In my role as a trainee of the
employment group, I recently attended a seminar at barristers’ chambers in
London on the topic of “Stress as a Disability” within the workplace. The
seminar explored employers’ responsibilities towards employees experiencing
stress, which can be considered a disability under the Equality Act 2010.
Under the Act, an employee has a
disability if they:
(1) have a physical or mental impairment that,
(2) has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
To be considered as “long term”, the effect on the employee’s ability to
carry out normal day-to-day activities must have already lasted 12 months, or
be such that it will last for at least 12 months.
Stress conditions can therefore amount to “mental impairments” if they
cause long-term symptoms affecting an employee’s daily life; for example, low
mood, anxiety, inability to sleep, loss of appetite or inability to
concentrate.
What makes it more difficult for employers is that an employee does not
need to have been diagnosed with a specific medical condition such as
depression or anxiety to be “disabled” for these purposes; in some cases, it
will be sufficient for the employee merely to alert their manager to some of
the symptoms mentioned.
Of course, most employers want to ensure that their workforce is happy
and healthy. They also usually recognise
that providing support to an employee with stress-related symptoms can prevent
their condition from deteriorating (which, in turn, could help prevent that
person taking a long period of sick leave and the employer having to organise
cover for their role).
"But do employers really need to go out of their way to assist employees complaining of stress? The short answer, as you may have guessed, is yes."
Employers have a duty
to make “reasonable adjustments” for employees suffering from a stress
condition that could amount to a disability.
This could include reducing the employee’s workload, responsibilities
and/or hours, transferring them to a different position or department, and
offering them counselling.
Employers that fail to make reasonable adjustments could find themselves
facing discrimination claims from disgruntled current or ex-employees. Even worse is that compensation for discrimination
claims (unlike claims for unfair dismissal) are uncapped – so employers found
liable could be forced to make big pay-outs.
However, using the criteria set out in the Equality Act 2010, it can be
difficult for employers to determine whether an employee complaining of stress
does in fact have a disability and, if so, what steps should be taken to handle
the situation effectively.
"This is where the employment practice group comes in."
While the group does, of course, act for employers (and, indeed,
employees) in discrimination claims, a large part of its work involves advising
employers on day-to-day employment law matters and, in particular, how to avoid
potential claims.
So, for example, a client’s HR manager might contact us for advice about
managing the return of an employee that has been signed off work for
stress. Depending on the circumstances,
we might advise them to:
(1) get an assessment of the individual’s health from an Occupational Health professional; and/or
(2) arrange a return to work meeting with the employee to discuss matters including likely triggers of stress and formulate a return to work plan; and/or
(3) carry out an ongoing risk assessment of the employee.
An alternative scenario might be a client asking us for more general
advice about dealing with stress in the workplace, in which case we could suggest
that they introduce training to help managers identify symptoms in employees
and respond appropriately.
We could also offer to review the company’s
policies, such as its sickness absence management policy, to ensure that the
correct procedures are in place to deal with such situations.
Attending the seminar was a valuable
experience and highlighted to me some of the specific skills that an employment
lawyer must have; in particular the ability to respond to frequent changes in
legislation and case law, to think creatively to assist employer clients and
pre-empt potential claims as well as dealing with existing ones, and to make
tactical considerations in connection with such claims.
Posted by Elisabeth Kynaston, trainee in the employment practice group.
Elisabeth Kynaston started her training contract with B P Collins in February 2014, having previously worked at a legal publishing company and a legal advice centre in East London. She graduated from Durham University with a first class honours degree in Ancient, Medieval and Modern History. Elisabeth has completed the Graduate Diploma in Law and Legal Practice Course at the University of Law, Bloomsbury, both with distinction.
