by Caoimhe Heery, Senior Associate at Ronan Daly Jermyn.
“We are hearing more of our employees saying that they are feeling anxious and stressed due to the change in current work practices; working from home and juggling childcare. How do we handle it?”
Employee stress, which often stems either from issues around workload or bullying/harassment, is particularly relevant for employers, in the unprecedented circumstances in which we are all operating as a result of Covid-19.
Workload, hours of work, childcare and remotely managing other staff are particular flashpoints, with many employees working from home some or all of the time. Some employees are trying to juggle caring for children, often with job uncertainty or pay cuts looming as well. Additionally, the normal social supports that are available in a workplace are proving harder for employees to access, which can have the effect of magnifying any difficulties which crop up.
The obligations placed on employers come from both statute and common law. Employers have a general legal obligation to ensure the safety, health and welfare of their employees at work. Section 8 of the Safety, Health and Welfare at Work Act (SHAW) 2005 places a specific obligation on employers “to manage and conduct their work activities” in ways that:
1. ensure the safety, health and welfare at work of their employees so far as is reasonably practicable, and
2. prevent “improper conduct or behaviour” likely to put the safety, health or welfare at work of employees at risk, so far as is reasonably practicable.
It does not mean that an employer has to guarantee that an employee will not suffer a work-related illness or injury. It means that employers have a duty to their employees to prevent foreseeable illnesses or injuries.
The same principles of employer’s liability apply to stress-related work injuries, as to any physical work injuries. To establish a case against an employer, an employee needs to show:
1. That their employer breached their duty to the employee and
2. That as a result of that breach, the employee suffered an injury or illness (i.e. that there is a causal link). It is not enough to show that occupational stress has caused the harm – the employer must have failed in its duty to the employee.
What are the red flags an employer needs to be aware of?
Helpfully, the English Courts set out some guidance as to the red flags an employer should consider where there is an allegation of stress in the workplace. These have become known as the “Hatton Principles.”
- Is the workload much more than is normal for the particular job?
- Is the work particularly intellectually or emotionally demanding for this employee?
- Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs?
- Are there signs that others doing this job are suffering harmful levels of stress?
- Is there an abnormal level of sickness or absenteeism in the same job or the same department?
- Has this employee a particular underlying condition or vulnerability?
- Has he or she already suffered from illness attributable to stress at work?
- Have there recently been frequent or prolonged absences which are uncharacteristic of him or her?
- Is there reason to think that these absences are attributable to stress at work, for example because of complaints or warnings?
In terms of patterns of absences, it has previously been held that a three week absence by an employee was something that a reasonably prudent employer would have looked into further to find out what was going on. If the absence is uncharacteristic of the employee or a medical cert refers to workplace stress the employer should investigate this further.
If the employer is on notice that there may be a problem, either because the employee or someone else has drawn the employer’s attention to the fact again, it is something the employer needs to address and handle sensitively with the employee.
An employer will be heavily criticised if they do not address the situation. Where there is a chance that stress may be an issue the employer should also remind the employee of the policies and procedures that the company has in place such as the grievance policy. Where appropriate, the employee should be referred to the company occupational health advisors to ascertain if they are fit to be at work, engage in any process and also to see if there are any changes or accommodations that the employer can provide to assist the employee. The employer should also advise the employee of its Employee Assistance Programme (EAP) where available.
Key take-aways for employers:
Be Reasonable: What would a reasonable employer do in the circumstances?
Think: Is there a situation which is likely to:
1. Cause damage to the employee’s health (physical or mental), and
2. Is it attributable to their work or their workplace
Be Aware: Generally, an employer is entitled to assume that the employee can withstand the normal pressures of the job unless the employer knows of some particular problem. Have we been told by our employees that they are finding working from home isolating and stressful? Has an employee complained that their workload is causing them excessive stress? Are employees making it known that trying to manage childcare while working from home is putting a strain on them? Do we have an employee that has suddenly started having uncharacteristic absences from work?
Talk: Talk to your employees about the risks of stress and what your company is doing to alleviate them (“Ways of working”, “Wellness programme”, “EAP” etc.)
Remember: Employees may be under particular stress at this time due to work, family and financial pressure brought about by Covid-19.
EAP (Employee Assistance Programme): Where possible partake in an EAP programme and ensure your employees are aware of the benefit it can offer. In addition to being an excellent support to your employees, taking the pro-active step of providing your employees with access to an independent, confidential counselling service also provides an employer with some legal protection.
Bullying and Harassment & Grievance Policies: Employers are legally obligated to have both a bullying and harassment policy, and a grievance policy. Make sure your policies are fit-for-purpose and up-to-date, in the context of the new ways of working necessitated by Covid-19, and the new stresses those changes may cause employees. Make sure your employees are aware of your updated policies and have access to them.
Insurance: If an employee alleges that they are suffering from work related stress you should immediately notify your insurer.
In conclusion, given the unprecedented changes in how we work and the extra stressors and strains that have been placed on employees over the last number of months it is important for employers to be mindful of potential stress claims. Should an employer become aware that an employee is alleging work-related stress, legal advice should be sought at an early stage.
About the author
Caoimhe joined Ronan Daly Jermyn’s Employment team in 2012. She provides advice on all areas of employment law. Caoimhe has a particular interest in the areas of health, education and the life sciences sector. On the non-contentious side, Caoimhe gives HR professionals practical and commercially focused advice on their day to day issues including grievance and disciplinary procedures and also has a specific responsibility within the team for pensions, having previously obtained a Law Society certificate in Pensions Law and Practice, and work permit applications and appeals for multinational clients. Caoimhe also has a particular interest in insolvency and M&A work.
Caoimhe is a committee member of the C.I.P.D. (West) branch. She also provides tailored training and legal updates to her clients. She has lectured on the Law Society Diploma in Employment Law and tutors employment law on the Law Society professional practice course. She also contributes to the IELJ and Legal Island.