In this edition we look at an article from Barlow, Lyde & Gilbert, a leading law firm renowned for commercial litigation and dispute resolution about recent cases where employees have been found to be negligent in stress-related cases. The article, written by Tom Walshaw was published earlier this year in HR Zone and demonstrates what happens when employers are not fully committed to stress management and wellbeing within their workplaces and trinbunals result. The problem lies with the fact that many employers still see employee wellbeing as something rather ‘soft’ and ‘non-essential’. It’s understandable given the constant pressure to constantly achieve improved bottom-line results, but when are employers going to understand that human beings are the lifeblood of business. Without them business suffers and it becomes harder and harder to achieve the motivation and performance required to achieve outstanding results. Without these ‘human resources’ and without commitment to a partnership between employer and employee which encourages a serious approach to wellbeing, not only do organisations reduce their chances of success, they also leave themselves open to claims. Given the current market conditions, this is not a problem that is going to go away. So when are we going to stop putting ‘sticking plasters’ over a gaping wound and start to treat organisational wellbeing with the respect it deserves? Let’s just take a look at some of the consequences of this kind of behaviour covered in excerpts from Tom’s article. "The well known case of Hatton (2002) Court of Appeal was seen by many employers as a blast of common sense from the Court. Lady Justice Hale set out guidelines which, it was supposed, if followed, would make an employer immune from workplace stress claims. But, Lady Justice Hale only ever intended her list to be guidance so, when a number of later cases seemed to weaken the position for defendants, in fact all that was happening was the clarification and application of the principles which was probably always intended. The panacea by which many employers thought they could discharge their duty of care in all cases was by the provision of a helpline. Lady Justice Hale had stated "An employer, who offers a confidential advice service, is unlikely to be found in breach of duty". The existence of such a helpline was dutifully referred to in hundreds of defendants' witness statements and letters of rebuttal to claimants. Daw v Intel (2007) Court of Appeal finally put paid to that. The judges there held that the employer was in breach of its duty, notwithstanding that it provided a counselling service. The existence of a helpline should still be prayed in aid on any case; it is helpful, but should simply be seen as part of the broader package of care that an employer takes for the employee. Then came Dickins v O2 (2008) Court of Appeal which caused widespread concern for defendants. Looking back with the benefit of hindsight, there was little fundamentally surprising about the decision. True, it confirmed that the existence of a helpline was not a "get out of jail card" for employers, but that was nothing new. Commentators seemed to feel that the Court of Appeal had been unduly harsh on O2. However, the claimant came across as a deserving individual, whereas the witnesses for the defendant appeared evasive and were unable to back up their assertions with documentary evidence. The claimant, who had worked for the defendant for many years, began to suffer increasing mental problems and stress, and requested help. She expressly asked for a sabbatical on a number of occasions, requested to be moved to a less stressful job, and told her employer that she was at the end of her tether. She was unable to come into work on time due to her mounting distress, and although a referral to occupational health was promised, it was not done quickly and this general lack of assistance tipped her over the edge into a mental breakdown. The Dickins decision was based on a catalogue of unfulfilled promises by the employer. In a further case, the claimant won in Connor v Surrey County Council (2009) High Court. The winning headteacher had led her school through a period of very traumatic conflict with some members of the school's governing body. She was subject to public humiliation and threats. The judge held that the defendant did not do enough to support her. The crucial factor for the judge was the numerous warnings of impending threat to the claimant's mental health - there were various e-mails and oral warnings from both the head and her colleagues. The judge found the claimant to be a deserving witness, whereas his impression was that the defendant's witnesses were of 'varying quality'. He found, quite simply, that the Local Education Authority staff should have been quicker to step in and offer the claimant managerial support, in addition to the offers of counselling and occupational health assistance to her. In conclusion, it is in the nature of litigation that judges differ in their approach to cases. Decisions will hit the headlines but, as with many claims, there is often a good dose of media hype. With stress at work cases, the starting point remains Hatton, and an employer must show a careful, considered, well documented response when it becomes aware that it has a distressed employee in its midst. And it must be alert to warnings from whatever source they come." It’s interesting that the issue of documentation comes up and it’s clear that employers need to be able to show that they have responded to any hint of impending ill-health when the employer and employment is cited as the cause. As a specialist in Stress Management and Wellbeing, I clearly know and understand the benefits of counselling and support it as a means of improving performance and wellbeing 100%. However as these cases demonstrate, coaching and counselling are only one aspect of addressing wellbeing in the workplace. Employers who are serious about maintaining the wellbeing of their staff need to have a Wellbeing/Stress Policy in place which is communicated widely to staff. This usually brings a gasp of horror from corporate clients when they consider how many of their team will ‘jump on the bandwagon’ and be absent due to stress. However in my experience, the opposite is actually true. People are generally afraid to admit when they are suffering from undue stress because they’re afraid it may reflect badly on their future career. However, if we can accept that, as managers and owners, that an admission to undue stress is a method of the understanding of the negative impact the individual is having on their work and probably their team and the business, we ought as employers, be able to be big enough to provide relevant support which gets this person back on track and working productively and enthusiastically, without prejudice. So what can you do? Here are a few suggestions that I (and the HSE incidentally) believe every employer could and should adopt: 1. If you don’t already have one, make sure you have a Stress/Wellbeing policy and include it in your intranet system and staff manuals. Your employees need to be aware of what they can do and who they should approach if they feel they are suffering from undue stress. 2. Whether it’s HR, line management or a mixture of the two, whoever is responsible for identifying undue stress in your organisation needs to be trained in understanding the basics of why undue stress is a serious threat to your business, how they spot the signs and what they can do about it. I run Workshops on this and if you’re interested in knowing more, please contact me on 0772 581 8884 or email me on [email protected]. 3. Do include coaching and counselling in your armoury of stress-beating tools. They are valuable and can help develop your staff so that they become more productive. They can also help ‘weed out’ those that would perhaps be suited to other types of work or work with a different organisation. 4. You may have an Occupational Health Specialist in your organisation, but their training will be broad – it’s a huge subject - and you cannot expect them to be fully versed in all aspects of stress management and wellbeing. There are specialists, such as me, who are trained specifically in these and are happy to work alongside your Occupational Health personnel. 5. Monitor absences and if there are signs that employees are suffering from undue stress, document your interaction carefully with these members of staff and take relevant action. 6. If you have members of staff who have previously left citing undue stress as one of the reasons for leaving, if you have had people that have threatened to take you to a tribunal or if you have previous history of being taken to stress-related tribunals, you have a problem and need to sort it out before you get into costly, time-consuming and yes – stressful – industrial tribunals… …unless of course, you’re willing to continue to take risks with your employees health and the long-term health and wellbeing of your business. If you are happy with that situation, better watch your bottom line carefully. It’s likely to get hit for some big compensation claims.