Work related stress remains one of the most common causes of sickness absence. The number of working days lost due to work related stress, depression or anxiety in 2014/15 was 9.9 million days.

The Health and Safety Executive defines work related stress as "the adverse reaction people have to excessive pressures or other types of demand placed on them at work."

Baines Wilson LLP are running a series of workshops on 17 November at The Swan Hotel, Newby Bridge, 19 November at Rheged, Penrith and 24 November at Lancaster House Hotel, Lancaster in conjunction with a Clinical Psychologist, Vicki Hastings of the Cumbria Stress & Trauma Centre to assist employers dealing with this difficult issue.

Please call Martha Winn on 01228 552600 to book your place.

What does the law say?

Stress is a complex workplace issue because there is no UK legislation that specifically deals with it.

Employers should bear in mind the following when dealing with employees with work related stress:

  • The implied term of mutual trust and confidence, which exists in all employment contracts, and a breach of this term can give rise to claims for constructive unfair dismissal.
  • An employee off with work related stress could make such a claim, particularly if it has not been managed appropriately.
  • The Health and Safety at Work etc. Act 1974 imposes a duty upon employers in relation to the health, safety and welfare of employees, including mental health.
  • The Working Time Regulations 1998 guarantee certain rest and holiday periods and restrict the number of hours that a worker can work unless an ‘opt-out agreement’ is in place.
  • The basis for this is primarily health and safety, enabling employees to rest and recuperate.
  • If anxiety, stress and/or depression have a substantial and long term adverse effect on an employee’s ability to undertake day to day activities their condition may amount to a disability, giving rise to protection under the Equality Act 2010.
  • Employers can be liable in negligence, for psychiatric injury and harassment.

What options are open to employers in this context?

Top Tip #1: Deal with the Fit Note

It is important for employers to deal with a Fit Note stating work related stress appropriately and maintain contact with an employee on sick leave.

Fit for Work is now available across the country, and both employers and GPs can now make referrals to the service, subject to certain conditions.

Employers may wish to consider using Fit for Work if they do not have access to their own occupational health services.

Top Tip #2: Don’t let matters drift during long term sick leave

Employers should deal with the issue head on when absence presents unacceptable levels of disruption to the business, rather than allowing the situation to drift to the point where the employee has been off for so long that dismissal looks like the only viable option.

Top Tip #3: What about disciplinary proceedings?

A common problem for employers is that of the employee who, upon being told to attend a disciplinary hearing, goes off sick citing stress as the cause.

Contrary to popular belief, the default position is not to postpone.

In most cases, medical advice will suggest that dealing with the disciplinary issue will be more beneficial to the employee.

Top Tip #4: Manage poor performance

Where performance becomes an issue, discuss it with the employee promptly and explain that they are not performing to acceptable standards.

If disciplinary action is necessary, ensure fair and appropriate procedures are followed with reference to any relevant internal policies and the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Top Tip #5: “He can’t be ill, he’s on holiday”

Whilst it would normally amount to gross misconduct for an employee to take sick leave and claim sick pay when they are fit for work, employers should avoid making snap judgements based upon reports that a stressed employee has gone on holiday, or has been seen otherwise enjoying themselves.

There is no legal requirement that a stressed employee must stay at home and not go out.

Employers wishing to learn more about dealing with stressed employees and how to deal with tricky issues should call Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.