The Employment Solicitors. CAPABILITY, MENTAL HEALTH, STRESS AND ABSENCE Tina Wisener & Simon Tovey 15 March 2014

Transcription

1 CAPABILITY, MENTAL HEALTH, STRESS AND ABSENCE Tina Wisener & Simon Tovey 15 March 2014

2 Session Outline Introduction: the rise of stress at work What is stress? Impact of long term absence Legal framework Main types of employment claims Managing stress in the work place HR policies When long term sickness absence becomes a problem what are the options for employers? Stress and disciplinary proceedings New Health and Work Service

3 One of the biggest challenges we face at home and at work is the need to normalise the issue of mental health. Mental health is an integral part of how we feel about our jobs, how well we perform and how well we interact with colleagues and customers. It affects the productivity of every organisation. (ACAS Promoting Positive Mental Health at Work)

4 Long Term Absence ONS Statistics (February 2014) 131 million days lost to sickness absence in 2013 Mental health problems such as stress, depression and anxiety accounted for 15.2 million days of work lost in 2013 CIPD Absence Management Report % of all absence is attributable to long term absence

5 Stress in the Workplace CIPD Absence Management Report 2013 Stress and mental ill-health are two of the most common causes of long term absence 40% of respondents reported stress-related absence had increased in the past year for the workforce as a whole Workload ranked as most common cause of stress

6 What is Stress? HSE definition Adverse reaction people have to excessive pressures or other types of demands placed on them

7 Pressure or Stress? Pressure can have beneficial effect in improving performance in job satisfaction Too much pressure can be harmful to health

8 Pressure or Stress? I couldn t breath, my heart was racing, I didn t know what was happening, I was terrified Geoff MacDonald Global Head of HR for major multinational

9 Signs of Stress Work performance Declining or inconsistent performance Uncharacteristic errors Loss of control over work Loss of motivation or commitment Indecision Lapses in memory Increased time at work Lack of holiday planning/usage Withdrawal Arriving late to work Leaving early Extended lunches Absenteeism Resigned attitude Reduced social contact Elusiveness/evasiveness

10 Signs of Stress Regression Crying Arguments Undue sensitivity Irritability/moodiness Over-reaction to problems Personality clashes Sulking Immature behaviour Aggressive behaviour Malicious gossip Criticism of others Vandalism Shouting Bullying or harassment Poor employee relations Temper outbursts

11 Cost Impact of Long Term Absence on Management time Employers Impact on team members Lack of efficiency and productivity Risk of disability discrimination claims if absence is not dealt with appropriately

12 Legal framework Health & Safety legislation duty to undertake risk assessments and manage activities to reduce the incidents of stress at work Common law tort breach of the employer s common law duty of care (negligence) Restriction on working hours Working Time Regulations Disability discrimination Equality Act 2010

13 Legal framework Other forms of discrimination or harassment can result in stress, anxiety or depression Contract breach of implied term of trust and confidence leading to constructive dismissal Harassment Protection from Harassment Act 1997 (stress arising from bullying and harassment)

14 Main Types of Claims Unfair Dismissal Disability Discrimination Personal (psychiatric) injury

15 Is there a disability? Equality Act 2010 definition: Physical or mental impairment Adverse effect on ability to carry out normal day-to-day activities Substantial (i.e. not minor or trivial) and long term Consider specific disability provisions

16 Disability discrimination Direct discrimination Indirect discrimination Harassment Discrimination arising from disability Obligation to make reasonable adjustments

17 The dangers of relying on occupational health Gallop v Newport City Council G suffering from stress NCC referred him to OH on numerous occasions. OH confirmed stress related but no signs of clinical depression OH told employer twice that it did not consider G to be disabled G brought claims for unfair dismissal and failure to make reasonable adjustments NCC accepted that G was disabled but denied knowledge at the relevant time Held: Employer could not deny knowledge of disability by unquestioningly adopting OH s diagnosis / the statements that G was not disabled

18 Extent of reasonable adjustments Wilebore v Cable & Wireless Worldwide Services Limited Employee undergoing treatment for cancer and as a consequence suffering from stress and anxiety C&W put the new role following a restructure on hold until after W returned to work (but still undergoing treatment) C&W then required employee to take party in a competitive interview process for the new role. C ranked as the third best candidate Held: C&W could have offered the role without competitive interview to minimise additional stress on W Employee awarded 253,825 compensation

19 Funding private medical treatment Croft Vets v Butcher B worked as a finance and reception manager 2007 CV opened a new hospital and expanded her role B eventually went off sick with work-related stress and depression CV referred her to a private consultant psychiatrist who recommended the employer fund private counselling sessions CV did not act on this and B resigned 3 months later Held: paying for private counselling would have been a reasonable adjustment

20 Stress: the potential impact (1)

21 Stress: the potential impact (2) Married banker, 46, leapt seven floors to his death from City restaurant Coq d'argent (11 January 2013) A banker who jumped to his death from the terrace of an exclusive London restaurant was under 'enormous pressure' at work and struggling to pay his children's school fees 'I understand from his widow that he was under an enormous amount of pressure from his new work which must have become unbearable,' the doctor said. The restaurant has now taken steps to deter suicide attempts after four people died there in the past five years

22 Stress: the potential impact (3) Financial death toll rises to 6, as JP Morgan employee jumps from Asian HQ (19 February 2014) - RT.com A colleague of the man said that before the suicide he had complained about heavy work-related stress

23 Managing Stress in the Workplace (1) CIPD Absence Management Report 2013 Stress and mental ill-health are two of the most common causes of long term absence Causes of stress: no.1 : workload no.2 : management style 33% of organisations who cited stress as one of top five causes of absence are taking no steps to address it Your experiences?

24 Managing Stress in the Workplace (2) Early intervention - spot the signs Consider specialist training for managers Engage with the problem Help with coping strategies Consider reasonable adjustments be creative Deal adequately with the causes of stress (real or imagined) Keep a watching brief Promote awareness of mental health issues Keep communication channels open (ACAS Promoting Positive Mental Health at Work)

25 Managing Stress in the Workplace (3) Flexible working Staff surveys Access to counselling services and employee assistance programmes Occupational Health Return to work interviews Changes to working patterns / environment

26 Managing Stress in the Workplace (4) Consider whether to apply the HSE Management Standards approach to your business: Demands workload; work patterns and the work environment Control how much say the employee has in the way they do their work (not as simple as senior vs junior ) Support encouragement and resources provided by the organisation, management and colleagues Relationships promote positive working; avoid conflict and deal with unacceptable behaviour Role do staff understand their role within the organisation? Change how change is managed and communicated

27 Anti-Stress Policy Policy statement - explain employer s attitude to stress Advice on measures to monitor and eradicate stress at work: Include stress risk assessments (see HSE risk assessment tools) Explain the role and expectations of managers Training for managers if policy to be effective Effective methods of investigating incidents giving rise to stress Internal and external sources of support for employees

28 Link to other HR policies Sickness absence policy should contain appropriate procedures for managing stress related absence Capability procedure to manage, where appropriate, those whose work loads are causing difficulties Anti bullying and harassment policy a potential cause for stress

29 Link to other HR policies (2) Grievance procedure for those who wish to make complaints about stress inducing behaviour Disciplinary procedure to deal with those who act in contravention of the stress policy Flexible working policy a potential means of reducing work place stress

30 A policy alone is not enough Are policy commitments reflected in the employer s practice? Does the employer undertake risk assessments and do they address work place stress issues? Does the employer apply an effective appraisal and staff development procedure? Does the employer provide an occupational health service and/or employee assistance programme or make any other form of support available to staff?

31 A policy alone is not enough (2) Does the employer provide training, particularly for those managers who might be called on to deal with stressed staff on identifying the signs and dealing with the cases of stress?

32 When long term sickness absence becomes a real problem what are the options? Capability is a potentially fair reason for dismissing a long term sick employee A fair process should: Ascertain the up to date medical position and prognosis Consult with the employee, formal warnings ( notifications ) Employer must consider impact on the business of on going absence

33 When long term sickness absence becomes a real problem what are the options? (2) Consider alternative employment Capability dismissal McAdie -v- Royal Bank of Scotland [2007] CoA Did the employer act reasonably in all the circumstances Was the employer responsible for the ill health? Is there any other alternative to dismissal? Some other substantial reason (SOSR) dismissal i.e. health and safety reason why employee should not continue in the job

34 Stress and disciplinary proceedings Common problems Employee signed off citing stress following disciplinary notification Could stress, anxiety or depression have caused or contributed to the misconduct? Do not have to delay indefinitely but take medical advice Fitness to work and fitness to attend disciplinary hearings are not the same thing Sick pay arrangements?

35 New Health and Work Service 1 October 2014 Help employees off sick for 4 weeks to return to work as soon as possible Help people stay in work and reduce costs for the taxpayer and businesses Work-focussed occupational health assessment in early stages of sickness absence OH professional provide state funded assessment and report to employer, employee and GP

36 New Health and Work Service (2) Case management for minority of employees with complex needs who require on going support Private sector service currently out for tender Service will include OH nurses, occupational physicians, physiotherapist and mental health specialists DWP estimates potential reduction in absence of between 20% and 40% and savings to employers of around 70m a year

37 Questions?

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