by Michelle Ryan, Associate solicitor in employment department at Ronan Daly Jermyn
A common issue that arises for Irish employers is dealing with and managing employees who are suffering from alleged work related stress. This can arise in the context of performance management of employees, during redundancy or other internal processes, such as disciplinary processes, or due to workplace bullying or other interpersonal issues.
As we start a new year, it is an ideal opportunity for employers to review their current work practices and policies to ensure they are equipped to handle this common workplace issue should it arise in their business.
Legally, employers have a duty under the Safety, Health and Welfare at Work Act, 2005 (“the 2005 Act”) to ensure employees have a safe place of work. Furthermore, stress in a business has negative consequences for both the employee suffering from the stress and the business itself, such as absence issues, increased staff turnover and poor performance.
Ultimately, employers who do not deal effectively with allegations of work related stress are potentially exposed to claims from employees who have suffered non-physical injuries or psychological illnesses arising from stress at work and there is an extensive range of court decisions which make it clear that if organisations do not tackle the management of work related stress, the employer runs the risk of significant civil liability. As outlined above, often these claims arise where there are allegations of bullying and in practice, we see huge numbers of employees undergoing performance management processes going absent on sick leave due to work related stress. Employers are then left in a difficult position in terms of tackling both the absence due to the alleged workplace stress, together with the employee’s underlying performance issues.
Identifying Work Related Stress
It is recognised that within any business, it is normal to be under pressure from time to time, which is distinct from work related stress.
The Health and Safety Authority (HSA) define stress as broadly being “the negative reaction people have to aspects of their environment as they perceive it” and “involves a sense of an inability to cope”. Work Related Stress (WRS) is defined as “stress caused or made worse by work”. It may be caused by perceived/real pressures/deadlines/threats/anxieties within the working environment.
Role of the Employer in Addressing Work Related Stress
From a preventative perspective, employers have a legal responsibility to provide a safe place of work and should promote positive mental health to avoid stress related illness. As with the prevention of bullying, preventing stress at work facilitates the good health of employees and others who may be affected by stress related illness. As with bullying, there has been a recent increase and awareness of stress at work, partly because of the increasing civil litigation regarding stress.
The general duties to provide a safe place of work imposed by the 2005 Act have been supplemented by the Health & Safety Authority’s (HSA) Guidance document “work related stress – a guide for employers”, available on www.hsa.ie .
Employers must assess all risks for potential stress in the workplace. The HSA has provided the following checklist of potential causes of WRS for employees:
- Role at work: is it clear and integrated, or do people often have conflicting roles?
- Relationships at work: is there constant strain and disharmony, or even open aggressive behaviour between people at work?
- The hierarchies and leadership at work: are effective and fair management practices in place, supported by positive leadership?
- Control: do people have some control over some aspects of what they do each day, or are they totally controlled, as though they were machines?
- Training: are people properly and adequately trained for the jobs they actually do?
- Demands: do employees have much more work to do than they are capable of doing to the standard, or within the time, expected? Some of the above factors can occur in any workplace, without leading to WRS; but when some are evident, and even more so when they occur simultaneously and are ongoing, there is a higher and increasing risk that one or more employees will begin to feel stressed.
For all employees, it is worth noting that the maximum hours set out in the Organisation of Working Time At 1997 must be observed, failing which there is a clear liability on the employers part.
If issues are discovered, reasonable steps must then be taken to deal with those pressures.
What can an Employer do to Prevent Stress from becoming a Problem?
If stress related illnesses are reasonably foreseeable in your business, the 2005 Act provides that the risk of stress must be referred to in your risk assessment policy. Clear policies and processes need to be implemented and managers trained in them, including Dignity at Work, Performance Management policies and the availability of Employee Assistance Programmes offering access to confidential support services helps to demonstrate an employer is taking action to address WRS.
Robust policies and procedures will be an employer’s first line of defence and are crucial in demonstrating that the employer has processes in place to prevent and deal with WRS.
What should an Employer do if an Employee complains about being stressed at work?
An employer should always listen to their staff members when an issue arises. If the stress is work related it is important to address the source, involve the employee in decisions in moving forward and consider referring the employee for a medical assessment with an Occupational Health provider to provide an objective opinion on the employee’s condition.
Some other actions include:
- Show that stress is taken seriously and be understanding towards people who admit to being under too much pressure by trying to identify the cause of the stress and taking steps to address those causes;
- Consider flexible working policies
- Ensure employees are trained to carry out their roles;
- Treat employees fairly and consistently.
It is also advisable to notify your insurance company of any such notification from an employee in the event that the employee subsequently issues a claim against the employer.
Stress claims are difficult and depending on the alleged factor attributed by the employee to the WRS, the correct avenue for addressing the complaint will vary. Prudent employers will ensure they follow their procedures, obtain medical and legal advice where necessary, remembering always that prevention is better than cure and early intervention is crucial.
About the author
Michelle is an associate solicitor within the employment department at Ronan Daly Jermyn and has wide ranging experience advising on all aspects of employment law. Michelle also has built specialist expertise in Data Protection and Privacy issues and is a member of the Firm’s Cyber and Data Protection Team.
Michelle’s daily work involves providing strategic HR and employment law advice and support to her clients in the technology, pharmaceutical, charity/not for profit, healthcare and hospitality sectors, on issues including drafting contracts and policies and procedures; termination of employment, including redundancies; the conduct of internal investigations; performance management; transfer of undertakings; equality; work permits and intra-company transfers; issues associated with contingent workers; whistleblowing issues; organisation of working time; industrial relations; protective leave; severance agreements; sexual harassment and bullying and harassment.
Michelle tutors in employment law for the Law Society and is a regular contributor to the Industrial Relations News and to Legal Island’s email service