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Employers' legal duties and the law on stress at work

Employers are required by law to do much more than provide counselling for individuals affected by stress-related illnesses. They have a duty to prevent and control workplace stress. A number of pieces of legislation are relevant:

Health and Safety at Work Act 1974

Employers have a general duty under Section 2 of this act to ensure the health, safety and welfare at work of all their employees. A responsibility for health includes mental health. The Health and Safety at Work Act also requires employers to provide safe equipment and working environments, safe methods of work and information, instruction and training. Inadequate provision of any of these can increase the risk of workplace stress. The inclusion of stress and mental health in the provisions of the Health and Safety at Work Act has been borne out by a recent Court of Appeal ruling that an employer can be found negligent if it does not take steps to protect an employee's mental health from the results of overwork or stress (Health and Safety Information Bulletin October 1993).

Systems of work that give rise to risk of stress are clearly not safe, and the employer therefore has a legal duty to make improvements, at least "as far as is reasonably practicable" to eliminate or adequately control the risk.

The phrase "so far as is reasonably practicable" means that employers can find a balance between the cost, time and trouble of making a job safe, and the likelihood of that job causing injury or illness.

Employers must make all improvements necessary to eliminate risks that they can foresee unless the cost of doing so grossly outweighs that risk. This process is known as cost benefits analysis. In order to make this process fair, an estimation must be made not just of the costs, but of the possible benefits of improved working conditions in terms of reduced sickness absence and staff turnover, avoiding claims for compensation and improved morale and productivity.

The law hinges firstly on a notional "reasonable employer"; secondly, on the foreseeability of risks according to available knowledge from, for example, HSE Guidance, trade press, views of staff and their representatives; and thirdly, the steps a reasonably prudent employer could be expected to take in the circumstances, bearing in mind the cost benefits analysis.

So, if problems are brought to the attention of management by staff or preferably by their trade union representatives, the employer is obliged to investigate the nature and extent of those problems, and to take steps to control or eliminate them.

In addition to the general duties in the Health and Safety at Work Act, employers now have to comply with the more specific provisions of recent UK legislation implementing several European directives.

Management of Health and Safety at Work (MHSW) Regulations 1992

The MHSW Regulations require employers to adopt modern risk management techniques.

Employers must:

• identify any hazards and make an assessment of all the risks to the health and safety of their employees, and to record the findings of the assessment.
• review and modify risk assessments at regular intervals; when there have developments or changes in the work; if 'adverse events' have taken place (for example workplace accidents or illness have occurred).
• apply the following principles or hierarchy to preventive and protective measures:

• provide health surveillance where the risk assessment shows that adverse health conditions have occurred or are likely to occur under the particular conditions of work.
• Employers must consult safety representatives in good time on any changes that may affect the health and safety of employees including the planning and provision of training.

The primary benefit of the health surveillance provision should be to detect adverse health effects at an early stage. In addition, it is a means of checking the effectiveness of control measures, providing feedback on the accuracy of the risk assessment, and identifying and protecting those who are at the greatest risk.

There needs to be a system for early detection of symptoms and rehabilitation in the context of a preventive strategy, aimed at identifying causes in every case. However there must be some guarantees in place - workers cannot be expected to admit to health effects that may damage their employment prospects!

Regulation 6 obliges employers to appoint one or more competent persons to assist them in identifying and implementing the preventive and protective measures required. A competent person is described in the Regulations as being someone who has sufficient training and experience or knowledge and other qualities, and may be enlisted from outside the organisation or recruited from within it. Usually where a safety officer already exists, they will be the competent person, or the employer may wish to use consultants. However they decide to go about fulfilling this duty, the employer must consult the trade union safety representatives as to the appropriateness of the appointment and the adequacy of assessments and control measures. Although assessments are management duties, safety representatives may very well want to be involved in carrying them out, since they coincide with safety representatives' functions in carrying out inspections and monitoring management's compliance with relevant legislation. Representatives can provide invaluable information and expertise from the trade union on best practice.

Safety Representatives and Safety Committees Regulations 1978 (SRSC Regulations)

The principal mechanism for consultation and representation on health and safety in the workplace is provided by the SRSC Regulations. The SRSC Regulations were introduced under the HSW Act and have the same legal force at the Act itself. Where there is a recognised trade union, the members are legally entitled to elect at least one safety representative. Safety representatives have the right to inspect the work place, get information held by the employer relating to health, safety or welfare, paid time off for training and to carry out their functions.

Safety representatives should:

• gather information from management. For example any data on number and causes of death of employees, and data kept by management on sickness and from the accident book, as this may be useful in identifying patterns and in building up a case for positive action on stress.
• arrange meetings with other representatives and shop stewards to discuss strategies for collective bargaining on stress, as well as seeking support from the branch, regional office and union health and safety officer.
• distribute information on stress to members; organise meetings, ensure that everyone knows that stress is a trade union issue and how they can deal with complaints and concerns.
• conduct membership surveys or questionnaires of health symptoms and causes. Stress surveys are a vital tool to help involve other workers, build awareness and assemble evidence of the problem (see below for a sample questionnaire).
• raise the issue, backed up by the information and the case you have established, at the safety committee and start negotiations with management.
• contact your local hazards centre for advice and support, and to contribute information to them.
• organise inspections to look at the workplace causes of stress.
• list the stressors in your workplace. From the list choose your priorities for action. Discuss these and propose strategies for dealing with the priority problems.
• use the results of the survey to prepare a leaflet for discussion with members on the stresses in your workplace. Note priorities and ideas for action.
• keep members informed at all times about progress.

Safety committees

Regulation 9 of the SRSC Regulations states that where there are two or more safety representatives (not necessarily from the same trade union) ask the employer in writing to set up a joint management/trade union safety committee, they must do so within three months in consultation with the representatives. The committee must be balanced - management representatives must not outnumber trade union representatives.

Rail workers resist stress panels

Several years ago, traditional signal boxes in and around London were phased out, and control of overground train traffic switched to four main "power boxes".

Individual workers in each of the power boxes control a panel which regulates a section of the rail network. The panel includes rows of brightly coloured lights and other electronically displayed information [?]. The rooms are lit by fluorescent lights. The work is highly responsible and demands extreme concentration and quick decision-making; if the planned route or timetable of one train changes it can affect the regulation of all the other trains being controlled by the panel worker. The work is organised around four overlapping eight-hour shifts covering 24 hours a day.

When panel regulation was first introduced, workers were expected to work an eight hour shift on the panels, with only a 20 minute lunch break. Not surprisingly, the incidence of sickness absence caused by mental fatigue, headaches, eyestrain and even blackouts, was very high. The panels were renamed "stress panels" by the workers.

Fortunately for the panel workers, the RMT safety group, chaired by safety representative Raj Kumar, successfully negotiated an end to the one-break shift, and replacement by a work pattern including breaks of at least 20 minutes every two hours. Furthermore, during particularly busy rush hours, the agreement allows for the panels to be staffed by two, rather than one, workers.

As a direct result of these negotiations, by six months after the new work patterns were put into operation there was a drastic reduction in health problems.

This excellent example of the way in which safety representatives' action can protect the health of their members is now under threat from the privatisation process. However, with ample evidence of the effects on health of continuous stress panel working, RMT members will fiercely protect their negotiated right to regular breaks.

As Raj Kumar puts it: "It makes no sense to force workers to operate the stress panels continuously - quite apart from the effect on workers' health, it costs British Rail far more in sick pay than they could gain by increased productivity. Furthermore, pushing workers to the limits of their endurance every shift would increase the risk of error, and subsequent delays and difficulties in regulating the rail network."

Workplace (Health, Safety and Welfare) Regulations 1992

These regulations cover workplace conditions such as ventilation, temperature, lighting, cleanliness, space, and drinking, washing and rest facilities. As discussed previously, failure to provide and maintain these facilities can be a source of workplace stress. Regulation 25(4) specifically requires employers to provide suitable facilities for pregnant or breastfeeding women to rest. Regulation 25(3) requires the provision of rest facilities free of tobacco smoke for non-smokers.

Trade Union Reform and Employment Rights Act 1993 (TURER)

Although this legislation is intended to further weaken trade union rights, it contains a number of provisions that are important for those trying to improve workplace health and safety.

Section 28 provides protection for employees from victimisation because of health and safety activities and improved rights for pregnant women. Pregnant women who would otherwise have to be suspended from work on health and safety reasons have the right to be offered suitable alternative work, or if none is available, to be paid while suspended from work. Although, even after implementation of this Act, the UK still has some of the worst provisions in Europe for pregnant women, this clause should go some way to reducing the stress caused to pregnant women - and the consequent risk to health of women and their babies - of working in dangerous conditions.

Common law duty of care

Employers have a common law duty of care for their employees' physical and mental health. Employers may be found negligent if any employee develops a stress-related mental illness or condition as a result of a "reasonably foreseeable" incident.

An employer's common law duty also operates as an implied term of the contract of employment (Health and Safety Information Bulletin June 1994). Any contract which imposes an absolute obligation on an employee to work an excessive number of hours on regular basis may be void under the Unfair Contract Terms Act 1977 as it may be regarded as an attempt by the employer to avoid liability for death or personal injury. There is a fundamental implied duty of mutual trust and confidence in every contract of employment. This duty may be breached as a result of serious or consistent abuse directed at an employee by the employer, or a failure by the employer to protect employees who are subject to abuse from other colleagues.