Newsletters Criminal Regulatory 9th Feb 2021

The increased risks of work-related stress

It will be of no surprise to anyone that in the last year work-related stress was found to be on the rise and significantly so. The HSE’s most recent figures for 2019/20[1], which incorporate the first part of the pandemic, evidence that 828,000 workers suffered from work-related stress, depression and anxiety within that period, which led to a staggering 17.9 million working days lost, a figure up over 5 million from 2018/19.  Put into percentage terms, stress accounted for 51% (up from 44% in 2018/19) of all work-related ill health cases and 55% of all working days lost due to work-related ill health.

What is perhaps surprising is the HSE found little evidence that the overall increase was driven by COVID-19 in the first quarter of 2020[2].  It seems likely however that a different conclusion will be reached when the figures for 2020/21 are analysed.  Nevertheless, the fact that the substantial 2019/20 increase appears not to be COVID-19 related is worrying, as it suggests that work-related stress is on the rise independent of the unique and challenging times we all find ourselves in.

The necessity for addressing work-related stress is both legal and commercial: a report published by Deloitte in January 2020[3] gave an estimate of £42-45bn per annum in lost revenue in the UK due to mental health issues, of which  £27-29bn was thought to be due to presenteeism, i.e. employees attending work but being unproductive due to mental-health issues.  It is notable that not only is stress the cause of the majority of days lost but, on average, the employee suffering from a stress-related illness takes longer off work.

In terms of regulation, the HSE have historically not prosecuted in respect of work-related stress but in October 2019 it announced the criteria where it would consider investigating concerns and, it must follow, prosecute if charging criteria are met.  The factors the HSE intend to take into account are as follows[4]:

  • There is evidence that a number of staff are currently experiencing work-related stress or stress-related ill health, (i.e. that it is not an individual case), but
  • HSE is not the appropriate body to investigate concerns solely related to individual cases of bullying or harassment, but may consider this if there is evidence of a wider organisational failing, and
  • HSE would expect concerns about work-related stress to have been raised already with the employer, and for the employer to have been given sufficient time to respond accordingly.

That there have not been prosecutions as yet may, in part, be due to the pandemic, but it can nonetheless be reasonably concluded they are coming.  The HSE has published guidance on stress in the workplace[5] including what are identified as the six main areas that can lead to work-related stress if they are not managed properly: demands, control, support, relationships, role and change[6] . The very fact of providing such guidance and the emphasis placed upon the need for employers to address the risk can reasonably be foreseen as a precursor to enforcement.

In the absence of criminal cases, assistance can be found in civil claims as to the principles which may be applied and the common failings which could lead to prosecutions.  In this regard it is important to note, notwithstanding the reference to stress at work, stress in itself is not actionable and is unlikely to the subject matter of any prosecution: if that were the case the majority of employees in this country would have causes of action.  What must be present is a stress-related illness/injury or the real risk of the same; this means a psychiatric injury which is caused or exacerbated by work-related matters.

The key concept in civil claims is foreseeability. Therefore, the risk of a work-related stress injury must be foreseeable generally, by way of the particular task employees are required to perform, or in specific circumstances of an individual.   Foreseeability can be established by the general nature of the employment, for example the emergency services, at particular busy periods of work, or where an individual has a known risk of or vulnerability to psychiatric injury.

In terms of potential failings, the starting point, as ever, is whether there is a suitable and sufficient risk assessment which not only identifies the general risk of injury but the particular risks posed by certain tasks, at certain periods and for certain individuals.  A ‘one size fits all’ risk assessment will be no more suitable in respect of in all cases of stress than it would be for a manual handling operation or working from height.  Where the risk of a stress related injury is greater, consideration must be given to a bespoke risk assessment and more effective control measures.

Not identifying those at foreseeable risk of a stress-related injury or not taking reasonably practicable steps to address that risk are also commonly found failings.  Where the risk is greater, there is an increased emphasis on  pro-active steps, self-reporting may not satisfy the requirements of the HSWA and managers and/or those with human resources or occupational health  responsibilities may need to take action to monitor group or individual stress and then take effective measures to reduce the same.  Further, documenting risk assessments, interactions with employees in this context and relevant control measures is also essential to evidence compliance and to successfully defend both criminal and civil claims.

The costs to an employer of getting the approach to work-related stress wrong are both reputational and financial. Anecdotally there appears to be a rise in coroner’s conclusions which are critical of employers in work-related suicide inquests, particularly where disciplinary processes were being pursued in respect of the deceased.  Civil claims where there are psychiatric injuries can be complicated and expensive to defend, particularly where the QOCS regime in most cases prevents the recovery of costs on behalf of a successful defendant and damages can be high.  Finally, the financial (and reputational) costs related to prosecutions are well-known, both in terms of significant and irrecoverable legal costs and substantial fines in the event of conviction, the latter being an uninsured risk.

It is therefore incumbent upon employers to do their best to address the risks posed by stress and overwork, as well as supporting employees who, as a result of economic changes, face reduced working hours or worst still, find themselves likely to be retrenched. Companies need to know and understand both their workforce and the effects that the work they are required to do will have upon them.  Managers should get to know their staff and, without prying, be alert to changes in behaviour.  Particular care needs to be taken at times when employees are more vulnerable, for example due to bereavement, illness, disciplinary process, or family problems as well as when their workload is unusually large or where there are significant time pressures.  If employees are put under stress, as we all are at times, an employer must think of what adjustments can be made to allow those employees respite.


Iain Daniels







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