The COVID-19 pandemic, lockdowns and drastic changes to our day-to-day personal and working lives, have led to negative impacts on our collective wellbeing.
In Stress Awareness Month, we discuss recent research undertaken into mental health in the workplace, and the current legal position around employers’ duties.
See below too for some top tips to support employees to encourage a positive working environment, while mitigating against potential employers’ liability claims relating to mental health.
The COVID-19 crisis radically changed the way we work for many of us, with a shift from traditional office to remote or hybrid working. While employers continue to actively seek out ways of providing a working environment which protects employees from work-related stress, depression, anxiety and burnout the numbers of related complaints continue to rise.
On 22 November 2022, the Health and Safety Executive (HSE) published its annual statistics for work-related stress, anxiety or depression. The latest estimates confirm that the total number of cases of new and longstanding cases of work-related stress, depression and anxiety have risen from just over 800,000 to 914,000 cases. This total includes 372,000 new cases and over 17 million working days lost attributable to workplace stress, depression, and anxiety. The HSE recognises that the underlying rising trend has been worsened by the pandemic.
In January 2023, the World Health Organisation classified ‘burnout’ under ICD-11 as being a syndrome resulting from chronic workplace stress that has not been successfully managed. It is characterised by (1) feelings of energy depletion or exhaustion (2) increased mental distance from one’s job, or feelings of negativism or cynicism relation to one’s job and (3) a sense of ineffectiveness and lack of accomplishment. Burnout refers specifically to phenomena in the occupational context and should not be applied to describe experiences in other areas of life.
With regard to the public sector, ‘doctors are experiencing workplace burnout at the highest ever levels recorded’. According to a study published in 2022 by the General Medical Council, 39% of junior doctors reported experiencing burnout to a high or very high degree because of their work and this was six per cent up on the previous year’s survey.
On 30 March 2023, His Majesty’s Inspectorate of Constabulary & Fire and Rescue Services published its report Values and culture in fire and rescue services, which found evidence of bullying, harassment and discrimination in every fire and rescue service in England. The inspectors were ‘deeply concerned’ by some of their findings.
Allegations of bullying and harassment, in particular, are a common feature in work-related stress claims. It is not unusual for civil claims to involve allegations of work overload in conjunction with or as a result of alleged bullying and harassment. These claims often adopt a two-pronged approach, with a claim under common-law and a civil claim for statutory harassment under Section 3 of the Protection from Harassment Act 1997 (PHA).
This is a reminder that civil claims for work-related stress, bullying and/or harassment will normally involve allegations of breach of statutory duty and/or common-law obligations on the part of the employer, with damages being sought for the injury and associated losses. These claims are costly, often involving awards for past/future loss of earnings, loss of pension and future treatment costs.
The law: employers’ duties
All employers owe a duty of care to their employees to take reasonable steps to not cause foreseeable harm to that person. The general principles emerging from Hatton v Sutherland 2002 still stand, 21 years down the line. The scope of the duty of care involves the basic test of reasonableness. However the standard of care will vary with each set of circumstances and what is reasonable will depend on what a person knows or ought to know, plus what actions are reasonable to take, considering that knowledge.
Different considerations apply in claims which fall under the PHA where the burden of proving harassment has to cross the threshold of severity to amount to harassment under the PHA.
Top tips for employers
Stress symptoms generally fall into three categories: emotional, mental and behavioural. Some signs employers should look out for include but are not limited to:
- Working longer hours, working through breaks, and coming into office earlier and earlier when this is not normal for that employee.
- More irritability, anxiety, and emotional reactions to commonplace comments, or becoming less communicative than usual.
- Visible tiredness, struggling with concentration and memory lapses.
- Reluctance to take time off work for holidays, or on the other hand arriving late and booking more time off than usual.
- Social isolation from things linked to work, for example, out of work activities.
The HSE’s process for employers to help manage the causes of work-related stress is an ideal starting point. Take an overview and assess whether any areas within the organisations might benefit from a more detailed assessment of the risks of stress in the workplace.
Other points for employers to consider involve reviewing internal policies, processes and procedures to check they are clear. This information should be shared with leaders, supervisors and managers, along with training to recognise mental health issues. Importantly employers should adopt a consistent and proactive approach to managing stress within the workplace.
More holistically, consider extending the scope of wellbeing benefits with a focus on health, lifestyle and finance, and changing working arrangements, promoting a culture where staff can talk openly about their stressors.
Many organisations across all sectors have appointed mental health first aiders. Engage and collaborate with other organisations to share ideas and best practice. All of these factors may not only reduce the risk of legal claims, but also contribute to a healthier, safer work environment.
Once a stress-related illness has been identified, then offers of counselling, swift referral to occupational health and risk assessment, along with managing the return to work are steps which can avoid a relapse in mental health. In turn, this should also provide the employer with some protection in the event of a claim for damages.
If an employer can demonstrate the employee received adequate support, training and monitoring post return to work and this continued, this paves the way for a successful defence of the claim and/or may reduce the costs of what might have been a substantial loss of earnings claim.
