Wednesday 13 May 2020

Work-related stress is increasing during this global crisis. Media reports give some indication of the pressures for keyworkers and the huge emotional strain on employees and volunteers. Time will only tell the effects of work-related stress experienced by those delivering public services during the COVID-19 emergency.

In 2018 a survey of 3,000 workers conducted by employee benefits platform, Perkbox found that, while the finance sector was most affected by stress at work, (with 69% of employees saying they felt stressed) government employees followed closely at 68%.

Well before this pandemic, the risk posed by occupational stress to councils seemed to be under-reported. One council, the subject of a Freedom of Information Request, reported 20,000 of the 68,000 sick days registered in the year to June 2019 were attributed to stress. For this particular council, the overall number of sick days declined since 2016, while those related to stress increased.

The reporting of stress at work may have increased due to heightened awareness and acceptance of stress-related illness. A shift in the public perception of mental health, means stress and mental illness are no longer stigmatised as they once were.

Early recognition of mental health issues should lead to better management, treatment and support. However, this does highlight the need for public service providers to ensure their strategies for  managing stress are robust.

Policies, risk assessments, prevention and intervention measures need to be updated, with staff trained regularly. Many organisations will have wellbeing programmes for employees, which constitute an important part of risk management. Employees are now more forthcoming to employers about work-related stress. Some have also been forthcoming about making claims to employers too. The development of increased reporting by employees of stress in recent years has impacted the once insurmountable hurdle of ‘foreseeability’ (in light of guidance from the Court of Appeal in Hatton v Sutherland [2002]).

In a changing mental health environment, employees can more easily prove a council’s ‘actual knowledge’ of impending harm, due to documented complaints such as sick notes. Also employees will have better prospects of establishing ‘constructive knowledge’ because of rising expectations of what should have been foreseen.

The present legal test requires impending harm to health arising from stress at work must be plain enough for a reasonable employer to realise they should do something about it. However modern working practices such as agile, flexible and homeworking present challenges, especially when  forced upon both employers and employees by virtue of COVID-19. Particular attention should be focused upon maintaining remote supervision and dialogue so as to avoid becoming wilfully blind to circumstances that should have been discovered. The key focus should be upon communication and support to ensure that everyone is aware that they are not forgotten .

In normal circumstances, councils should evidence their good practices and adopt sensible claims defensibility measures when carefully defined ‘trigger events’ occur and take care to follow internal procedures when managing a return to work that may require ‘reasonable adjustments’ or when dealing with a ‘grievance’.

In these exceptional times, councils should also evidence the reasons for their decisions, their acts and sometimes inactions. For example demands upon technology and the availability of staff will likely present pressures. It would be sensible to retain accessible evidence of steps taken to add IT resource and modify targets.

Failure to exercise foresight and consider claims defensibility when dealing with what may otherwise be considered mundane operational matters will  put councils at risk of significant financial liability and could lead to staff absence and diversion of resource. This will impact on service delivery and with it, the potential for a vicious circle of departmental stress, with associated consequences.

Matt Atwell, Associate, Disease Team, DAC Beachcroft LLP (matwell@dacbeachcroft.com

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