1 Managing Stress & Absence in the Workplace
2 Why should businesses be concerned? Common cause of absence Cost of absences due to stress Management of business Lack of training
3 What is stress? HSE "adverse reaction people have to excessive pressures or other types of demand placed on them". Framework Agreement by European Social Partners "a state, which is accompanied by physical, psychological or social complaints or dysfunctions results from individuals feeling unable to bridge a gap with the requirements or expectations placed on them". Distinction between "pressures" and "stress".
4 HSE Management Standards: Stress Risk Factors Demands workload, exposure to hazards. Control over the way the employee carries out work. Relationships issues of bullying and harassment. Change how change is managed and communicated. Role does the employee understand their role and are there conflicting job demands. Support training and factors unique to the employee.
5 Legal Framework Health and safety legislation Health & Safety at Work Act Common law tort negligence (namely personal injury claims). Working hours Working Time Regulations Disability discrimination Equality Act Discrimination / Harassment / Bullying - related to protected characteristics. Protection from Harassment Act 1997 Contract breach of express or implied terms. Unfair dismissal.
6 The Reason for the Absence Sutherland v Hatton 2004: guidelines for stress-related illness cases. 1. What has caused the stress-related illness? 2. Was a stress-related illness foreseeable? 3. What action has been taken by the employer?
7 Foreseeability Work Performance - declining or inconsistent performance, uncharacteristic errors, increased time at work, loss of control, loss of motivation, errors. Withdrawal - arriving late/leaving early, absenteeism, resigned attitude, elusiveness, evasiveness Regression - crying, arguments, undue sensitivity, moodiness, irritability, personality clashes, immature behaviour, over-reactions Behaviour malicious gossip, criticism of others, vandalism, shouting, bullying, harassment, outbursts, high temper, poor relations Knowledge - complaints made, medical notes, pattern of behaviour, previous period of illness
8 Breakdown & Overwork "Workload stress". employers generally entitled to assume an employee can cope with the normal pressures of job. can take employee's actions at face value. correct test is not simply that it was reasonably foreseeable that overwork would result in an employee suffering from stress but also that it would lead to illness. (Bonser v UK Coal Mining 2003 EWCA Gv 1926). "Foreseeable"? signs of stress that employer should have picked up on? has employer been put on notice of the employee's workload or stress? Complaint of excessive workload? Breakdown at work / home? Absences? History of stress?
9 Young v Post Office 2002 Only 7 weeks after his return to work in September 1997, following a period of absence due to his depression, Mr Young was absent again as measures intended to be put in place as a safety net had not been implemented. Held: there was a breach of duty of care, due to the failure to ensure measures had been implemented. Injury to Mr Young was foreseeable as he was a vulnerable employee with a history of stress related illness. Bonser v UK Coal Mining 2003 Ms Bonser became distressed at work after being asked to complete additional tasks prior to her taking a planned holiday. Held: Employer did not need to take steps to avert an imminent breakdown as the degree of distress shown was not such that a breakdown was foreseeable.
10 "Specific Trauma Stress" "Specific trauma stress" resulting from a particular incident at work: is the employer aware of some particular problem or vulnerability? if there is something specific about the job or the employee, or both, the employer is obliged to consider this relevant to the question of foreseeability. Hartman v South Essex Mental Health & Community Care NHS Trust & Others 2005 EWCA Civ 6 prison officer suffered psychiatric injury after attending to bodies of several inmates who had committed suicide. foreseeable, as likelihood of illness had been considered and system of post incident care devised (although not implemented).
11 Stress arising from Bullying and Harassment Claims brought under the Protection from Harassment Act County/High Court, not Employment Tribunal Employer liability for the acts of its employees Suffered 'anxiety' or 'distress' as a result of the harassment Harassment claims brought under the Equality Act 2010 Single incident can be enough "reasonable steps" defence available
12 Discrimination Disability Discrimination - Question of whether stress can amount to a disability must focus on the effect the impairment has on an employee's day to day activities in general. - Good practice to assess questions of impairment and adverse effect separately- J v DLA Piper UK LLP Adverse effects- last, or likely to last for one year- most event specific forms of stress unlikely to qualify. However, important to obtain medical opinion. Reasonable Adjustments - Duty applies where employer knew or could reasonably be expected to know of disability and substantial disadvantage. Non acceptance of adjustments made: there need only be a "prospect" of the adjustment succeeding for it to be reasonable. (Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10)
13 Examples of Reasonable Adjustments Staggered return to work Varied start and finish times Reallocating an employee's duties Reallocating an employee's work station Extra supervision Independent confidential counselling Continuing sick pay beyond contractual obligation
14 Managing Short Term Absences Return to Work: - Return to work interviews - Identify any underlying issues which may be the cause of the absences - Speak to line managers/supervisors Monitor Sickness Absences: - system in place to note absences - any pattern to absences? Invoke Disciplinary Procedure where necessary: - warnings/ possibility of dismissal may reduce number of absences - Clear message that absence and capability policies will be followed
15 Managing Long Term Absences Keep in contact with the employee Remain updated- diarise dates to contact employee, chase for fit notes to cover period of absence. Obtain advice from Occupational Health/ GP Planning a return to work with the employee, with the support of OH/GP Suggesting and Implementing workplace controls and reasonable adjustments
16 Capability Employers can rely on reason of capability with a longterm sick employee, provided any dismissal is fair. Ensure process is followed: employee consultation impact on business prior warning given / employee aware of employer's requirement and continuing failure to comply adequate investigation obtaining medical prognosis Alternative position available? McAdie v RBS 2007 EWCA Civ 806 Court of Appeal agreed with the EAT that an employer should make more effort to find alternative employment / put up with a longer period of sickness, where the employer is responsible for employee's ill health.
17 Redundancy Employees on long term sick leave can be included in redundancy process. Important to be kept informed and involved in consultation process. Accommodate requests for flexibility meetings at home or outside office hours, consult by phone / letter. Breaking bad news- ACAS Guide "The role of the teller"
18 Stress Arising from Disciplinary Proceedings Need to resolve matter speedily vs employee fitness to attend hearing. Could reason for ill health (stress / depression, etc) have caused or contributed to the misconduct? If so, appropriate to waive / suspend disciplinary proceedings? Medical advice re: employee fitness to attend meeting consult GP / Occupational Health Physician. Ensure fair process: investigate reason for absence sufficient warning of the consequences compliance with policies in place?
19 Employee Co-operation Reluctance / refusal to attend meetings: suggest alternative date / location / time obtain medical evidence re: fitness to attend continue without meeting in attempt to conclude process will need to be thorough with investigation and informing employee of consequences of delay / non-attendance Consent withheld for obtaining medical report: persistent refusal to provide necessary consent can employee be fairly dismissed? (Elmbridge Housing Trust v O'Donoghue 2004 EWCA Civ 939) Yes, however, look at circumstances overall
20 Stress at Work Policy Stress at Work Policy Guidance on dealing with effects of stress Clear channels of communication and effective methods of reporting concerns References to relevant policies: Sickness absence policy Capability procedure Harassment and bullying policy Internal and external sources of support
21 Occupational Health Advisable to consult an Occupational Health Physician to obtain medical report rather than a GP. Independent advice on employee's health and measures to implement to facilitate a return to work OH input is regarded as being most effective when dealing with long term illness- assistance with management of sickness absences Lack of access to OH found to be a significant barrier to good sickness absence management.
22 TW Recommendations Stress Policy in Place Access to Occupational Health Return to work interviews Consultation with employees prior to changes in the business Performance management system in place and being followed- appraisals undertaken with employee given a chance to raise concerns Training for staff Work review meetings to discuss workload
23 Why Businesses Should Be Concerned About Stress In The Workplace 2004 Department of Health white paper stress related conditions one of the most common causes of work-related sickness absence Absence Management Survey conducted by the Chartered Institute of Personnel & Development (CIPD) stress now the most common cause of long-term sickness for both manual and non-manual employees. Health & Safety Executives (HSE) estimate that: million working days were lost in 2010/11 due to work related stress. - Each new case of stress leads to an average of 31 days off work. - Cost to society of 3.7 billion every year (calculated at 1995/96 prices). Awards At Tribunal for Stress Related Claims 387,778 Employer's failure to take steps to decrease employee's stress after a period of two years of anxiety and low morale. Failure to consider risk of psychiatric injury (2010) 109,754 Psychiatric injury negligently caused by excessive stress in the course of employment employee worked long hours in a stressful job with no training given, developed IBS, requests for time off not considered- calculated damages reduced by 50% for non tortious factors (vulnerability, IBS) (2009) 134,545 Personal injury as a result of work-related stress- employee suffered from stress and chronic depression- complained of confused reporting lines, demands by different managers and insufficient assistance complaints raised, injury foreseeable (2007) 150,000 Damages for accountant who suffered a depressive illness caused by workplace bullying by the finance director which occurred for two and a half years (2005) 795,333 Awarded to employee who was frequently subjected to foul and abusive language and threats of dismissal by his manager, who used every opportunity to voice disapproval of the employee and launched a hysterical attack in front of others for trivial mistakes (2004) 72,547 Failure to make enquiries upon return to work of employee suffering from depression and stress and not making any reasonable adjustments such as reduced workload- employee had made it clear that he was suffering and had himself arranged meetings with his employer but employer did not take any action to reduce workload or assist employee (2004)
24 CASE STUDIES
25 Case Study 1 Part 1 You are a HR Manager for a Sales Company. Marie, a Sales Representative, has been on sick leave for 7 days, following an incident that occurred in the office last week. The workload of all sales staff had increased this August, due to planned attendance at a product exhibition in September. Marie has been working in excess of 60 hours a week in order to complete her current work in time. Upon being given further work to complete prior to the exhibition, Marie burst into tears. Marie had previously complained about her workload at a sales meeting, along with a few other staff members. She was told at that meeting by the Sales Manager that the workload was expected to decrease significantly once the exhibition was over. Marie has now provided a fit note, which cites a nervous breakdown due to stress as the reason for her absence and that she will be off work for at least 6 weeks. How should the Company manage her sickness absence? Part 2 Marie has now been on sick leave for an 8 month period. Her workload has been shared between other sales staff. However, due to an upcoming exhibition, the workload for sales staff is expected to increase in the next few months. The Company will need to employ someone else to fill Marie's role. The Company has tried to arrange meetings with Marie in order to discuss a possible return to work. However, Marie has stated that she does not feel up to attending any meetings. Marie's GP has noted in the fit note that Marie is not likely to be ready for a return to work in the near future. Discuss how the Company should proceed.
26 Case Study 2 Part 1 David is employed as Billing Supervisor for the Company. David is returning to work after a long period of sick leave. David had complained of stress due to lack of support from the Accounts team and having to do other people's work as well as his own. David claimed his condition was aggravated as a result of colleagues not taking him seriously and ridiculing him. David is concerned about being laughed at by those same colleagues upon his return to work and is worried that he will not be supported by the Accounts team. Discuss the Company's obligations towards David and the steps that can be taken to ensure the Company has complied with its obligations. Part 2 David has been involved in an incident with Phil, a colleague in the Accounts department. David claims he was provoked by Phil stating he was 'mental' and had 'a few screws loose' in front of the whole department. David reacted to Phil's comments by pinning him against the wall. Phil has subsequently complained of David's behaviour and others in the Accounts department have said they feel frightened of David. David has stated that he has been bullied by Phil since his return to work and alleges that Phil, along with a few others in the department, have said to him that they will make sure he is out of a job. Evidence has emerged that suggests that Phil has been leading other employees to make fun of David and sabotage his work. Upon being invited to an investigation meeting to discuss this, Phil has been absent from work, claiming anxiety and stress from being made to work with David and due to the incident above. Discuss how the Company should proceed.
27 Case Study 3 Lisa works as a Buyer for the Company. Lisa has always been a hard worker and is a valued member of the department. However, recently Lisa has had a number of days off sick. She has also arrived late to work in the mornings on several occasions. Her colleagues are starting to complain about her 'getting away with murder'. Last week, Lisa was late for a meeting with an important client of the Company. She said she forgot about the meeting as it wasn t in her diary. Lisa's manager is concerned about the backlog of work Lisa has yet to complete and feels that Lisa has lost interest in her work. He is aware that Lisa is currently going through a difficult divorce and has had to move out of her home. Discuss how the Company should manage the situation.
28 Case Study 4 The Company is in the process of making redundancies within the Sales department. Marie (see case study 1) has not yet returned to work. Steven, a sales rep, has taken the news of the decision to make redundancies badly and has been off work with depression and stress ever since the department was first informed of the decision. Steven has had the lowest amount of sales in the past year within the department. Meena is the Sales Manager for the Company and is therefore heavily involved in the redundancy procedure. She is finding it difficult to deal with the department and has complained of the amount of pressure she is under. Meena has a very good working relationship with her department and is friends with many of the sales representatives. She is upset at the idea of having to break the bad news to the employees selected for redundancy. Discuss the Company's position in relation to Meena, Steven and Marie.
29 Meet the Team Biographies Heather Cowley Partner & Head of Employment Department Heather was a founder partner of Myers Cowley and was previously with Fennemores Solicitors in Milton Keynes. Heather joined Taylor Walton in November She is accredited in the Legal 500 as a specialist in the field of employment law and now advises the firm s major commercial clients on employment issues. Tel: Alec Colson Partner Before joining Taylor Walton in April 2007 Alec worked at Irwin Mitchell Solicitors in London as an employment lawyer with particular interest in discrimination law. Before qualifying as a solicitor he was an employment adviser and a regional manager with the British Medical Association and head of its Advocacy Unit. Tel: Debra Wetters Solicitor Debra qualified as an employment lawyer with a leading City firm and prior to joining Taylor Walton in 2012 was practicing in Oxfordshire. Debra advises on the full range of employment law issues, employment tribunal proceedings and employment and pensions aspects of commercial transactions such as share sales and business transfers. She is a member of the Immigration Law Practitioners Association and a specialist in corporate immigration matters. Tel: Nicola Smyrl Solicitor Nicola joined Taylor Walton as a trainee solicitor in 2007 and qualified into the Employment Department in September Nicola advises both employers and employees on a wide range of employment related issues including disciplinary, grievances, workplace polices and procedures and redundancy programmes. She also acts for both individuals and commercial clients in employment tribunal claims. Tel: Mehwish Khan Solicitor Mehwish joined Taylor Walton as a trainee solicitor in 2008 and qualified as a solicitor in Mehwish advises both employers and employees on employment related matters including unfair dismissal, discrimination, redundancy, grievance and disciplinary matters as well as advising on workplace policies and procedures. Tel:
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31 HR Workshop Managing Stress & Absence in the Workplace. Case Studies : Points to Note Case Study 1 Part 1: Managing Marie's short term sickness absence: Workload Stress An employer is entitled to assume an employee can cope with the normal pressures of the job Was it reasonably foreseeable that any overwork would result in Marie suffering from stress? Was it reasonably foreseeable that any overwork would lead to a stress related illness? - Marie had raised complaints about her workload at a sales meeting. However, this does not mean that stress related illness was foreseeable at that stage. - Marie burst into tears upon being given further work- coupled with Marie raising complaints at a sales meeting this should put the Company on notice of the fact that Marie may be stressed. Managing Short term sickness absence The Company should acknowledge the fact that Marie has provided a fit note and will be absent from work for six weeks. The Company should look into Marie's sickness record to look for any patterns to any previous absences. The Company should conduct a return to work interview when Marie is back at work, in order to identify any underlying issues which may be the cause of the absence and to discuss any support that can be provided to her. Marie's manager should be spoken to, to ascertain whether there are any underlying issues which may be the cause of the absence and to ensure that the manager is aware of any steps to put into place to support Marie upon her return to work. Part 2: Managing Marie's long term sickness absence: Fitness to return to work Obtain medical evidence in relation to Marie's fitness to return to work. Advisable to consult an Occupational Health Physician rather than Marie's GP to provide a medical report. In accordance with any recommendations of the medical report, plan a return to work with Marieincluding meeting with Marie to discuss any return to work, reasonable adjustments that can be made to assist Marie and putting in place a support system for Marie. If Marie persistently refuses to cooperate with providing consent for a medical report, the Company may be able to consider dismissal as a result. Reluctance/refusal to attend meeting to discuss return to work Give Marie an opportunity to attend, by suggesting an alternative date or time. Obtain medical evidence re Marie's fitness to attend a meeting. Continue to consider Marie's return to work without meeting with Marie in an attempt to decide whether a return to work is possible- Marie should be given opportunities to attend meetings and
32 should be clearly informed that the consequences of any delay or non attendance at the meetings could result in dismissal. Case Study 2 Part 1: Company's obligations towards David Reasonable Adjustments to consider to assist David Staggered return to work Weekly meetings with Manager, to discuss workload and provide support Independent confidential counselling Other Actions Training for managers in relation to stress, harassment and bullying Training for other staff in relation to harassment and bullying Ensure staff are aware of the consequences of harassment and bullying and refer to Company policies in this regard Part 2: David and Phil The Company should follow their disciplinary process, including conducting an investigation into the incident and meeting with David, Phil and others present. In relation to Phil's absence from work since being invited to an investigation meeting, the Company should consider Phil's fitness to attend any meetings, including obtaining medical advice from his GP or Occupational Health. However, the Company would be reasonable in taking the position that this matter needed to be resolved speedily and require Phil to attend a meeting. The Company could suggest Phil attend a meeting at a neutral location to make him more comfortable. If Phil refuses to attend a meeting, the Company should continue their investigation and any subsequent action without meeting Phil, however the Company should ensure Phil is given the chance to provide written representations, attend any further meetings and is informed of the consequences of his non-attendance. The Company will need to take disciplinary action against David in relation to his assault on Phil. The Company should consider dismissal, considering the seriousness of David's actions and the fact that others in the department are afraid to work with him as a result. The Company will need to take disciplinary action against Phil in relation to his behaviour towards David. The Company should consider dismissal, if it has evidence to show that Phil sabotaged David's work and that he has been bullying David. The Company will also need to consider disciplinary action against other employees who were involved in sabotaging David's work and bullying him. Case Study 3 The Company should conduct return to work interviews after a period of sickness absence - this may identify any underlying issues Lisa may have The Company may need to invoke disciplinary procedures in relation to Lisa's absences from work and the backlog of work she has yet to complete. However, as the Company is aware Lisa is currently going through a hard time and considering she has always been a valued member of the team, it may be a good idea to have an informal meeting
33 with her in the first instance to make her aware of the Company's concerns. The Company should also discuss any support that can be given to Lisa which may assist. Case Study 4 Marie Despite the fact that Marie is on long term sick leave, she can be included in the redundancy process. The Company should ensure that Marie is at risk of redundancy for the right reasons and not just because she is on sick leave. The Company should consider how Marie should be marked in relation to the selection criteria - e.g. any scores given for absences could be amended to not include her current period of absence or any scores in relation to financial performance could be based on her figures for the previous year. Marie should also be kept informed of the process throughout and the Company should ensure she is consulted with. The Company should try and accommodate any requests from Marie where possible eg. Meeting with her at home or outside office hours or consult with her by phone or correspondence. Steven The Company should consider Steven's fitness to attend any meetings, however the fact that Steven is absent from work due to stress does not mean he should not be included within the redundancy process. Steven should be kept informed and consulted with throughout. The Company should try and accommodate any requests for flexibility by meeting Steven at home or outside office hours or by consulting with him by phone or correspondence. Meena The Company should refer to the "The role of the teller" section in the ACAS Guide on Redundancy which provides guidance on the subject of breaking bad news. The Company should ensure Meena is provided with support in relation to her role in the redundancy process. The Company could support Meena by doing the following: - Keeping Meena fully informed as to the need for redundancies and the plans of the Company - Attempt to support Meena in her role as Sales Manager, to ensure she is not overworked as a result of the extra pressure on her due to the redundancy process. - Providing her with training or resources in relation to dealing with redundancies. Effective Solutions for Businesses
34 Quick Guide for Managers: Recognising Stress 1. What is Stress? adverse reaction people have to excessive pressures or other types of demand placed on them 2. Common causes of stress in the workplace Demands excessive workload, exposure to hazards. Control over the way the employee carries out work. Relationships issues of bullying and harassment. Change how change is managed and communicated. Role does the employee understand their role and are there conflicting job demands. Support does the employee have access to training and other support. 3. Signs that an employee is suffering from stress Work Performance - declining or inconsistent performance, uncharacteristic errors, increased time at work, loss of control, loss of motivation. Withdrawal - arriving late/leaving early, absenteeism, resigned attitude, elusiveness, evasiveness Regression - crying, arguments, undue sensitivity, moodiness, irritability, personality clashes, immature behaviour, over-reactions Behaviour - malicious gossip, criticism of others, vandalism, shouting, bullying, harassment, outbursts, high temper, poor relations Knowledge - complaints made, medical notes, pattern of behaviour, previous period of illness If you are concerned that a member of your team is suffering from stress at work you should seek advice from the Human Resources Department Effective Solutions for Businesses
35 Example of a Standard Stress Policy This example policy is provided for general guidance only and the content of the policy does not constitute general or specific legal or other professional advice. Whilst the content of the policy is considered to be accurate as at January 2013, the example policy should not be regarded as an authoritative statement of the law which can only be made by reference to the particular circumstances that apply and it is advisable to seek legal advice before taking or refraining from any action. Taylor Walton LLP accepts no responsibility for any loss which may arise from reliance on this example policy. 1. POLICY STATEMENT 1.1. We are committed to protecting your health, safety and well-being and that of all those who work for us. We will endeavour to maintain a working environment in which everyone treats one another with dignity and respect and is able to co-operate with and trust their colleagues. We recognise that, whatever its source, stress is a health and safety issue in the workplace. We acknowledge the importance of a supportive environment and working culture This policy will apply to everyone in the company. Managers are responsible for implementation and the company is responsible for providing the necessary resources 1.3. This policy does not form part of any employee's contract of employment and it may be amended at any time. We are committed to protecting your health, safety and well-being and that of all those 2. WHAT IS STRESS? 2.1. Stress is the adverse reaction experienced in response to excessive pressures or demands. Stress is not an illness but, sustained over a period of time, it can lead to mental and/or physical illness There is an important distinction between working under pressure and experiencing stress. Certain levels of pressure are acceptable and normal in every job. They can improve performance, enable individuals to meet their full potential and provide a sense of achievement and job satisfaction. However, when pressure becomes excessive it produces stress Symptoms of stress may include: Physical headaches, insomnia, indigestion, rise in blood pressure, raised heart rate, ulcers, skin conditions, irritable bowel syndrome, weight loss or weight gain, muscular tension, fatigue, chest pain, dizziness, blurred vision. Mental and emotional tiredness, anxiety, anger, frustration, low self-esteem, mood swings, irritability, depression, memory loss, lack of motivation and creativity, poor concentration 3. SCOPE AND PURPOSE OF THE POLICY 3.1. We are committed to identifying, tackling and preventing the causes of work-related stress and to providing appropriate support and consideration to staff suffering from stress, on a confidential basis where appropriate.