Employment Law Focus: Burnout and workplace stress

Chronic stress impacts employee wellbeing, productivity and company performance.

With the World Health Organisation now classifying burnout as a workplace disease, employers need to understand their legal and moral duties to prevent, identify and manage this issue.

In this episode crammed with top tips and examples we look at:

• What causes burnout, from workplace factors like always-on technology and a culture of out-of-hours working to external events like Brexit anxiety
• How some companies are managing the risks, from mental health first aiders and regular wellbeing days to 32-hour working weeks and not delivering emails out of hours
• The lengths employers can be expected to go to ensure that someone can remain in employment – but does extreme burnout always require an extreme remedy?

And in our news round-up we cover:

• A discrimination case involving an employee's social media post (read our latest article on social media issues);
• New legislation and guidance on the use of NDAs or "gagging clauses" (read Siobhan's comments in People Management); and
• Bereavement leave for pets – could this become law and how to deal with it.

Useful links from this episode

The Stevenson / Farmer review
Equality Act 2010 Code of Practice
HSE stress risk assessment template

Send us your questions for the next episode – email emplawpodcast@tlt.com or tweet us using the hashtag #TLTemploymentpodcast and tagging @TLT_Employment

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Transcription

Jonathan: Hello and welcome to Employment Law Focus. I'm Jonathan Rennie, a partner and member of TLT's national employment team and I'm joined by Siobhan Fitzgerald, a partner in our Bristol office.

Siobhan: Hello.

Jonathan:  We also have Fraser Vandal with us, a solicitor in our Glasgow office.

Fraser:  Hi there.

Jonathan: So as we're all now back to work after the summer break and minds are turning from sunbed to desktop, we thought this would be a good time to discuss something that's really raced up the agenda in the business world recently. I'm going to talk about burnout.

Burnout is essentially talking about employees whose health suffers because they struggle to know when to stop. I'm sure everybody listening has felt stressed at work, including myself obviously. But burnout has recently been categorised by the World Health Organisation as a workplace illness, and that really is a significant development. It raises some very serious and also complicated questions about employers' responsibilities for their employees' wellbeing. In this episode we'll be looking at questions including whether if you have an agoraphobic employee, that working from home is sufficient to meet your reasonable adjustment obligations for that person. We'll also be answering the question as to whether hot desking for somebody with a social anxiety disorder actually works or can create its own set of problems. And we're also going to look at that perennial question of whether you're obliged to create a new post for somebody who is disabled and whether the creation of a new post is a reasonable adjustment of itself.

Before we delve into these questions, Fraser is going to run through three recent employment law news items which have caught our eye in recent weeks around firstly, social media, secondly, nondisclosure agreements and thirdly, bereavement leave for pets.

Fraser:  So first off, social media is something that we've spoken about a lot. This time around it was a case relating to London Heathrow Airport. The case involved two individuals, a Ms. Stevens and a Mr. Forbes. Ms. Stevens went onto her own Facebook page and posted a picture of a Golliwog with the caption, "Let's see how far he can travel before Facebook takes him off." So pretty safe to say that within that comment itself was a realisation that she probably shouldn't have been doing what she did. The image was posted on her private Facebook account, so it was shared with her friends only. But a colleague at Heathrow Airport showed the photo to Mr. Forbes, who also worked alongside Ms. Stevens. He was offended by the image and brought tribunal proceedings against the airport, claiming harassment, victimisation and discrimination. Because the claim was brought against the airport, it was an issue of vicarious liability. The key question was whether Ms. Stevens could be said to have acted in the course of her employment such that the airport should have been liable.

The tribunal essentially focused on three key areas. One, there was no reference in the post to the airport being Ms. Stevens' employer, and there was no reference to any other colleagues in the post. Secondly, the image was only shared privately by Ms. Stevens to her friends. And thirdly, Mr. Forbes only actually became aware of the post because someone else showed it to him. He didn't directly view that post online. So overall, Heathrow Airport was held not to be liable for the upset caused to Mr. Forbes and I think overall that's probably a sensible conclusion in the circumstances.

Siobhan: Yeah, it's interesting that the employment appeal tribunal was actually pretty reluctant to lay down any specific guidelines or hard and fast rules around dealing with social media issues at work which overlap with work. I mean, what I tend to find is that problems with social media can usually be dealt with by applying many of the same rules and principles that apply to other types of misconduct which are outside of but linked to the workplace. So some of the factors that it's worth thinking about that an employment tribunal, and obviously by extension an employer might be interested in or should take into account, could include whether posts were directed at particular colleagues, how widely the posts are going to be shared amongst colleagues or indeed the wider public, how senior the particular employee is, and I think importantly, whether they show any remorse for their actions. And of course most employers by now will have a social media policy in place, which is always a useful starting point if these types of issues crop up.

Jonathan: Yes Siobhan, I'd agree with that, absolutely. And in the notes that accompany the podcast on the TLT website, we have an article that you can read into a little bit more around this subject which affects nearly all employers actually these days.

Fraser: Another topic that, to a certain extent, has its roots and social media is the Me Too movement. Around the turn of the year, the Equality and Human Rights Commission were tasked with producing a statutory code of practice on sexual harassment. We're expecting that to be published very shortly and one thing that that seems clear will be that there will be something around this idea of nondisclosure agreements and when they can and can't be used.

Siobhan: Yes, Fraser. I think that's right, and in the meantime employers are going to have to get to grips with the government's recently published response to its consultation on proposals to prevent the misuse of confidentiality clauses, which are also known as NDAs (nondisclosure agreements) in cases of workplace harassment or discrimination. So listeners will be pleased to hear that the government has, in our view quite sensibly, acknowledged that confidentiality clauses are very often completely legitimate and it can actually be really useful and helpful for both sides, but it's the abuse that the government is concerned about and wants to really stamp down on.

Legislation is on its way, specifically to make sure that confidentiality clauses can't prevent individuals making a disclosure to the police, to regulated health and care professionals or to legal professionals. And there's going to be new requirements that the limitations of confidentiality clauses must be made clear to those signing them and for the mandatory independent legal advice in a settlement agreement, that many of you be familiar with, that that person has to advise the employee about the limitations of the confidentiality clause and when they may be able to make a disclosure. The new legislation's going to be bolstered as well by new guidance, which is going to be produced by the Equality and Human Rights Commission, the Solicitors Regulation Authority and ACAS to clarify the law and good practice.

I don't know whether you caught it, but I contributed to an article recently on People Management, and if you look in the notes to the podcast you can find a link in to that. But really we were just exploring the current restraints on confidentiality clauses and what the future is likely to look like. So it's well worth the read.

Fraser: So our third and final news article today concerns pet bereavement leave.

Siobhan: Now, Fraser. That'll be one close to your heart. You've got some pets, haven't you?

Fraser: Yeah, I'm the sort of annoying person that can't walk past a dog without pointing it out to everyone in the street. My in-laws have got two very lovely labradoodles. I'm not sure what their podcast preferences are, but hello Mollie, hello Max, if you're listening. I know we joke about this and pets, but the reality is this is an issue for quite a number of people and it's all been sparked off fairly recently by an individual who alleged that they were dismissed from their role for failing to turn up for work the day after their dog had died. Now, there's obviously fairness issues in that, from a general unfair dismissal perspective, but there's no real specific rights to leave in relation to leave for this type of issue in the UK. The individual in question who's making these allegations is currently in the process of petitioning the UK government to have the time off for dependents legislation stated to expressly cover bereavement leave for pets.

You can see the sense in that, but equally when we're in a position where there isn't necessarily equivalent specific protection for human bereavement, it does throw up the question of where priorities should lie. What we do have at present is we've got an awful lot of detailed guidance from the RSPCA, and we've also got quite a lot of ACAS guidance on bereavement generally. In terms of recommendations, I would say try and treat this sensibly, with a bit of sensitivity and really the focus should be on not exacerbating any stress or discomfort that an employee is going through at that particular time.

Jonathan: Let's now take a look at the main topic we're going to be discussing today, which is the question of burnout at work. Siobhan, perhaps you could assist the listeners with why this is particularly topical at the moment.

Siobhan: Thanks, Jonathan. And yes, as you said at the outset of the podcast, the World Health Organisation has recently included work burnout in its International Classification of Diseases. So this term might seem fairly colloquial and bring to mind perhaps the clichéd image of an overloaded worker burning the midnight oil at their desk. But the World Health Organisation has refined this term and given it very specific parameters. So if you'll bear with me on this slightly legalistic definition, it's chronic workplace stress that has not been successfully managed, and it's characterised in three distinct ways. So firstly, feelings of energy depletion or exhaustion. Secondly, increased mental distance from one's job or feelings of negativism or cynicism related to one's job, and reduced professional efficacy.

I mean, I think the fact that the World Health Organisation has felt it necessary to include this as a specific category is symptomatic of the fact that it is actually a growing issue and it's one that we, certainly within the TLT team, are being asked to advise on more frequently. It's not just being busy at work but it's overall an increasingly packed life, both inside and outside of work, so with expectations mounting all the time. And we describe new technologies as time-saving, so suggesting that that's going to ease work pressures, but actually sometimes they have the very opposite effect, so causing what we now term a work life blur rather than a work life balance.

Fraser:   I think the reality behind this is that everybody will know somebody that takes their mobile phone on holiday. There's a few people I know that are quite open about the fact that the they sit on the beach and read their emails and reply to emails. Quite interestingly, there was an article fairly recently about this idea of some employees are taking a couple of days' holiday purely to catch up on work. So effectively working from home, not being troubled by others and clearing their backlog.

Siobhan:  Yes, absolutely. That is a worrying state of affairs and completely against the principles of the Working Time Regulations, which set out that workers need to take holiday to mentally take that break and have some time off. I mean, coupled with the increasing pressure to be constantly online at work, it's been reported that employees are also suffering from stress resulting from wider issues. And you might not be surprised to hear this, but the phenomenon of Brexit anxiety or branxiety has been reported. And according to a survey by the British Association for Counselling and Psychotherapy, one in three people feel that Brexit has had a negative impact on their mental health.

And it's thought that the government plays a sort of parental type role in life. So an interesting angle, but sort of underpinning safety and security and the sort of split or divorce, so to speak, from Europe is triggering anxiety in the same way that perhaps a fraught divorce process between parents might cause anxiety in their children. So that's a bit of psychoanalysis for you, but it's certainly an interesting way to look at it. A report was published on mental health and employers back in 2017, you may have seen this, the Stevenson Farmer review, and it's well worth taking a look at if you're grappling with mental health issues in your organisation. Alarmingly, the report says that the UK is facing a significant mental health challenge at work and 300,000 people with long-term mental health problems lose their job every year, which is actually interestingly a much higher rate than those with physical health conditions.

So it seems to be something that employers are struggling to deal with or struggling to deal with successfully to keep their employees at work. And I mean, although the extent of the issue does appear to be coming to light now, the practical reality is that this is really quite a complex area for employers to tackle. Employees suffering from burnout may well not want to admit it because they may be concerned about how that's going to impact on their career. And so they don't want to ask for help. They feel like they've failed and they're embarrassed to ask for time off or help with dealing with their workload for fear of that sort of stigma that's associated with mental health issues, and some of our listeners may have seen that in their own workplaces. But at the same time as the employer providing help and support, there is also an expectation that individuals have to take some responsibility for their own wellbeing. And the employer, whilst wanting to be supportive, doesn't have to be completely paternalistic in relation to all aspects of their employees' lives.

Jonathan: Yeah. Clearly this is not an issue that employers can afford to ignore, and it's having a really profound impact on businesses as well as the people who are at risk. So you've mentioned the Stevenson Farmer report, Siobhan, and this found that the annual cost to employers of mental health issues at work is between 33 billion and 43 billion pounds, with over half of that cost coming from presenteeism where individuals are less productive due to poor mental health at work.

But the question then follows, what are your legal and your moral duties and what approach should you take? What policies should employers have in place for dealing with this serious and growing issue? I myself saw an article in the New York Times this week showing numbers of global organisations who have signed up to a charter promising to focus less on shareholder return and more on employee engagement and wellbeing. It's called the Business Roundtable report and it's a statement signed by 181 US chief executive officers including those at Apple, Amazon and Ford Motor Company, and notes that too often hard work is not rewarded and not enough is being done for workers to adjust to the rapid pace of change in the economy. Perhaps we are actually on the verge of recognising that employers need to take more responsibility and can do more for employee wellbeing.

Siobhan:  Yes. Jonathan, it'll be interesting to see if something like that takes place in the UK as well. There's no absolute clear cut answer on what organisations need to focus on, but managers need to be on the lookout for signs that an employee may be struggling. So for example, emails being regularly sent out of hours, that worrying 4am email or employees behaving in an erratic or unusually negative manner for them. Regular supervision will also be important and helpful. So not leaving the employee to struggle on their own and perhaps training managers on the potential red flags that they need to look out for.

Fraser: One of the more likely legal obligations that could arise in relation to burnout is the question of reasonable adjustments and whether certain other adaptations have to be made to the workplace or the work pattern to account for that. Of course, in order for the duty to make reasonable adjustments to apply, the individual would have to classify as being disabled under the Equality Act, which requires a physical or mental impairment, which has a substantial and long-term adverse effect on the employee's ability to carry out normal day to day activities.

If a case on burnout ever got to the tribunal, I think there's probably a couple of key battlegrounds. One is the long-term nature of the condition. We're looking at 12 months in these cases, as most of you will know. It will be interesting to see how the tribunal will react to that. If, for example, someone takes a three week holiday, goes off to the sun, does nothing for three weeks and comes back, will the tribunal say that they are back refreshed, ready to go, or will they take a more holistic view of the period of burnout? The other idea that could be open to challenge is the impact on day to day activities. These are cases where we often drill down on what day to day activities actually are. But, I think again, there would need to be very serious burnout to stop someone actually doing day to day activities in what we would typically term a normal manner.

If we just proceed on the basis that a particular case of burnout is a disability, the duty to make reasonable adjustments, will only arise when an individual is placed at a substantial disadvantage by either an employer's provision, criterion or practice that we'll call a PCP, a physical feature of an employer's premises, or a failure of an employer to provide an auxiliary aid.

Now, it's worth pointing out that the definition for reasonable adjustments applies equally to those with physical health issues as well as those with mental health issues. And when we're talking about mental health issues, the question often arises as to what is the PCP that the employer has applied? There was a case last year where an employer's long hours culture was deemed to be a PCP. Now, the individual in question in that case had never been forced to work long hours, had never requested to work long hours either. It was just something that culturally happened in the organisation, but the culture was so embedded that the tribunal found that to be a PCP. So very important to bear in mind that these types of cases can crop up when you don't expect them to. And obviously with uncapped compensation in the tribunal for discrimination claims, these could become very costly very quickly.

Siobhan: Yes. And as you said, Fraser, I mean, the duty to make reasonable adjustments kicks in when the case of burnout is quite severe such that it amounts to a disability. So it's an interesting question about whether the remedy or the reasonable adjustment should also be quite dramatic. So should an employer be thinking about things like a six month paid sabbatical or a team of assistants recruited in to help, or is it fine to have something less extreme like a shorter working day or some mindfulness training, for example? The Equality and Human Rights Commission has published a statutory code on the Equality Act 2010, and it provides some helpful guidance so for our listeners it's well worth a read. It's available online and provides invaluable lists of examples of reasonable adjustments and some real life scenarios that you could think about.

And occupational health is also a useful port of call as to what adjustments might be relevant and pertinent in a particular case. The code underlines that there are no particular factors that need to be taken into account when considering whether an adjustment is reasonable so what is reasonable will depend on all the circumstances of each individual case. And I appreciate that sounds like a very lawyerly comment and perhaps doesn't give you much helpful practical guidance, but do have a look at that code on the Equality Act 2010 which I mentioned. So you could consider occupational health advice or even what the employee's own GP might think. I mean obviously, you could also ask the employee themselves. Jonathan, I don't know if you've had direct experience of that. Does that help or not?

Jonathan:  Well, I would say it does help, yeah, and it's essential for employers then to reduce down their legal risks because they can be seen to be consulting with a particular employee and having a better understanding of their condition or even their perception of the workplace, which can be an important point in the sense that the employee may have a different view of matters as compared to the employer. And if you have a very full note of that meeting, I suppose that's helpful as an audit trail and if cases develop to litigation or some form of mediation, then there's a clear focus. So I think employee consultation in this area is essential both with and without medical reports.

Siobhan:  Yeah. Absolutely, I think that's right. I mean, I think sometimes employers are concerned that the employee might ask for something that's completely ridiculous, but I think that consultation angle is really important.

Sometimes we find that our clients are actually quite surprised at the lengths to which employers are expected to go in order to comply with the duty to make reasonable adjustments. And sometimes it depends on the size and resources of you as the employer as well. So if you're a big retail outfit for example, you're expected to do more than the corner shop in this sort of situation. The code mentions examples of arranging disability training for staff for example, if they're working with an employee who suffers from a disability, and also highlights that disabled employees may need to be slotted into any suitable vacancies which arise, even if that might mean retraining or providing other reasonable adjustments such as new equipment for the post or transferring the employee to a position on a higher grade. So it's going quite far, I think.

Fraser: There's been a recent Financial Times report that's focused on this issue more generally. And some of the things that cropped up in that report were that some larger organisations are now hiring onsite therapists to be available to staff. There are some businesses in Scandinavia and New Zealand that are trying a shorter working week, and that's actually had a really positive impact. According to the research, people are seeing their family more, having more down time, getting a fair amount of work done and feeling less stressed as well. Volkswagen in Germany have implemented a system where their internal email servers will not deliver emails to employees between certain times. And in France, employees have the legal right to disconnect. So in effect, if an employee is not available on a smartphone between set periods of time, that will not be misconduct and they cannot be treated less favourably because of that.

From our perspective, we are certainly seeing clients taking a more proactive approach to mental health issues than perhaps they were a couple of years ago. A lot of employers now have mental health first aiders in the workplace, wellbeing champions and wellbeing days. I think that the key with this is, having wellbeing being days are great in terms of promoting this, but it really has to be a cultural shift and it really has to be something that applies in the background throughout the year in order to really press this issue home.

Jonathan:  Yeah, I think my top tip for listeners is to have a look at the Equalities and Human Rights Commission code of practice on reasonable adjustments. It really is an excellent publication. And by that I mean there's a full list of examples in there. For example, somebody who has a physical impairment might then be required to have access to a car parking space. And we know, for example, some employers are very sensitive about making those spaces available, perhaps only to senior people. But that's a very classic example of a reasonable adjustment that should be made for somebody with a physical impairment. So reasonable adjustments, as Siobhan has said, can actually be quite radical and sometimes can challenge your logic or common sense.

If we look at the 2006 case of Southampton City College v Randall, in that case, the employment appeal tribunal said that it would have been a reasonable adjustment for an employer to devise an entirely new job, taking into account the employee's disability. So even going so far as to create a completely new post in order to help an employee could be considered to be a reasonable adjustment. So employers need to be open minded. And of course that open-mindedness might be reviewed if you've had a consultation meeting with an employee and discussed these matters in an open and transparent fashion. And you need to be clear about the extent of the obligation and that you may as an employer be prepared to take quite dramatic steps if it would mean that an employee can remain in employment.

Fraser:  When we're looking at burnout and anxiety conditions, one of the things that we would typically expect to see as a starting point is a stress risk assessment with the employee, and that will involve sitting down with the individual, consulting with them like we've mentioned, and really trying to work out what the stress triggers are and what the risks of those cropping up in the workplace are. It seems like a fairly common sense approach, but we see a lot of cases where that risk assessment isn't carried out. And if you do end up in an employment tribunal, it's really an easy win for an employee's lawyer to ask for the health and safety stress risk assessment. It's often the first point in establishing what types of reasonable adjustments could be considered and is also really useful in terms of helping to frame any future discussions that happen around reasonable adjustments with the occupational health provider.

Jonathan: Yeah, and of course the stress risk assessment is a template document that's available on the Health and Safety Executive website and lists control factors and provides a framework for managing that employee consultation. I think also as an employer, once you have that stress risk assessment, that then helps inform whether you need to instruct an occupational health report according to what responses the employee has provided. So the two marry up quite neatly. Of course, an occupational health report when managing ill health is essential to understand the question of disability, but also the extent of the reasonable adjustments and how to go about implementing those. Clearly the interface between the legal tests and the medical practitioners can be quite tricky, and so we always try our best to help our clients frame instruction letters and help manage the OH instruction process very tightly.

Siobhan: Yes, and one tip as well for dealing with occupational health advisors is if you get a report back and you're not sure or they don't quite answer the question, go back and ask for clarification. You're paying for the report, you're paying for the service.

The other thing for listeners as well is, we're telling you all these reasonable adjustments that need to be made but don't panic too much because sometimes it is the case that a reasonable adjustment just won't work and therefore it wouldn't be reasonable, and therefore as an employer you don't have to make it. So just to give you an example of that, the Equality and Human Rights Commission mentions homeworking as an example of a reasonable adjustment. But there was a case involving the Jobcentre and a Ms. Wilson, where the employment appeal tribunal said that the employer didn't have to agree to her working from home.

Now, she was agoraphobic and she said that that would've been a reasonable adjustment. But the nature of her work showed that it involved face to face interviews with the public, handling confidential files that others in the office needed to access, and therefore simply put, her particular job couldn't have been managed from home. Of course, there might also have been a need to then go on and think, well, okay she can't do that job from home but might there have been something else or an alteration of her duties, which meant she could have done something from home. But I think it's quite helpful to see that the tribunals sometimes do support employers in these sorts of cases as well.

Jonathan:  Yes, and you've also got to be careful about the unintended consequences of reasonable adjustments. So for example, agile working is often mentioned in very positive terms as a means of assisting employees' wellbeing and their work life balance. However, it's quite possible that this might have the polar opposite effect, for example, an autistic employee or someone who has a form of social anxiety disorder who therefore needs structure in their working life and who might perhaps struggle with a working environment where they were expected to be hot desking at different locations.

Fraser:  As well as employers, there is also a recognition from the Equalities and Human Rights Commission that there are other factors that can influence the effectiveness of reasonable adjustments. Managers really should, within the bounds of confidentiality, be aware of the employee's condition and really take time to support them and the implementation of the reasonable adjustment. That in all likelihood will increase the chances of a reasonable adjustment being successful. If we have colleagues that are questioning why someone's working shorter hours or taking longer breaks, then that can often create a bad atmosphere and result in the adjustments not being as effective as they should.

Siobhan:  You may find that if you work in employee relations or another HR role that managers are actually very keen to transfer responsibility for assisting with mental health issues to HR and off their desks so to speak. However, given that the manager, or the line manager in particular, is most likely to know the employee in question and their background much better than HR who's parachuted in to advise, then it is worth making sure that managers have buy-in to the process and aren't just simply looking to quickly wash their hands of the issue.

Fraser: How do we achieve that in practice, Siobhan? Because I think you're right. From our experience, it does seem that managers can on occasion want to effectively step away from the issue rather than manage it.

Siobhan:  Yeah, absolutely. I mean I think it's trying to get managers to see the bigger picture. So yes, it will take some time to deal with this employee at this point to help with their reasonable adjustments, to assist with supporting people who might be approaching burnout. But if they don't do it now, they are going to be facing absence most likely from that employee going into the future that could turn into long term absence. Certainly if this ever turned into litigation or became an employment tribunal case, they're going to have to invest an awful lot of time and effort into preparing for court proceedings or having to explain why they did or didn't do things to their senior managers.

Jonathan: Yeah, I definitely agree with that and I also think there is the potential for these reasonable adjustment issues to be resolved via a form of employer-employee mediation. So it's not enough just to have a HR person meeting with an employee exploring these issues. At some point, the HR person, the employee and a line manager need to get together so there's that full and thorough conversation.

Looking ahead now, we'll obviously let you know as and when there are any updates in these areas of the law, both through our podcast and our legal updates on the TLT website, including our A to Z employment law guide. You can subscribe to this via our website. We should let you know also that we'll shortly be hosting our annual employment update seminars throughout the UK. These will take place in Manchester on the 17th of October, Bristol on the 24th of October, London on the 6th of November and Glasgow on the 13th of November. You can register for these online.

We'd really appreciate your feedback, so please take a moment to email us at emplawpodcast@tlt.com. If you're enjoying the podcast, you can rate and review it and that will mean that more people can take a listen. You can also subscribe on your podcast app so that you don't miss any future episodes.

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