Sickness and stress

4 April 2002



Robin Rhodes examines employers' responsibilities for their workers health and the problems of dealing with stress at work


Health is one of the most discussed topics in British society and stress commands such attention that it seems to be a headline in its own right.

At an individual level there are few who do not contemplate their weight, fitness, diet or general health with some concern in light of the increased physical and mental wear and tear inflicted by the pace of modern life.

But, equally, in our society employers attract new and often ill-defined responsibilities like unwilling magnets, and no more so than in their wide-ranging duty of care for their employees' health. Stress peppers discussions at all levels, yet proves elusive to define and quickly reveals society's ambivalence to mental health.

Before tackling such a vexed and specific health topic, it is helpful to review the current state of affairs concerning health in employment in a wider context, and some of the excellent guidance available on the topic.

Few employers, if any, are able to calculate the true cost of employee absence, but all believe it to be substantial and disproportionate in its effects, not only on profits but also on productivity and customer service. The best guess as to cost is that it falls between 3% and 9% of the total payroll cost.

Big problem

It has been shown that the average number of days lost per employee is substantially greater in large organisations than in small businesses, but the impact of employee absence in a small business can be disproportionately damaging.

An employer's legal obligations in health matters can be most easily identified if we look at the subject in four separate categories:

• frequent short-term absences

• longer-term absence

• disability

• the employer's overriding duty of care towards an employee.

Most absence problems fall into one of the first two categories and employment tribunals readily recognise the need to deal with each category differently.

Frequent short-term absences cause by far the greatest organisational problems. Their effect is aggravated in that they may be attributable to a number of different unrelated illnesses, may be intermingled with short-term absences not related to illness and are often not reported properly to the employer and will rarely require a medical certificate.

Add to these difficulties any doubts about genuineness and we now have one of the largest causes of employee relations friction in the UK.

Medical opinion is unlikely to cast much light on this sort of problem, though questions about any underlying medical condition should be asked.

A much more effective way of dealing is persistent tracking of the problem based on good, current records, using return-to-work interviews and making sure the employee is aware of the consequences of a continuing poor record.

Identify the problem as one of unreliability rather than health and remember that not tackling it will send all the wrong signals to employees with a good attendance record.

This is not the case with longer-term sickness absence, necessarily covered by medical certificates and usually attributable to one medical cause.

Well before any decisions about termination are contemplated, you will need to gain medical opinion about the prognosis, whether from the employee's GP or your own medical adviser. A face-to-face discussion with the employee is strongly recommended. The nature of the employee's job, and therefore the urgency with which the employer may need to act, is another important consideration.

Making changes to the job to help the employee return to work (such as a short initial period of part-time working before resuming full time) should also be considered, as should the availability of alternative work.

Illness or disability

These factors become even more important if the illness could be seen as a "disability" in that it has a substantial and long term adverse effect on the employee's ability to carry out normal day-to-day activities, in which case employers are required to make reasonable adjustments to accommodate the employee's disability.

We now have most of the key considerations for a better understanding of the thorny question of handling stress. First, though, I should point out two simple steps that employers can take to significantly reduce the potential absence problems of new employees.

First, even if you do not use an application form for prospective employees, make sure that you always ask questions about their health before offering the job. "Have you suffered from any medical condition over the last few years which has led to your losing time off work and, if so, how much time was lost?"

"Do you have any medical condition which could give rise to your losing time off in future?" Written and signed replies are preferable but oral, witnessed answers would still be of help.

Secondly, be clear about the criteria you will use to judge success or failure during a probationary period (realistically, this should be six months). Include among them the need to be reliable on attendance, notification of absence and timekeeping. If you do this there will be no surprises if you later criticise and/or dismiss a worker for these reasons.

Both statutory and common law necessarily cover both physical and mental illness and therefore have a role to play in the handling of problems of stress: statutory law mainly through the Health and Safety at Work Act and the Disability Discrimination Act, and common law through the employer's duty of care.

Absence management

One of the most important recent surveys of absence management places stress as the second commonest cause of absence, after colds and minor ailments but ahead of uncertified short-term absence. Absences caused by stress are twice those attributed to back injury. These are startling statistics, given the reluctance of many people, employees or not, to admit to suffering from stress.

The next concern, which often divides employers and employees although as we see later it is nowhere near as significant as some feel, is liability for the stress.

Is the stress work-related or caused by other factors such as the employee's financial or domestic circumstances? In practice, stress may well be both, and may even be a product of a fault in an employee's "work-life balance" .

What are an employer's obligations in this opaque area? Stress, including its stablemates, anxiety and depression, is a potential health hazard in many jobs, particularly but not confined to, those with greater responsibility.

As such it should be the subject of normal risk assessment: identifying any reasonably-foreseeable risk by looking for pressures at work that could cause high and long-lasting levels of stress; deciding who could be harmed by these,then asking whether enough is being done to prevent that harm and, if necessary, taking reasonable steps to deal with those pressures.

The sources quoted here will give much more detail about this assessment process, but the following seven elements give a real flavour of the task: 

•  the culture of the business (communication, blame, excessive hours)

•  the demands of the job (volume of work, training, monotony, environment)

•  control (degree of control over activities); relationships (with colleagues, bullying, harassment)

•  change (pace, uncertainty, insecurity)

•  role (conflicting demands, confusion)

•  support (from managers and colleagues).

It would be naive not to realise that these uncover some of the less attractive facets of an economic society which is increasingly competitive, faces ever-faster change, and demands results and "making things happen" of all of us.

Compensation appeals

In early February the Court of Appeals judgement given in three appeals by employers against compensation awards totalling over £200,000 for work-related stress, was widely reported and received much public attention.

The Court allowed the appeals and in a most important decision made the following crucial determinations.

First, employees claiming such damages must be visibly suffering from pressure at work and the signs of stress must be plain enough for any reasonable employer to realise something must be done.

Secondly, that "if there is no alternative solution, it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable."

Finally, employers are entitled to take at face value what their employees tell them without further searching enquiry and may usually assume that the employee can withstand the normal pressures of the job unless they know of some particular problem.

For personal injury claims under common law this robust verdict has provided much valuable clarity, and no doubt it will have an effect on the decisions of employment tribunals even though their responsibilities under the Disability Discrimination Act are significantly different.

In addition, the knowledge needed to tackle the job of minimising work-related stress is now much more readily available. Its application only requires modest diligence and the benefits gained in terms of reduced costs, increased productivity, better customer service and a happier workforce are very substantial.



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