Knowledge November 2019 – Week 2

   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 or usage

 

   Regression
   Crying
   Arguments
   Undue sensitivity
   Irritability or moodiness
   Over-reaction to problems
   Personality clashes
   Sulking
   Immature behaviour

 

   Withdrawal
   Arriving late to work.
   Leaving early
   Extended lunches
   Absenteeism
   Resigned attitude
   Reduced social contact
   Elusiveness or evasiveness 

 

   Aggressive behaviour
   Malicious gossip
   Criticism of others
   Vandalism
   Shouting
   Bullying or harrassment
   Poor employee relations
   Temper outbursts

 

How often do we blame the employee for these things without determining if it’s the organisation causing them?

 

You will all be familiar with the Equality Act 2010 definition of a disability being a “physical or mental impairment which has a substantial long-term adverse effect on the person’s ability to carry out normal day to day activities”.  At the point that you first receive a fit note from the GP, citing someone is suffering from a stress related problem whether or not it is caused by work, at that point, they are probably not suffering a disability as confirmed by the case of Morgan v Staffordshire, as a bit like depression, the GP is largely going to expect somebody to recover, having had some treatment in perhaps a 6 month period. However, clearly not all cases end up being resolved in that way and the person’s health problems may continue in which case, they may, if their condition is having an adverse effect on normal day to day activities, start to meet the ‘long-term’ qualification when their condition has lasted for more than 12 months or is likely to.   Thus, what may start out as not being a disability can quickly become one, including if the employer doesn’t properly address the causes of the problem if it is rooted in work.

Of course, employers worry about these cases because of the potential for unlimited damages – if you look at where the highest Employment Tribunal awards are, they are always disability cases.

 

The more important reason for dealing with the case as disability related is your duty make reasonable adjustments. If the employer doesn’t do that, not only is it likely to face claims in discrimination law for that failure to make reasonable adjustments, but it is likely to have a much harder time defending itself from indirect discrimination claims or section 15 ‘discrimination arising from a disability’ claims where an employer who hasn’t made reasonable adjustments is unlikely to be able to objectively justify their policies, procedures or practices that may have placed a disabled person at a disadvantage, if they haven’t made reasonable adjustments to remove the substantial disadvantage someone is at.

Thus, if you behave like the issue is a disability (assume it is) you are likely to take appropriate steps and put yourself in a strong position if you do later face claims.

 

All employers have a common law duty to take reasonable care for the safety of their employees; they have a duty to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working (Wilsons & Clyde Coal Co Ltd v English [1938].

 

The Health and Safety at Work etc Act 1974 imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. In particular, the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) (MHSW Regulations) impose the following specific duties on employers:

 

Can you set out what steps your organisation is taking to prevent harm from stress in the workplace?  You may find your insurer asking you about this…….

 

The MHSW Regulations also require employees to tell their employer (or health and safety representative) about either of the following that affects their health and safety or that arises out of or in connection with their work (and which has not previously been reported):

 

Thus, if an employee tells you they are suffering from stress they may also be making a disclosure for the purposes of this legislation.

Generally, health and safety legislation does not create rights for employees to sue employers directly for damages in the event of a breach by the employer. The penalties levelled on employers are criminal sanctions (fines or imprisonment (or both in serious cases)) resulting from enforcement action taken by the Health and Safety Executive (HSE). 

 

However, the scope of the common law duty of care under the law of negligence is influenced by the employer’s obligations under health and safety law. Failure by an employer to comply with regulations may assist an employee in establishing the extent of the employer’s duty to prevent an employee being made ill by stress at work. It may also assist an employee in establishing the breach of the common law duty by the employer and whether an injury to the employee was reasonably foreseeable. At the moment, the bar is set quite high in terms of where the Courts have set it for personal injury cases – essentially they don’t want a flood of stress claims.  However, just like we have seen the law shift over the decades relating to what is acceptable treatment in the workplace – shouting and swearing are now not acceptable, you do wonder if over time, where that bar sits will shift and some of the ways employers are treating employees these days will become unacceptable? In the video I’ll talk a little about liability.

Section 100 of the Employment Rights Act 1996 protects an employee from dismissal if he brought to the employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety. Thus, I was able to advise a potential Claimant the other day who’d been ‘made redundant’ immediately when she raised serious concerns with her employer about her working hours, the size of her job and the lack of administrative support she was receiving, that she might have a claim for automatic unfair dismissal using this – again don’t be dismissive of someone raising concerns.

 

HSE Management Standards for work-related stress

• Employees indicate that they are able to cope with the demands of their jobs.
• Systems are in place locally to respond to any individual concerns.

• Employers should provide employees with adequate and achievable demands in relation to agreed hours of work.
• Skills and abilities should be matched to the job demands.
• Jobs should be designed to be within employees’ capabilities.
• Employees’ concerns about their work environment should be addressed.

• Employees indicate that they are able to have a say about the way they do their work.
• Systems are in place locally to respond to any individual concerns.

• Where possible, employees should have control over their place of work.
• Employees should be encouraged to use their skills and initiative to do their work.
• Where possible, employees should be encouraged to develop new skills to help them undertake new and challenging pieces of work.
• The employer should encourage employees to develop their skills.
• Employees should have a say over when breaks can be taken.
• Employees should be consulted over their work patterns.

• Employees indicate that they receive adequate information and support from their colleagues and superiors.
• Systems are in place locally to respond to any individual concerns.

• The employer needs to have policies and procedures to adequately support employees.
• Systems need to be in place to enable and encourage managers to support their staff.
• Systems need to be in place to enable and encourage employees to support their colleagues.
• Employees need to know what support is available and how and when to access it.
• Employees need to know how to access the required resources to do their job.
• Employees should receive regular and constructive feedback.

• Employees indicate that they are not subjected to unacceptable behaviours, for example, bullying at work.
• Systems are in place locally to respond to any individual concerns.

• The employer needs to promote positive behaviours at work to avoid conflict and ensure fairness.
• Employees need to share information relevant to their work.
• The employer needs to have policies and procedures in place to prevent or resolve unacceptable behaviour.
• The employer needs to have systems in place to enable and encourage:
  • employees to report unacceptable behaviour; and
  • managers to deal with unacceptable behaviour.

• Employees indicate that they understand their role and responsibilities.
• Systems are in place locally to respond to any individual concerns.

• The employer needs to ensure that, as far as possible, the different demands it makes of employees are compatible and that these are clear.
• The employer needs to provide information to enable employees to understand their role and responsibilities.
• The employer needs to have a system in place to enable employees to raise concerns about any uncertainties or conflicts they have in their role and responsibilities.

• Employees indicate that the organisation engages them frequently when undergoing an organisational change.
• Systems are in place locally to respond to any individual concerns.

• The employer needs to provide employees with timely information to enable them to understand the reasons for proposed changes.
• The employer needs to ensure adequate employee consultation on changes and provide opportunities for employees to influence proposals.
• Employees need to understand the probable impact of any changes to their jobs and, if necessary, be given training to support those changes.
• Employees need to be aware of timetables for changes and to be given access to relevant support during changes.