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Published 20 October 2020
Occupational Stress claims remain relatively low volume. However, societal attitudes to mental ill-health and wellbeing have evolved rapidly in recent years which may encourage future claims particularly given the difficult circumstances many have found themselves in since March 2020. Unlike many other conditions, occupational stress can arise across all sectors and industries meaning that no employer can afford to ignore this particular risk.
As a result of COVID-19, on 23 March 2020 the Prime Minister announced that people should work from home if possible, and the government guidance changed again from 1 August 2020 when the government ended its work from home guidance and instead gave employers discretion, asking them to decide how their staff can operate safely. The guidance changed again on 22 September 2020 to work from home if you can. With recent acknowledgment that the UK is again at a COVID-19 tipping point, a substantial proportion of the workforce is likely to be remote working for the foreseeable future.
Many surveys have reported increased stress levels amongst those unexpectedly finding themselves having to work from home during the pandemic. Home workers may feel isolated, anxious, have a lack of perspective, worry about reductions in hours, possible redundancy or fear of contracting COVID-19. Unfortunately with staff working remotely there is less visibility of potential warning signs.
Employers continue to have an overriding duty under section 2(1) of the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. Therefore employers cannot afford to allow the lack of physical proximity to lead to blissful ignorance and should put in place supervision processes to maintain regular contact to identify and address any concerns so far is reasonably practicable. Whilst signs still have to be plain enough for a reasonable employer to realise that they should take action, it is no defence to ignore signs that are readily available, such as for example unexplained changes in performance metrics.
Notwithstanding the above employers are only expected to do what is reasonably practicable, therefore it is sensible to retain evidence to demonstrate what steps were taken to obtain and provide resources (e.g. laptops or IT solutions such as installing Zoom so colleagues felt able to connect virtually) as well as recording options that were considered but not implemented (e.g perhaps a lack of ability to increase server capacity restricting certain activities). It is essential that employers keep up to date with guidance and be ready to respond to changes in legislation at short notice. In particular, employers should keep risk assessments and guidance provided to employees under regular review (and keep older versions of such documents as well as documenting the basis of decisions to amend to demonstrate compliance with changing advice from the government).
The case of Hatton v Sutherland (2002) remains the leading authority but it is now almost 18 years since that decision and it would not be surprising to see a case run to seek to revise or clarify the guidelines, with potentially greater expectations placed upon employers to follow a line of enquiry from earlier signs of problems than may have been considered “ plain enough for an employer to realise that they should take action “ back in 2002. Indeed, HHJ Cotter held in Bailey v Devon Partnership NHS Trust (2014) that the health and safety landscape had changed considerably since Hatton in terms of the acknowledgment of the importance of adequate risk assessments and comprehensive guidance available in respect of stress at work. HHJ Cotter held that a duty to assess risk in relation to stress in a workplace could now arise at a much lower threshold and such an assessment might well put an employer on clear notice of the need to take adequate steps to prevent an employee from injury. Such steps might include a more detailed personal assessment which might then provide indications of impending harm to health arising from stress at work. If tested, the higher courts may well approve such an approach. If that occurred it is likely that there would be an increased volume of claims, particularly if employers are unable to demonstrate proactive steps to monitor welfare for those working remotely during the pandemic.
Notwithstanding the above, employers should not accept that an increase in claims is inevitable. In particular a proactive approach to monitoring wellbeing will not only improve claims defensibility, but could enable employers to harness the benefits from the lessons learnt regarding technological advances to support remote working whilst also minimising risks. Earlier recognition of mental health issues should lead to better management, treatment and support with an increased focus upon wellbeing potentially providing for a happier, healthier and more productive workforce.
Some simple tips to enhance wellbeing and assist minimise the risk of an increase in COVID-19 related stress claims include:
All the above said, if an increase in claims is to be avoided a multi-disciplinary approach should be maintained, incorporating well-being tools to maximise resilience and reduce the pool of those that may be susceptible to making a claim through to more conventional claims defensibility techniques such as keeping policies, risk assessments and procedures up to date, as well as ensuring the remote supervision necessary to ensure their effective implementation during the continuing increase in COVID-19 related remote working.
Our disease team deals with a number of occupational stress cases on a regular basis. For more information or advice, please contact one of our experts.
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Olugbenga Dansu, Jack Reynolds