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The challenge of managing employee stress has grown significantly since the start of the pandemic. Not only are employees more likely to experience stress now than they were previously, but virtual and hybrid working have also made it harder for employers to discharge their legal duties.
In the latest episode of our podcast, Employment Law Focus, employment partner Jonathan Rennie and regulatory partner Duncan Reed discuss where they see employers going wrong, and how employers can execute their duties responsibly and protect themselves in the event of a claim.
According to Duncan, there's a greater onus on organisations here than many perceive there to be.
The legal position is fairly clear: If an employer is notified or aware that someone is suffering from stress, they must carry out a stress risk assessment in relation to that individual.
However, a lot of organisations don’t do this. The employee may be referred to occupational health and spend a period off work, but what you won't often see is a real examination and pause for thought around what adjustments can be made to their role, and how to monitor those going forward.
There may be a number of factors contributing to someone’s stress, but just because someone is facing difficulties outside of work, doesn’t mean an employer can disregard any internal factors. They still have a duty to dig into what’s causing the stress and assess any workplace issues.
Employers must have a “suitable and sufficient” stress risk assessment for each individual employee, rather than just looking purely at their role in the organisation, for example. In other words, this shouldn’t be treated as a tick box exercise. It must be personal to the individual and their situation.
Jonathan recommends talking openly with staff about the possibility of them becoming too stressed or mentally unwell, to encourage employees to speak up if they’re struggling and respond to support.
Jonathan adds that it's best to speak to staff at the earliest stage possible, and to not try and engage in an assessment of whether there's a risk around constructive or actual knowledge of a mental health condition (referring to our previous episode on the rise of the disability agenda).
Keep individuals updated on what's happening, so that they feel involved and reassured, and have regular keep in touch meetings or calls so that they can share any concerns.
Video calls can present a barrier to having hard conversations, because you're having to really look at someone in a small field and, depending on your settings, you may be able to see yourself reflected back. Employers need to consider how to run these meetings and how to ensure they go well.
Employee assistance programs and other avenues of support are now seen as a given in some sectors, but in others, it's time to catch up and have a look at what's available.
In case of a claim, employers should retain as much evidence as possible about what services are on offer to employees, and evidence that has been communicated to the relevant employee.
This is one of the Health and Safety Executive’s main focus areas, because of how widespread an issue it can be. They have significantly increased the information available on their website for employers about stress and home working, and kept this up to date throughout the pandemic.
You can listen to Employment Law Focus via the podcasts page on our website or your favourite podcast app. Please rate and review us if you’re enjoying the podcast, and subscribe so that you don’t miss an episode. We’d also welcome any suggestions for future topics.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.
19 January 2022