In many organisations, there is a long-established pattern. Conscientious employees are placed under increasing pressure and experience escalating levels of stress until they become seriously unwell.

In preparation for World Mental Health Day on 10 October 2021, Charlie Thompson reviews what employers can do to limit workplace stress and the legal rights for employees put in unreasonable situations.

The perils of workplace stress

Previously healthy employees can develop conditions such as depression, anxiety disorders, adjustment disorders, chronic fatigue and heart conditions. Careers are cut short, and lives are ruined. Everybody has at least one friend or family member to whom this has happened. The causes can be varied, including work demands, the pressures of seeking a promotion, bullying, and mishandled internal processes such as disciplinary procedures.

In these situations, the employer typically exits the individual on confidential terms, and the pattern is repeated.

Employers and employees have become more knowledgeable about health and wellbeing in recent years. It is generally understood that pressure is normal in any job and that it can bring out the best in employees as well as giving them a sense of job satisfaction. It is also widely recognised that excessive demands can lead to stress, disruption to circadian rhythms, sleeplessness and changes in diet, which can provide fertile ground for illness.

How are employers addressing this?

Accordingly, the health and wellbeing offerings from employers have never been more sophisticated. It is increasingly commonplace for employers to offer things such as confidential helplines, mental health first aiders, wellbeing seminars and access to counselling and fitness providers.

While these are welcome in giving employees strategies to deal with stress or helping them develop resilience, they do not deal with the elephant in the room, which is the cause of the stress in the first place. Indeed, the presence of wellbeing perks can sometimes make an employee who is too busy to use them feel worse.

Also, these perks do not necessarily protect the employer. Employers have a legal duty to take reasonable care of their employees. This includes providing a safe place of work and a safe system of working. In addition, all employment contracts contain a mutual term of trust and confidence. Where an employer is placing unreasonable demands upon an employee, and it is clear there is a risk of harm, free yoga classes are unlikely to show that the employer has done enough to meet its duties.

The pandemic has complicated the situation further. While increased home working, which will surely stay in some format post-pandemic, has been broadly successful, it blurs the distinction between work and home. Working hours can end up being longer, and employees feel under more pressure to respond to emails sent at anti-social hours. Conscientious employees who are more vulnerable to stress and overwork are particularly at risk. Importantly, an employer’s duties to an employee are not lessened if the employee is working from home.

A claims boom waiting to happen?

The leading authority on workplace stress claims, Hatton v Sutherland (2002), was decided nearly two decades ago. Since then, our attitudes towards work and mental health have changed. So too has the way in which we work. Some of the Hatton principles, such as the rule that no job is inherently susceptible to stress, may be revisited in the coming years. In addition, the point at which an employer is under a duty to take further steps to take care of an employee’s health is likely to be viewed through a 2021 lens.

Whether or not we will see a rise in cases of this nature remains to be seen, but the conditions are all present for a surge. Employees who have serious stress-induced breakdowns at work may have significant claims against their employer. Damages can be sought for both financial and non-financial loss, and where the employee can no longer work at the same level, the claim may be for the loss of career.

Employers should ensure that they have systems and controls in place to monitor and address stress. This means more than the usual suite of policies, risk assessments and wellbeing benefits, although those are a good start. It involves proactive monitoring of activity levels, with a meaningful mechanism to intervene if an employee is working too hard. This inevitably means ensuring that the HR department is sufficiently empowered and that the employer is not overly reliant on the skills of a small number of hard-working individuals. Organisations need to proactively manage their recruitment and talent pipeline accordingly.

In addition, employers should ensure that line managers are equipped to spot issues before they escalate and empowered to address them. In these cases, the principal antagonist is typically a line manager under pressure from the manager above them to deliver.

Employees worried that they are approaching a crisis or already in the middle of one should seek urgent medical and legal advice.

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