Intellect HR Update

Managing stress is not a new issue, so why have we chosen this for our hot topic for this month? Stress affects so many people in the UK that all organisations are impacted by it at one time or another. Unfortunately, stress is a management issue that will not disappear. Stress is a costly, time consuming and sometimes exhausting subject to handle, but time invested in tackling it reduces the issue to a minimum and makes it more manageable.
 
Key facts

• The cost of stress to UK industry lies at around £11.6 billion per year.
• Each new case of work-related stress results in an average of 29 days' absence. 

Is it genuine?

Years ago, stress was named the 'new back' as a non-genuine reason for absence. This legacy hasn't really diminished since, and some employees find it relatively simple to act stressed and to obtain GP certification to back this up. In fact, we've seen lots of disciplinary hearings postponed for some time due to sudden sick notes! But for the majority of cases that are genuine, stress spans a huge range of symptoms: from mild to clinical depression, or anxiety and panic attacks, caused by home, personal, emotional, physical or work-related stressors. Clients repeatedly ask us: "We are not medically qualified, how do we handle this situation?"

Recognising stress

From a management perspective, managing stress starts right at the beginning - which means ensuring your managers are able to recognise the signs and to take action as early as possible. Everyone reacts differently to stress: a normally placid person can suddenly start erupting in meetings, or a vivacious employee can sink inwardly and become very distant. Other signs of not coping can be working increasingly longer hours, missing deadlines and attempting to cover up mistakes. Those with personal problems can go missing at times, perhaps making personal phone calls or escaping the office to be on their own. These are issues that will be recognisable at work, and are far easier to sort out than waiting until the person becomes absent.

Once the employee is off sick, the process usually becomes a much longer issue to sort. It may sound easy to spot these signs, but within a busy workplace, things can be overlooked and a stressed employee may well be hiding the issue from you, or even from him/herself. Once you have recognised the signs, or if the individual seeks help from you, start talking to him/her immediately. Ascertain if it is a work related issue, and if so, help sort it out. Then keep an eye on the employee to ensure that the problem is resolved. If it is a personal issue, encourage the employee to talk to you about it or someone else if more appropriate. It is the employee's responsibility to resolve non work-related problems, but a supportive employer is more likely to reduce any absences that will impact your business.

How supportive should we be?

This is often asked and the answer does depend to some extent on how open the employee is willing to be. If the employee persists in hiding his/her stress symptoms, is unwilling to discuss the subject, has repeated time off or long-term absence and refuses help, you are more likely to go down the disciplinary route. An employee who admits the problem, opens up about the detail, accepts help from his/her GP, manager (and Occupational Health provider if there is one) is more likely to be supported by the employer. Of course, if the stress is caused by work, and you accept your organisation has contributed to this, then such a situation demands greater support from you. Adjustments to the role, workload, surroundings, hours etc can all help to reduce the pressure and resolve the problem - and your liability.

Common questions

Is stress a disability?

This can only be determined medically, and if it is, reasonable adjustments have to be made, such as reducing or altering workload. A disability is "a physical or mental impairment which has a substantial and long term adverse effect on (the person's) ability to carry out normal day to day activities". Stress or depression can fall within this definition, provided it is sufficiently substantial and long term.

Can we contact our employee at home about a work issue if the stress is caused by work overload?

We would advise against this: unless you just require a short phone call to get passwords, or to check the location of a document, then do absolutely everything you can to sort your issue yourself. If the employee was on holiday and non-contactable or had left your business, you would have to cope without him/her. If you end up with a tribunal claim, and the employee can catalogue a list of impatient contact from you over work issues whilst off sick, the tribunal will consider your behaviour unreasonable and is more likely to feel highly sympathetic to the claimant and to believe any assertions made about your liability for the resulting problems.

If the employee has personal problems (rather than work-related ones), are there other alternatives to sick leave which would help?

Consider whether some form of flexible working might help those with child care problems or caring for dependants. Extend this to those who are not covered by legislation, such as those with problems with teenagers going off the rails, or who need time off to deal with personal issues such as marital problems or counselling for drugs or alcohol dependency. Could you provide independent counselling to help resolve the situation? The cost of this may be less than the excessive absence.

If we believe that absence due to stress is simply to avoid a disciplinary hearing, what should we do?

Even if you doubt the absence is genuine, you should wait until the employee returns to conduct the hearing. Perform a return to work interview to ensure the stress has ceased and find out whether it was work-related (ie looking forward, are there any changes to the role you need to make?) Then you can continue with the hearing if still relevant. If the absence is lengthy then tackle it in the normal way, with regular contact and a medical report.

This information will guide you as to whether the hearing is still relevant on the employee's return or whether the case is genuine and becomes an ill-health termination or retirement issue. If however, you are considering a gross misconduct dismissal then you may need to move more quickly - in which case you can ask the employee whether he/she feels able to come in for the meeting, whether he/she would prefer to put his/her case in writing etc. Take advice in these situations.

Our employee is working really long hours, often at home and refuses to cut down. He's signed an opt-out agreement, so presumably that is all we have to do?

Even with the opt-out, you still have a duty of care towards your employee, and if you have the knowledge that he is stressed and you haven't tried to alleviate it, this can cause huge problems. Sometimes you need to act in these situations for the employee's health. For example, you may have an employee with financial difficulties who wants to earn as much as possible, but neglects his health as a consequence.

A burnt-out employee will eventually have to stop working when his body decides to stop, so it is better to take a caring approach and talk to him about the situation. Find out why he is working so many hours, is it financial, is it due to problems coping with the workload at his level, is it bullying by management or maybe even working to escape personal issues? Find out the problem and help to sort it out if you can.

Every financial month end, when we're up against deadlines, and it's "all hands to the pump", our employee goes off ill. We think it's just to avoid the busy periods and its creating real problems with those who are left to cope. What can we do?

Take notes of the circumstances so that you can speak with the employee about his/her pattern of absence. Hard evidence of dates and patterns such as this will be hard to shrug off, and the employee must address the situation. Explain the burden that the absences are having on the team and find out if the employee feels that he/she cannot cope with this time of the month.

If this is a capability issue provide a way to improve, set targets and support him/her to progress with regular monitoring sessions. If the workload is genuinely unreasonable, then consider how this could be spread more evenly. If the employee does not feel he/she can improve, and your expectations are reasonable, then discuss suitable alternative positions or progress further down the capability route.

An employee absent due to stress is refusing her consent for a medical report. Can we withhold her sick pay until she agrees to a report?

You can insist on a medical assessment only if you have a clause in your contract to this effect, and you can only withhold contractual sick pay if your contract permits this: otherwise you must pay the contractual sick pay due. If the absence cannot be supported, and this action does nothing to assist encouraging the employee to co-operate, then if you progress towards termination, you would confirm to the employee that any decision will be based on the information to hand, because you were prevented from gaining medical assistance to help with the decision.

We are about to install a new IT system. We know that some of our more senior employees will react negatively to this, and wonder how to deal with it as I'm sure some of them will go off with stress. The last system upgrade was a disaster!

Involve your employees in assessing the impact of, and planning for the change so that they feel some responsibility and are part of this, rather than allowing them to feel that the change is happening to them. Ways to assist this are to ensure there is plenty of time for these employees to find out about the new system and ask lots of questions and have time to play with it before it is live. You could assign certain parts of the project to these employees so that they feel "in the know" and even become specialists in the part they have learnt. You say these are senior employees - so make them feel like role models as they have the experience, and hopefully competence - all they need is the updated knowledge too. Ask them to problem solve all the issues that might come up with the new system, (which is what they would do when it was live anyway) and then give them the task to helping to work out how to improve the system before it is launched.

I have two employees doing a similar role, and can rely on one to get tasks done more than the other. Due to the pressure I am under I have given most of the work to the reliable employee and now both are unhappy! How do I deal with the situation?

You have two different kinds of work-related stress issues here, overload and underload. The overloaded employee may have initially felt good about being selected as the reliable one to receive the work, but will now be aggrieved that he/she is carrying more load, and possibly that he/she is paid the same as someone doing less work. The under-utilised employee will not be feeling valued, will probably have slowed down his/her work rate and will be feeling resentful and negative (or if a lazy sort of person may have been quite happy for a short time, but may now be bored).

Resolve this situation by helping the under-utilised employee to regain and improve on his/her competence to do the role. Allow time for training for both staff so they can get to the same level and can then cover each other if one is absent. Provide plenty of motivation for both members and once at the same level ensure the workloads are similar.

Failure to act to reduce stress

Successful work-related stress claims have so far been based on the employer being aware of the stress and doing nothing to alleviate the causes at work - therefore the resulting injury was foreseeable and could have been prevented. In these cases the employee can resign and claim constructive unfair dismissal. For unfair dismissal claims the limit is currently £60,600, but usually the award is less, depending on the actual losses suffered by the claimant. The employee has three months from the termination date to make the claim.

For a disability discrimination claim, there is no limit on the compensation, which covers failure to make reasonable adjustments, financial loss and also injury to feelings.

Personal injury claims are not widespread as they are tough to win, the injury from stress has to be work-related and liability of the employer proven. These cases can also be made to the High Court or County Court, but regardless of venue, there is a time limit for making a claim, that is within three years of the injury itself.

Whilst previous guidance from the Court of Appeal in Hatton v Sutherland said that "an employer who offered a confidential advice service with referral to an appropriate counselling or treatment service was unlikely to be found to be in breach of their duty towards their employees", the mere provision of a counselling service is insufficient to cover you if your behaviour as the employer is the cause of the stress!

In Intel Corporation (UK) Ltd v Tracy Ann Daw, Ms Daw's work involved payroll integrations following acquisitions of other companies. Following a reorganisation, her workload was increased as was the number of managers to whom she was accountable. Ms Daw made it clear to her managers that she had insufficient resources to cope with her workload and was having to work excessive hours - she made at least 14 written and verbal representations to her managers. Despite reassurances made by managers, nothing was done.

The Court of Appeal found that Ms Daw suffered from work-related stress as a result of confused reporting lines and lack of assistance. The injury to her health was reasonably foreseeable by early March 2001 and the employer failed to take appropriate action - resulting in her nervous breakdown in June 2001.

She claimed negligence and was awarded a total of £135,000. Intel appealed arguing that they provided a counselling service for their employees and therefore didn't need to do anything else (Ms Daw did not make use of this service), also the injury was not foreseeable because it happened so quickly. The Court of Appeal decided that the provision of access to a counselling service does not discharge the employer's duty of care to its employees. Counselling would have made no difference in this case - what was needed was a reduction in workload to manageable levels. So - if an employee has made a specific complaint and you fail to take any action to alleviate the problem, the existence of a counselling service will not get you off the hook!

For further information see our stress at work page - http://www.intellecthr.org/docs/guides/stress.html

If you don't have a stress policy, then consider introducing one - it's always better to have this in place BEFORE it is an issue and to provide routes to a solution, rather than hoping that you won't ever have a problem. See our template stress policy - http://www.intellecthr.org/docs/pol/stress/custom.html

Further information is also available from the HSE which offers a useful self assessment tool and from ACAS who publish a guide to stress - links to these are on our stress at work page.

Summary

Irrespective of whether the issue is personal or work-related, don't leave a potential stress issue to fester: it will cause you problems. Learn to recognise the signs and ensure line managers are made aware of the causes and symptoms of stress.

Do keep an eye on those who are working excessively long hours and do everything you can to reduce the need for this. Ensure that you have detailed records of the hours your staff are actually working - so that no-one can claim (later) that you have forced them to continually work excessive hours and that you were aware of this, but ignored it.

Consider implementing a stress policy that provides your employees with a procedure for raising any issues and for tackling stress within your organisation.

The potential cost of stress is too great to ignore - not just in terms of sickness absence, low morale and productivity, mistakes, arguments in the workplace, impact on colleagues - but also in terms of staff turnover. If you ignore complaints of overwork, then you may well lose your valued and trained employees to a competitor; if they stay with you, you may face absence followed by a claim for illness and constructive dismissal.