover compensation. Most employers faced with a stress at work claim aren’t likely to simply roll over and pay up.

There are several possible claims; in negligence for personal injury, for harassment under the Protection from

Harassment Act 1997 (PHA), or for injury to feelings at an Employment Tribunal if the stress is caused by harassment on the grounds of sex, race, disability, age, religious belief or sexual orientation (known as “Protected Characteristics”) . All it says is that claims from financial services staff are increasing, in the face of challenging economic conditions, long working hours, the threat of redundancy as well as being the occupation that currently everyone loves to hate (well, it gives estate agents and solicitors a break I suppose).

To sue for personal injury in the tort of negligence (which is the type of claim you would make if you suffered a whiplash injury in a car crash or a back injury from lifting something heavy at work) a Claimant has to have suffered a medically recognised illness or injury.  “Mere” stress won’t be enough, it has to go beyond that and will need to be verified by a medical practitioner, preferably a Consultant Psychiatrist.  That will be expensive.

The first legal issue is whether the illness/injury was reasonably foreseeable to the employer, in other words would the reasonable employer have realised, or should they have realised, that an employee subjected to those particular working conditions would suffer a psychological injury or illness.  That can be a difficult hurdle to overcome because mental illness tends to be “invisible” and most people don’t admit they have a problem until they become very unwell.  An employer is entitled to view his/her staff as being ordinarily robust and able to deal with the ups and downs of the workplace unless they have particular knowledge to the contrary.  It is in those cases where an employee has suffered mental illness, notified the employer of it, been off work as a result and then returned only to have another breakdown later on that have tended to be successful with claim for personal injury.

The second main problem tends to be in proving that the illness/injury was caused by or contributed to by the actions of the employer.  That usually means a forensic examination of the Claimant’[s medical records to see if they have any other stressors in their life – such as a prior history of mental illness, or have been going through a divorce, in trouble with the police etc.

Finally, these type of claims tend to be very expensive to put together, usually vigorously contested by the employer’s EL insurer and, because the claim is taken through the Court (High or County), there is a risk of losing and having to pay the other side’s costs – at least until the Jackson litigation reforms are introduced and we have “Qualified One-Way Costs Shifting”.

Claims under the PHA are, perhaps, slightly easier if the Claimant can show a near criminal standard of harassment from, e.g. their line manager, but that sort of claim doesn’t help an employee who is grossly overworked and trying to do the work of three people.  The ET claims for harassment and victimisation also require a “Protected Characteristic” to be the motivating factor in the employer’s behaviour.

Personal injury law is very unhelpful to people suffering from mental illness caused by the workplace. There won’t be a great increase in the number of claims going through the courts because the substantive law hasn’t changed.

• HSE Annual Statistics 2010/11 p.5

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. Stress at work
3. Seven Top Stress Management Tips for Employees

UK Banks Facing Rising Lawsuits over Stress? Really? originally appeared on Jobsworth by Michael Scutt on 15/11/2011.

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According to a piece from The Mirror last Wednesday it is. This is because the government is planning “savage spending cuts” at the Health & Safety Executive (HSE) which will reduce the number of workplace inspections carried out, thus increasing the risk of personal injuries occurring.  The article cites a very sad incident to one worker mortally injured on his last day at work.

The government says it wants to “cut red tape” and plans to cut 11,000 workplace inspections as part of plans to reduce the HSE’s budget by 35% by 2014-15. It is all part of the government’s plan to “go for growth”.  As the HSE has statutory responsibility for protecting the health safety and welfare of people at work these cuts may well mean that it fails to fulfil those duties unless there is a significant reduction in scope of them.  That may be difficult because much of the UK’s health and safety legislation in inspired by European law.

Health & Safety Gone Mad?

Where the HSE does carry out a workplace inspection and finds that health and safety laws are not being observed, it can issue an enforcement notice requiring remedial action. The number of enforcement notices issued by the HSE (and by local authorities who retain responsibility for, amongst other things, offices and shops), has been increasing over the last couple of years. Click here for the statistics issued by the HSE. Expect the number of enforcement notices to decrease as a result of these cuts but that won’t necessarily mean the workplace is getting safer. In a recession there may well be more incentive on businesses to cut corners if it saves money and time

It’s a serious issue and one that deserves consideration beyond the usual, predictable, clash of “health and safety is strangling enterprise” and “more work for personal injury lawyers”, although the latter probably will be the result if more accidents at work occur because of a lack of inspections. There will probably be an increase in personal injury claims and whilst many will groan at the prospect of more work for lawyers, do bear in mind that if the HSE isn’t able to enforce health and safety laws in the workplace, it may only be the prospect of litigation that persuades some employers not to ignore it altogether.

“Health and safety” has become a dogma for some, to be trotted out as an excuse not to take any sort of risk, or to obstruct or as a smokescreen for when people can’t be bothered to put themselves out.  The government’s review of Health and Safety law is to be welcomed, but don’t let it put employees lives at risk.

Related posts:

1. Compensation for Workplace Accidents
2. Workplace Accident Claims: the U.S experience
3. How to Treat an Office Worker

Is the Workplace About to Get More Dangerous? originally appeared on Jobsworth by Michael Scutt on 28/03/2011.

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.

Related posts:

1. Seven Top Stress Management Tips for Employees
2. Stress at work
3. UK Banks Facing Rising Lawsuits over Stress? Really?

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

I don't like Mondays - The Boomtown Rats

So, it’s Monday again.  It always seems to be Monday and they never seem to get any better.  The Boomtown Rats didn’t like them, still less Brenda Spencer the 16 year old girl whose 1979 shooting spree in San Diego and subsequent blunt explanation inspired their song.    Even if most people aren’t drawn to actually shooting their fellow workers, the third Monday in January is the worst, bleakest, most depressing day of the year.  This is supposedly because Christmas is a distant memory, the credit card bills need paying, the weather is awful and the next holiday is months away.  See this article from Mail Online last year for the full horror story: http://www.dailymail.co.uk/health/article-509367/Its-miserable-Monday-How-think-positive-bleakest-day-year.html   

Of course, there is feeling down and there is full on mental illness, which is of a different magnitude altogether. Mental illness is still stigmatised and not properly understood.  It is a real issue for society as levels of depression and anxiety seem to be increasing.  This is particularly so in the workplace.  The Health and Safety Executive (HSE) has produced statistics for 2008/09 which suggest that;   

• In that year 415,000 people in work believed they were suffering from work-related stress at levels to make them ill
• The 2009 Psychosocial Working Conditions Survey said that around 16.7% of all working individuals thought their job was very or extremely stressful
• The Labour Force Survey (LFS) suggests that 11.4 million working days were lost through “self-reported work-related stress, depression or anxiety” in 2008/09
• GP data collected by a research group called THOR, run by Manchester University, shows that 30.9% of all diagnoses of work-related ill-health are mental health related and the average length of sickness is 26.8 working days

Click here for the full HSE summary.  The statistics show that, despite what might be thought anecdotally, the levels of self-reported stress was broadly level throughout the last decade, although THOR’s figures show that Occupational Health Physicians report a clear upward trend over that period (but psychiatrists don’t: they report levels remaining stable).  What does this say about Occupational Health Physicians: correctly sympathetic or not applying the right tests?   

 These are worrying figures and demonstrate that stress at work is a significant problem.  However, the first two statistics above only deal with self-reported stress and that must raise concern that some employees exaggerate their symptoms or actively “play the system”.  For a combatively worded argument in favour of the latter proposition, please see the letter from Helen Giles, an HR Director in Personnel Today on the 7th January.  The central point she makes is that there is a difference between people who claim to be ill from those who actually are;   

“Any HR practitioner will … [say] … that in nine cases out of 10 where an employee is told they are facing any sort of disciplinary or capability procedure, they run to the doctor for a certificate saying “work-related stress” and stay off work for several weeks, at the employer’s expense, as a way of avoiding or delaying proceedings”    

Strong stuff, but not untrue, although I would query whether the rate is really as high as nine out of 10.  Without doubt though, it happens.      

Ian Barratt of Mind Strengths

What can be done if you’re an employer, or how to deal with stress if you are an employee? I have no magic wand but I’m delighted to announce that  I’ve asked Ian Barratt of Mind Strengths Limited, to write his “Seven Top Tips for dealing with Stress” which will provide common-sense ways to keep stress under control.  Mind Strengths is a specialist consultancy advising both employees and employers on how to cope with stress at work.    

 In their own words   

“(Mind Strengths) specialise in helping clients identify, reduce and manage the risk of stress in the workplace. In turn, this helps clients save money, reduce absenteeism caused by stress and improve productivity and morale.”   

 To coincide with “Miserable Monday” Ian’s Seven Top Tips will be published on this blog next Monday 18th January, along with my own tips for employers on how to avoid stress at work claims.   

To ensure you don’t miss it, please subscribe to the RSS feed or subscribe to the email updates.

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. Plough Monday
3. Seven Top Stress Management Tips for Employees

Coming Soon … Miserable Monday originally appeared on Jobsworth by Michael Scutt on 11/01/2010.