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Tuesday 26 April 2022
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:
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.
An employer’s statutory duty is to:
The HSE sets out a process to help manage the causes of work-related stress and the risk. This process involves:
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:
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:
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.
RMP disclosure
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.
If you have a specific query, why not contact a member of our office team directly? We will be pleased to assist you - whatever your question.