Workplace Stress: Employer’s Duty of Care

Employers are under a legal duty to assess the risk of workplace stress for their workers and to take appropriate action to ensure their wellbeing. In addition to meeting the duty of care, employers should be concerned with the wider implications of work-related stress.

Stress can significantly impact a business and its workforce, affecting absence, performance and personnel retention rates. It can even affect the reputation of your business and employer brand. As such, there is clearly a business case for the effective management of your employees’ health and wellbeing and tackling stress in the workplace.

This comprehensive guide sets out the legal responsibilities placed on an employer in relation to the mental wellbeing of its workforce, from the statutory and common law duty of care owed to employees, to the practical and legal consequences of failing to meet this duty.

 

What is an employer’s duty of care?

All employers are under a statutory duty to ensure the health, safety and welfare of their staff. This duty of care means that employers must identify any health and safety risks to which employees may be exposed at work and take appropriate measures to control any workplace risks.

 

Employer’s duty of care & workplace stress

By law, an employer is under a duty to ensure the health, safety and welfare of their workforce, so far as is reasonably practicable, including their mental wellbeing. Work-related stress is now widely recognised in the UK as a serious health and safety issue, where employers are duty bound to treat this condition like any other workplace hazard.

Work-related stress can manifest itself in a number of different ways, both physically and psychologically. Common symptoms include apathy, fatigue, insomnia, headaches, irritability, palpitations and panic attacks, or any combination of these or other symptoms. These can then often lead to long-term mental health problems, such as anxiety or depression, as well as increase the risk of physical health problems, including heart disease.

As such, all employers must provide their employees with a safe and stress-free place of work. This involves a two-stage process of:

• identifying any risks to which an employee may be exposed, and
• taking appropriate measures to control these risks.

 

A duty also arises for employers to make reasonable adjustments for any employee suffering from a mental impairment that amounts to a disability, in this way ensuring that the individual is not substantially disadvantaged in carrying out their work. This is in addition to a duty to prevent any harassment, discrimination or victimisation in the workplace, where employers can be held vicariously liable for the actions of their employees if they fail to take action to prevent unlawful behaviour that has resulted in work-related stress.

 

Causes of work-related stress

Work-related stress is caused by the pressures felt by an individual as a result of their job role or the conditions in which they are required to carry out that role. There are various factors that may precipitate or contribute to work-related stress. These commonly include:

• Excessive workloads or last minute deadlines
• Working long hours or taking work home
• Undertaking too much responsibility
• Lack of career progression or job insecurity
• Lack of support from co-workers or management
• Conflict and confrontation caused by difficult working relationships
• Being exposed to bullying or harassment in the workplace
• Being discriminated against or victimised in the workplace
• Being required to work in a poor or unsafe working environment

 

Stress affects different people in different ways. And what stresses one may not even register as stress with another. Factors such as skills, experience, age, or disability may all affect whether an employee can cope.

 

Stress as a disability?

Employers have a duty of care to do all they reasonably can to support their employees’ health, safety and wellbeing. A mental health issue may be considered a disability under the Equality Act 2010 if it has a “substantial adverse effect” on the life of the employee (perhaps a task takes them longer to perform, for example), it lasts at least twelve months (or is expected to), and it affects their ability to undertake routine day-to-day activities (keeping to contracted hours, for example).

Mental health issues can also be considered a disability even if the sufferer does not have symptoms all the time, or their symptoms are better at some times than others.

Under case law, while long term stress does not, on its own, constitute a qualifying disability, it may, depending on the facts be a contributing factor that meets
the threshold under the Equality Act.

 

How to manage workplace stress

The duty of care to protect employees from work-related stress imposes a number of practical obligations on an employer. These include carrying out regular risk assessments to identify any risk factors in the workplace, and putting in place proper controls to remove and reduce any such risks. However, the duty of care does not end there.

Even though an employer is entitled to expect that an employee can cope with the normal pressures of work, once it is apparent that an employee is suffering from work-related stress, or they are showing obvious signs of stress, the matter must be investigated and action taken.

In many cases, employees suffering with work-related stress may be unwilling to admit to feeling overwhelmed, so it is often up to the employer and line managers to spot the signs before it’s too late. This can often be difficult, as work-related stress can manifest itself in several different ways. Common signs and symptoms to watch out for include:

• A drop in performance at work
• An inability to carry out normal tasks or follow simple instructions
• Uncharacteristic mistakes or accidents at work
• Increased absenteeism or lateness
• A lack of engagement, motivation or enthusiasm
• A change in attitude, including cynicism or negativity
• A change in behaviour, including becoming withdrawn, sensitive or irritable
• Self-isolation or social withdrawal from co-workers
• Increased conflict and confrontations with co-workers
• Increased complaints and grievances from or about an employee
• Complaining about feeling exhausted or physical signs of fatigue
• A deterioration in appearance or personal hygiene
• Obvious weight gain or weight loss
• Signs of alcohol or substance misuse.

 

Once it has become obvious that an employee is suffering from work-related stress, you should not wait for a formal grievance to be submitted before conducting a workplace investigation. Steps should be taken immediately to identify the source(s) of the employee’s stress and to help alleviate the effects. The employer should also take steps to support the employee in their recovery, a process which may be prolonged and require regular reviews.

 

 

Workplace stress risk assessments

Stress risk assessments provide a careful examination of the things in a workplace which could cause employees to suffer from work-related stress. This allows employers to establish whether you have done enough or should go further to prevent harm.

Under the Health and Safety at Work Act 1974, employers have a legal obligation to ensure (so far as is reasonably practicable) the health of employees in the workplace. This includes taking the necessary steps to ensure employees do not suffer from stress-related illness because of their work.

Additionally, employers have a specific responsibility under the Management of Health and Safety at Work Regulations 1999 to undertake risk assessments that look at identifying, eliminating or reducing risks to their workers’ health, safety and welfare. Stress is one of the risks that must be assessed.

A stress risk assessment is probably best conducted by a senior member of the team. Although any person tasked with carrying out a risk assessment, must be competent to do so in terms of experience and knowledge.

For employers with fewer than five employees, risk assessments do not have to be recorded. However, it is useful to do this, so the information is available for review should anything change. If you have over five employees, you are required by law to ensure the risk assessment is written down.

Any documentation produced should assist with communicating and managing the risks in your business. For most businesses, this is not a huge exercise, because only the main points surrounding significant risks that have been identified and what you have decided needs to be recorded.
An easy way to record your risk assessment findings is to use a risk assessment template. They include categories such as job demands, managers’ guidance, workloads, competencies, work patterns, physical environment, conflicting deadlines, poor interaction with others, bullying, racial or sexual harassment, discrimination and violence at work. These main categories can be sub-divided into ways to reduce stress such as prioritising tasks, removal of unnecessary work, regular meetings, review shifts/hours, introducing flexibility, rotating repetitive tasks, introducing guidelines for dealing with priorities, fair and honest work culture and conflict management training.

These are all examples of things than can be included but will obviously vary between businesses and roles within them. The HSE has set out Management Standards which help to identify and manage six areas of work design that can affect employees’ levels of stress: demands, control, support, relationships, role and change. They demonstrate good practice via a step-by-step approach to stress risk assessment.

• Demands: Includes matters such as workload, working patterns and workplace environment
• Control: How much say employees have in the way in which they perform their role
• Support: Includes encouragement, sponsorship and resources provided by the business, management and colleagues
• Relationships: Includes promoting positive working to avoid conflict arising and dealing with any unacceptable behaviour
• Role: Do employees fully understand their role within the business? Does the business ensure they do not have conflicting roles?
• Change: How change within the business (whether large or small) is managed and communicated

 

How to conduct a stress risk assessment

Talk to your staff

Explain to your employees what you are planning to do and why and seek their active participation and support for the process.

 

Gather evidence

The most obvious step is to find out whether any of your staff feel they are suffering from work-related stress, and if so, why. A good way to gather evidence is to survey your employees asking them a range of questions about their roles, home life, whether they have experienced stress in the past or at present, and anything else that concerns them. A good return is essential if you are to obtain a representative sample. Think about involving trade union representatives which may help improve the response rate. It should be borne in mind that employees may be reluctant to complete a survey honestly for fear of repercussions, unless their anonymity is guaranteed.

In addition, you will need to give employees sufficient time to complete their surveys (at least a week). And the timing for completion is important too. If you are asking employees to complete them in the new year after having enjoyed an extended break for Christmas, or in September during the time most employees take a two-week summer break, your responses are likely to differ from those obtained at other times of the year because they are refreshed from their time off.

To supplement your findings from the surveys, you should also look at data from additional sources such as sickness absence figures, staff turnover, exit interviews, return to work interviews, or number of referrals to occupational health.

 

Share your findings with staff

Staff should always be consulted on the findings and given the chance to suggest possible changes to working practices which could reduce stress levels. Concentrate on any priority areas you have identified; you do not have to tackle everything at once.

 

Make the changes

As discussed above, you may want to consider the HSEs Management Standards “stressors” and discuss with your employees and/or any trade union representatives any that would make a real difference.

 

Establish a review process

The review process could involve including stress as a regular item on the agenda of any health and safety committee meetings or staff meetings. This enables new stressors to be easily identified and addressed quickly. The stress risk assessment should also be reviewed if any changes occur in your business that may increase any risk, for example, lone working or remote working, or when there is a major business change. The midst of a pandemic would be an excellent time for review, for example.

Besides organisational stress risk assessments, an individual stress risk assessment should be carried out when an employee reports they are experiencing work-related stress. If an employee is absent, consider asking them about any stress they are experiencing at work in a return-to-work interview.

Completing individual stress risk assessments encourages an open dialogue to discuss any perceived issues, with a focus on reducing work stressors. This provides both employers and employees with an opportunity to talk through the support available and develop an individual action plan to mitigate or reduce stress.

 

Individual stress risk assessments

There may be occasions when individuals suffer from the effects of stress. Where an employer becomes aware that an employee may be suffering from stress, they must determine the exact nature of the issue by exploring the individual’s role and working environment. There are likely to be aspects of these which need changing in order to reduce the employees’ exposure to a specific stressor. There may also be further steps an employer can take to improve employees wellbeing. To help achieve this, the organisation’s stress risk assessment should be reviewed and the individual stress risk assessment completed.

The employee’s concerns should be initially assessed to see if any stressors can be identified and recorded. It may well be that their issues are all contained within a particular area of management or perhaps crossover several of HSEs’ management standards. For example, a heavy workload could impact not only on “demands” but also impact “control” and “support” too.

The employee’s concerns should be recorded to ensure the issues are comprehensively understood. Steps that the employee is taking themselves to manage their own wellbeing should also be noted. At this point, a decision should be made whether additional reasonable measures could be implemented, which are particular to the employee in question, keeping in mind your own control measures previously identified within your organisational stress risk assessment.

Although additional measures may be easy to implement and cost very little, it may be that it is not reasonable to go beyond the measures that are already in place. An employer will need to base this decision on a range of factors including the significance of the issues raised, the practicability and costs of implementing additional measures, the wider impact within the workplace, the resources available, and the impact on the health of other employees.

 

How to support employees signed off with stress

If a member of staff has been absent from work because of stress, any fit note from their GP will usually record details of the functional effects of the employee’s condition so the employee and their employer can consider ways to help them get back to work, and continuing this support after their return. This could include, for example, amended duties, altered hours or a phased return.

For employee’s on long-term sick leave, and where the employer has an occupational health team or access to an external provider, a referral should be made for an assessment. In this way, recommendations for recovery can be tailored to the individual’s needs in the specific context of their job role. Even for short-term cases of stress-related sick leave, seeking expert advice will not only help to prevent a recurrence of the employee’s symptoms, it will demonstrate your commitment to ensure the health, safety and welfare of your staff.

In all cases, it is important that an employee suffering from stress is given sufficient time to recuperate prior to returning to work and, on their return, they are not then subject to the same risk factors that caused or contributed to their stress in the first place. This means that you may need to review the employee’s job description, reduce their workload or hours, modify performance targets, or even transfer them into a different role.

In instances of workplace conflict, you may need to take disciplinary action against anyone responsible for bullying or harassment. You should also ensure that any employee affected by work-related stress, regardless of the cause, is regularly reviewed by their line manager or a member of HR, and they are provided with ongoing support, training or counselling.

For employees who are showing signs of stress but have continued to work rather than disclosing their symptoms to their line manager or GP, this situation will need to be handled sensitively. Using an appraisal process can provide a safe environment in which an employee may feel comfortable in discussing their mental health. However, in some cases, immediate action may need to be taken, including any decision to send the employee home to recover.

 

Reducing work-related stress

The legal duty to ensure the mental wellbeing of your staff not only means taking appropriate action in response to any employee who is suffering from stress, but taking steps to prevent work-related stress from becoming commonplace across your workforce.

Prevention and early intervention often lead to a decrease in the negative impact of workplace absence, engagement, and presenteeism. Good mental health care pathways should not just include interventions when employees are struggling, but also initiatives that aim to promote good mental wellbeing.

There are several ways for employers to meet their responsibilities and fulfil their duty of care towards their employees. These could include:

• Creating a culture that champions good mental health: by fostering a caring and supportive working environment, where your staff feel able to be open and honest about how they are feeling without fear of reprisals, this can help to keep work-related stress in check. Talking to your employees and understanding how to identify the signs of stress enables you to prevent and reduce stress in your workplace.Nurture an open culture by making sure managers are provided with the skills and confidence they need to have sensitive conversations with employees. This may involve some signposting to other services the organisation provides, such as Employee Assistance Programmes or outside specialist providers.
• Creating a healthy work/life balance for your staff: by showing that you value whole person wellbeing, this will help you to promote a less stressful and pressured environment. This could include limiting overtime, ensuring staff use their full annual leave entitlement and offering flexible working arrangements.
• Implementing a wellbeing programme: by introducing wellbeing initiatives, such as lifestyle assessments, mental health days and discounted gym memberships, this will show your employees you care about their health and happiness, in this way helping to reduce levels of stress and increase levels of engagement.
• Providing mental health training: by training line managers in how to spot the signs of work-related stress, you can help to prevent these symptoms from escalating into something more serious. Training can also provide managers with proactive ways to help alleviate stress factors or provide support for employees showing signs of stress.
• Introducing a zero-tolerance bullying policy: by putting in place a zero-tolerance policy on bullying and harassment at work, this can help to safeguard your staff and reduce the risk of stress arising from conflict and confrontation with co-workers or management.
• Adapting to support: changing working arrangements, job reviews and updating policies are all ways that can be used to help reduce the pressure employees may feel at work. 

Supporting employee mental health needn’t be expensive for an employer, where there are various cost-effective ways in which you can provide your employees with a safe and stress-free working environment – starting with a caring and supportive approach to stress.

In order to protect employees from stress at work, employers should assess potential risks to their employees’ health. A stress risk assessment can be a good way to do this.

 

Failing in your duty

Work-related stress is a widely recognised health and safety issue, and one that all employers must proactively address if they are to comply with UK health and safety legislation. Any failure to take appropriate action to prevent work-related stress or to support an employee suffering with stress, could have far-reaching consequences for both you and your business.

From a practical perspective, the consequences of work-related stress can include:

• High levels of absenteeism or the loss of valuable members of staff
• Lack of employee engagement, low performance and lost productivity
• An increased incidence of errors and accidents at work
• A negative impact on the reputation of your business and employer brand

 

From a legal perspective, an employer who has failed to identify and take reasonable steps to prevent work-related stress can find themselves exposed to claims for constructive dismissal, where employees have felt forced to resign due to stress. Equally, the dismissal of an employee on grounds of capability because of stress may result in a claim for unfair dismissal.

In theory, you can lawfully dismiss an employee on long-term sick leave on the basis that they are are no longer able to do their job. However, the onus will be on you to show why you were unable to make any reasonable adjustments to their working conditions, where any failure to do so could also result in a claim for unlawful disability discrimination.

By spotting the signs and taking steps to reduce the effects of work-related stress, employers can minimise its impact in the workplace and avoid expensive legal action.

 

Can an employee sue their employer for workplace stress?

The statutory duty of care that is owed by an employer to its employees to ensure their health, safety and welfare includes their mental wellbeing. If an employee is absent from work with stress, an employer must take steps to alleviate the causes and support their return to work.

An employee can sue their employer for any breach of the duty of care to ensure their health, safety and welfare, including their mental wellbeing. An employee suffering from a long-term mental health condition amounting to a disability may also sue for unlawful discrimination where their employer fails to take reasonable steps to ensure they are not substantially disadvantaged in doing their job.

 

Need assistance?

DavidsonMorris’ human resource specialists work with employers on all aspects of workforce management, employee wellbeing and engagement. Working closely with our team of employment lawyers, we offer a holistic solution to support with legal risk management while optimising performance and personnel welfare. For advice on a specific issue, speak to our experts today.

 

Workplace stress FAQs

What is a stress risk assessment?

A stress risk assessment is an examination of things in a working environment which may cause employees to suffer from work-related stress.

How should a stress risk assessment be carried out?

Risks should be identified, determination of who may be harmed and how, evaluation of risks and the action needed to prevent them, findings recorded (if over five employees) and risk assessment regularly reviewed to ensure it is up to date.

Is it a legal requirement to have a stress risk assessment?

Employers have a legal duty to protect their employees from suffering from stress at work by conducting a risk assessment and acting upon it.

What are the 4 types of risk assessment?

There are several types of risk assessment used by health and safety professionals, including: qualitative, quantitive, generic, site-specific, and dynamic risk assessments.

Can an employee sue for an employer's lack of duty of care?

In theory, it is possible for an employee to sue their employer for a lack of duty of care, for example, where an employee is suffering from work-related stress and the employer has failed to take steps to prevent this. In practice, this will often arise in the context of a constructive dismissal claim where an employee has felt forced to resign because of work-related stress.

Last updated: 30 November 2022