An organisation’s ability and skills to recognise and manage stress in the workplace has improved greatly over the last decade.

However, post-pandemic, there is a genuine concern that the different pressures we all face, could have a detrimental impact on our collective wellbeing.

Public sector bodies have been at the forefront of managing the pandemic. The change in working practices is being felt to the extent that Risk Management Partners and Denise Brosnan from DWF, an expert on this complicated and sometimes misunderstood subject, have combined to offer guidance on stress claims.

While organisations actively seek to provide an environment that protects employees from work-related stress, depression, and anxiety, numbers of related complaints may rise. Certain types of occupation are leading to an increased cost for employers.

For example:

• Information published by the Health and Safety Executive (HSE) on 16 December 2021 shows in the years prior to the pandemic, the rate of self-reported work-related stress, depression or anxiety showed signs of increasing. The rate was higher than the 2018/19 levels and accounted for 50% of all work-related ill-health cases in 2020/21. The main work factors are cited to be workload pressures, (including tight deadlines), too much responsibility, and a lack of managerial support.
• A high level summary of the pandemic's impact on mental health and wellbeing of the population in England confirms that those working in health and social care, teachers and childcare, public service and essential services key workers found that during March 2020 to February 2021 key workers reported higher levels of depression and anxiety symptoms.
• The cost of employees suffering from poor mental health is said to cost £45 billion to UK employers each year and has risen by 16% since 2016. These complaints could lead to civil claims, with allegations of being over worked, bullied or harassed. This may correlate with retirement on ill-health grounds, leading to a potential risk of difficulty in replacing staff and creating additional pressures on existing staff.

Claims 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.

Treaty and facultative arrangements

An employer’s statutory duty is to:

• Assess the risk of workplace stress for workers.
• Take appropriate action to have systems to identify the risks to which an employee may be exposed.
• Adopt appropriate measures to control these risks.

The HSE sets out a process to help manage the causes of work-related stress and the risk. This process involves:

• Identifying the stress risk factors.
• Gathering data as to who might be harmed and how.
• Evaluating the risk, exploring problems and developing solutions.
• Recording findings, developing and implementing action plans.
• Monitoring and reviewing action plans to assess their effectiveness.

At common law all employers owe a duty of care to their employees to take reasonable steps to not cause foreseeable harm to another person. The general principle emerging from Hatton v Sutherland 2002 is that the scope of the duty of care involves the basic test of reasonableness. The standard of care will vary with each set of circumstances, so what is reasonable will depend on what a person knows or ought to know, plus what actions are reasonable considering that knowledge.

Other points for an employer to consider are:

• Is there a lack of clarity around internal policies and processes?
• Is there a reactive rather than proactive approach to risk assessment?
• Is there a lack of training of managers in mental health issues?
• Are there difficulties in demonstrating centralised policy?
• Are there cross authority and force discussions on cases where there is a risk of mental health illness, for example, PTSD and vicarious trauma? This requires a consistent and proactive approach to provide mandatory counselling in specific teams involved in higher risk areas of service provision, for example, police and fire and rescue services.

Return to work

There will often be allegations of an employer failing to manage an employee on their return to work following a stress-related absence. The period in which an employee returns to work is a crucial opportunity to avoid later litigation. A further breakdown post-return increases the prospects of an employee succeeding in a claim against an employer. Employers are taken to have been ‘on notice’ of a vulnerability.

Often an employee starts exploring ill-health retirement during their absence, fuelled with receipt of specialist reports recommending ill-health retirement. A valuable opportunity to discuss a positive return to work can be lost as there is little incentive for an employee to engage with the return to work process. The specialist's decision will be relied on in litigated cases to increase the prospects of achieving substantial future loss of earnings.

If an organisation can demonstrate an employee received adequate support, training and monitoring post-return to work and this was continuing, this evidence will pave the way for a successful defence of the claim and/or may reduce the costs of a loss of earnings claim.

Other points that may be of interest:

• Swift referral to occupational health is good practice. Post-referral communication between managers, supervisors, employees and occupational health and human resources helps to evidence appropriate support, checks, measures and balances have been undertaken. Employees will find it difficult to overcome the threshold arguments in a stress claim.
• Interdepartmental communication may help organisations highlight potential hot spots and adopt proactive risk assessment of risk areas to implement additional measures.
• Upskilling of leaders and increased internal communications between departments may have a positive impact to reduce risks. In turn this could lead to a healthier, safer environment for employees.

Denise Brosnan (denise.brosnan@dwf.law) is a Director in DWF’s Insurance Team and Philip Farrar (philip.farrar@rmpartners.co.uk) is National Development Director at Risk Management Partners Ltd. 

RMP disclaimer

This article and related document links do not purport to be comprehensive or to give legal advice. While every effort has been made to ensure accuracy, Risk Management Partners cannot be held liable for any errors, omissions or inaccuracies contained within the article and related document links. Readers should not act upon (or refrain from acting upon) information in this article and related document links without first taking further specialist or professional advice.

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Risk Management Partners Limited is authorised and regulated by the Financial Conduct Authority. Registered office: The Walbrook Building, 25 Walbrook, London EC4N 8AW. Registered in England and Wales. Company no. 2989025

DWF disclaimer

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for legal advice. DWF is not responsible for any activity undertaken based on this information and makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability or suitability of the information contained herein.