Facilities managers should review their strategies for dealing with workplace stress, in light of the updated HSE stress management standards draft urges Ciaron Dunne
28 May 2004
The HSE has confirmed that it will launch a new consultation on its draft stress management standards at the end of May 2004. The new guidance will, ironically, lead to a greater workload for facilities managers, who in many organisations will be charged with implementing the new requirements.
The HSE's approach in the draft management standards, published in June 2003, was that employers should find out about the mental state of their workers by conducting surveys and analysing the results. Employers would be required to assess how staff feel about six key areas as follows: demands - at least 85 per cent of employees should indicate that they are able to cope with the demands of their jobs; control - at least 85 per cent of employees should indicate that they are able to have a say about the way they do their work; support - at least 85 per cent of employees indicate that they receive adequate information and support from their colleagues and superiors; relationships - at least 65 per cent of employees indicate that they are not subjected to unacceptable behaviours (for example, bullying) at work; role - at least 65 per cent of employees indicate that they understand their role and responsibilities; change - at least 65 per cent of employees indicate that the organisation engages them frequently when undergoing an organisational change.
Facilities managers should already be reviewing their strategies for dealing with workplace stress, following the recent landmark decision in the first stress claim to reach the House of Lords - Barber v Somerset County Council - where the Lords reversed an earlier decision by the Court of Appeal.
Commenting on the case, Smita Jamdar, employment law partner at Martineau Johnson solicitors, says that the best statement of the general principles to be applied is found in a 36-year-old case about work-related dermatitis. It says that employers need to behave reasonably and prudently, and give positive thought to the safety of their employees; common sense and/or new knowledge may require working practices to be changed to address a particular health risk; there is a duty to keep abreast of developments which might affect the understanding of health risks in the workplace; and an assessment should be carried out of the likelihood of a particular health risk occurring and of the effectiveness of available remedies to counteract that risk.
On the facts of Barber, the Lords felt that a 'small reduction in workload, coupled with the feeling that the senior management team was on his side,' would have made a real difference to the claimant's health. The lesson to take from this decision is that employers need to demonstrate that they have systems in place for addressing workplace stress and are willing to take reasonable action to assist employees whose health is suffering because of stress. 'Reasonable' in this context will require a cost/benefit analysis.
That should not be regarded as the end of the matter. The HSE believes that the system of control should be based on a formal risk assessment approach, and has already taken enforcement action against an NHS trust, which failed to adequately control this particular workplace risk. Because the failure to carry out a relevant risk assessment can now also form the basis of a civil claim in its own right, facilities managers need to ensure that their risk assessment portfolio includes one on stress at work, to guard against both claims for compensation and criminal sanctions.
The TUC has reported two interesting stress-related cases. The first is a reminder to facilities managers that there are legal protections against discrimination in the workplace, and an employer can be held vicariously liable under discrimination legislation for any act of discrimination or harassment by one of its employees unless it can show that it took all reasonable steps to prevent the conduct. Diane Bradford, a deputy headteacher, received an out-of-court settlement of £200,000 after she was bullied by governors. Bradford, who worked at a Coventry primary school, accepted the payout from the governing body before her personal injury claim was due to be heard at the High Court on 17 May 2004.
A teacher for 20 years, Bradford was suspended along with her headteacher in August 1999, over a dispute between the senior management team and the governors at Our Lady of Assumption RC Primary. Although both head and deputy were reinstated days later, neither returned to work because of stress. Bradford has since retired on health grounds. The headteacher received an out-of-court settlement in January 2004.
In the second case, an undercover detective who had to carry out a dangerous bugging operation nine times, because of faulty equipment has won the right to substantial damages because of the stress-related ill-health it triggered. David Donachie risked his life fitting a tracking device to a car used by a violent gang of thieves outside the pub where they were drinking. Two days after the operation, described by fellow officers as the most stressful of its type that they had conducted, Donachie suffered a stroke. He won the right to damages at the Court of Appeal in London, when Lord Justice Auld ruled that extreme stress had 'caused or made a material contribution to' the stroke, which left the police officer's arms and legs partially paralysed and forced him to leave his job.
The judge, sitting with Lord Justice Latham and Lady Justice Arden, said the officer was a victim of negligence and of a breach of duty by Greater Manchester Police. The force had no idea that Donachie suffered from hypertension and was more at risk of a stroke but, Auld said, his physical and psychiatric injuries were nevertheless 'reasonably foreseeable' in law.
Back in 2003, the TUC warned that strokes would be one of the major occupational diseases of the 21st century: facilities managers beware.
Ciaron Dunne is a director at Workplace Law Network