Jane Byford and Jo Oliver were delighted to deliver a breakout session on managing staff mental health and wellbeing at the Association of Colleges Employment Law Conference on 22 October 2015.
The session received positive feedback from the delegates who attended and therefore we thought it would be helpful to summarise some of the issues that we covered.
Whilst work can have a positive effect on an individual's self-esteem, general wellbeing and confidence, it can also have a potentially negative impact on physical and mental health. Difficulties at work may cause stress, anxiety, depression, back pain, hypertension and increased risk of coronary heart disease. These symptoms of stress can lead to staff taking more time off work. Managing staff wellbeing can help reduce staff absence and turnover.
What are the main causes of stress at work?
The Health and Safety Executive has identified six main causes of stress at work:
• Demands, including workloads, work patterns and the working environment
• Control, including how much influence employees have over how and when they do their work
• Support, including encouragement and the resources provided by the employer, line management and colleagues
• Relationships, including promoting a positive working environment, avoiding conflict and dealing with unacceptable behaviour
• Role, including whether people understand their role within the organisation and whether they feel they have conflicting roles
• Change needs to be managed effectively or it can lead to uncertainty and insecurity. Colleges need to think about how organisational change is managed and communicated
What are the employer's legal obligations?
There is no legislation that specifically deals with stress in the workplace, but it can give rise to a number of legal liabilities including:
Colleges owe their employees a duty to take reasonable care for their health and safety, including their mental health. It must be reasonably foreseeable that injury will be suffered as a result of the employer not taking reasonable steps for the employer to be liable. In a stress context, proving that an employer should have foreseen harm to health and that it was work rather than other factors that caused mental ill health is not easy. Furthermore, the employee has to have a recognised psychiatric disorder.
Successful stress-related personal injury claims are therefore rare and usually reserved for very extreme cases.
Disability discrimination is encompassed within the Equality Act 2010. Stress could lead to a disability if the impairment has lasted or is expected to last for 12 months or is expected to recur and depending on the effects the impairment has.
If disability is established then discrimination can be direct, indirect, arising from the disability, harassment or victimisation. There is also a duty to make reasonable adjustments to the premises and working practices.
Bullying and Harassment
Harassment is a legal term within the Equality Act 2010, and must be related to a protected characteristic e.g. an individual's sex, race, sexual orientation or age. It is defined as unwanted conduct that has the purpose or effect of violating the person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her.
An employer can be liable for its own harassment and vicariously liable for the acts of its employers.
Bullying does not currently have a legal definition and there is no specific piece of legislation dealing with workplace bullying. It can take a variety of forms ranging from extreme physical violence to more subtle forms such as persistent negative comments.
If the bullying treatment is not related to a protected characteristic, often the only legal remedy available to an employee is to resign and claim unfair constructive dismissal. In serious cases of bullying an employee may find recourse in the civil courts under the Protection from Harassment Act 1997, which prohibits the pursuit of a 'course of conduct which amounts to harassment of another'.
• Health and safety
The Health and Safety at Work etc. Act 1974 provides a general duty to ensure, as far as reasonably practicable, the health, safety and welfare of employees. The Management of Health & Safety at Work Regulations 1999 oblige employers to assess nature and scale of risks in workplace. There is an increased focus on employees' psychological health and welfare.
The Health and Safety Executive expects employers to carry risk assessments in relation to stress in the same way as it carries out risk assessments in relation to physical risks. Employers risk enforcement action, including improvement notices and prohibition notices if they fail to comply with their health and safety duties.
How can we help?
An essential step to identifying and managing stress in the workplace is to carry out a stress risk assessment. This involves several stages, starting with identifying the risk factors or hazards, and ending with creating and monitoring actions plans.
There are also various proactive steps that can be taken by employers to promote improve employees' health and wellbeing including:
The full handout notes from our AoC presentation can be found here.