Liability and Avoiding Stress Claims in the Workplace

Avoiding Stress Claims In The Workplace – Employers Perspective

Do you want to avoid dedicating a shed-load of resources dealing with a stress claim either in, or out of the courts?  Do you want to maintain a reputation as a credible employer?  If yes, then as soon as you are aware there might be a stress related problem  amongst your workforce, our advice would be to invest a relatively small fraction of time and money with a stress management expert like a Coach or a Professional Counsellor to work with you and your employee(s) .  This is much more likely to ensure a win-win outcome than any other route you will take.  Once an employee is able to take control of his or her own stress, they will feel empowered to make choices which may include leaving the company of their own will, or seeking to resolve the issues hand-in hand with you, rather than against you.

It is inadvisable to try to provide a counselling service yourself.  An unskilled counsellor can do more damage than good, and even the services of an in-house counselling service may not work that well if your employee mistrusts you as an organisation.

In summary:

• Ensure that you support your employee and document your attempts to help them
• Try to understand and find a solution to their specific challenges
• Seek the help of an independent professional counsellor, or stress management coach

An Employees Perspective

What you will gather if you go on to read the information below, is that the way to deal with stress in the workplace is not through the courts.  It is highly unlikely that you will win, and of course the whole process of taking an employer to court is in itself incredibly stressful.  The first thing to do if you recognise that you are stressed is to seek independent help from a professional.  A professional will never divulge the details of your conversations with your employer as they will have a confidentiality clause within their contract.  If your employer cannot, or will not pay, invest in the services of a credible person yourself.  Alternatively, there is a mountain of information about dealing with stress to be found on the Internet. 

Once you recognise you are stressed, what you need to do as soon as possible is get to an emotional place of feeling more in control.  You may not appreciate that this could ever be possible given your current circumstances, but as someone who has experienced stress in the workplace, and who has worked with many, many people who have suffered from it, I guarantee you will feel more empowered once you’ve shared your issues and once you have begun to work through your emotional response to it.

Difference Between Coaching and Counselling

A very crude but helpful way to differentiate between a coach and a counsellor is that a counsellor can help clients who are depressed, or suffering from the effects of past issues or trauma to deal more effectively with their present life.  A coach can help clients who are generally well, and who are seeking strategies that offer more positive outcomes now, and into their future.  Counselling tends to be based on understanding and coming to terms with past issues and coaching tends to be about making choices that help determine a more positive future.  The best way to find the right person for you is to speak with them and if you gel, and you’re satisfied with their professional status, trust your instincts.  You will achieve the best results with someone you are comfortable with.  Your GP can refer you to a counsellor, although you may experience a long wait and you are likely to be limited to approximately four to six sessions.

What Causes Stress At Work?

As we all know, the causes of stress at work are numerous and varied.  Some of us thrive on it while others fall apart at the mere mention of the word.  However, some common factors include bullying,  frequent change or instability, too much work, long hours, poor communication, and poor working relationships.  Most have a common theme of feeling out of control of the situation.

Legal experts at ‘Connected’ offer the following information:

What Does Stress Mean When Bringing About a Claim?

A successful claimant must prove they have suffered a recognisable psychiatric injury.   “Occupational stress”, “anxiety”, “feeling depressed” and other similar terms are not sufficient.  A diagnosis will need to be made by a consultant.

Employer’s Liability

There are three legal requirements that must all be established before a court will find an employer liable to pay compensation for stress injury:

1. The employer ought reasonably to have foreseen that the employee was at risk
2. The employer failed to take reasonable steps to prevent such foreseeable injury
3. A recognisable psychiatric injury occurred as a result

Proving that the illness was foreseeable to the employer is fundamental to the success of a stress claim.  It is the employees responsibility to make it clear to the employer that there is a risk of impending harm to health arising from stress at work, thereby triggering the employer’s duty to do something about it. 

This of course is one of the most challenging things for an employee to initiate, and for a responsible employer to manage thereafter. 

Work Overload Claims 

An employee has to be able to prove that the psychiatric harm they suffered was foreseeable. Of course, this is extremely challenging and so claims are rarely successful.

Bullying and Harassment Claims

There are two ways this kind of claim can be made, the first under negligence, the second under the Protection from Harassment Act 1997. This Act does not require foreseeability of injury.  The conduct complained of must be extreme, stopping little short of what would amount to criminal behaviour.  It must be established that the conduct was

• oppressive and unreasonable
• targeted at the claimant
• happened on more than one occasion

Once again, claims of bullying are difficult to prove because its so subjective.    The claimant needs to prove that they were the victim of a campaign of bullying that was likely to cause mental illness.

How Can Swan Coaching Help?

Swan Coaching is happy to provide employees and employers with an independent, professional, and confidential coaching service to help provide effective solutions to stress in the workplace.  Call us on: 01582 413013, or email us at: swancoaching@btinternet.com