Last reviewed 11 January 2021
A consideration of employers’ duties, best practice and how to manage stress-related absences.
Stress is a major issue in the workplace globally. The Health and Safety Executive (HSE)’s Labour Force Survey found that 49% of all working days lost in 2016/17 were due to work-related stress, depression or anxiety. Compare this with 2018/19, where the figure has risen to 54%.
It has been reported that lawyers expect to see work-related stress claims related to burnout increase due to the demands of the pandemic, now that burnout has been added to the World Health Organization’s classification of diseases.
What is stress?
The Health and Safety Executive (HSE) defines stress as “the adverse reaction people have to excessive pressure or other types of demand placed on them” and lists it as a “psychosocial hazard”. Of course, a little stress can be motivating, but excessive stress over a prolonged period can lead to mental and physical ill health.
Research shows that there is a clear link between poor work organisation, overwork and subsequent ill health.
What are employers’ responsibilities?
Employers have a duty of care under the Health and Safety at Work, etc Act 1974 to ensure the health, safety and wellbeing of employees. This includes taking steps to make sure they do not suffer stress-related illness as a result of their work.
With this in mind, organisations should include stress, anxiety, and depression in health and safety risk assessments and controls or even produce a risk assessment that specifically targets mental health issues. Although not a requirement, this would highlight the organisation’s commitment to wellbeing in the workplace.
We also recommend that all organisations have a stress at work policy in place.
What should a stress at work policy contain?
An effective policy on stress should be developed in collaboration with staff, their representatives and management, and contain:
a statement of intent
the health, safety and welfare policy of the organisation
details of the organisational structure and responsibilities
a description of the systems and procedures in place to either eliminate, minimise, control or treat stress in the workplace.
The stress policy should be reviewed regularly to reflect changes in the organisation and any legislative developments relating to work-related stress.
An important part of tackling stress and the stress policy is to provide appropriate training.
An entry about stress at work and occupational health support should be included in any staff handbook and the key points covered with new staff on induction.
What are the symptoms of work-related stress?
There is a long list of ways in which stress can manifest itself, including:
irritability or outbursts of anger
excessive intake of caffeine or alcohol
regular absence or lateness
high sickness rate
cynicism and defensiveness
weight loss or gain
shortness of breath
regular or lingering colds.
If an employee is experiencing several of these, it is worth having a conversation with them about their stress levels.
Does stress count as a protected characteristic?
In certain circumstances, yes.
If the stress is caused by harassment or bullying, the employee may be able to claim that it’s a symptom of a bigger issue. Particularly if the abuse relates to their gender, age, sexual orientation, race, etc.
Stress generally is not considered a disability. However, stress can lead to conditions that are disabilities under the Equality Act 2010, such as anxiety and depression.
What should you do if an employee is suffering from stress?
The first thing you need to understand is whether their stress is due to external factors or in relation to work.
If the stress is related to external factors, all you can do is provide support. However, if the issue is work related, then you should take a different approach.
Treat the issue as you would any physical problem. By downplaying stress, you risk making the situation worse.
If the employee is stressed due to work, there could well be an issue within the organisation that might grow into something more substantial. If the employee becomes so stressed they feel they can no longer come into work, they may be able to pursue a claim of constructive dismissal. It is in the organisation’s interest to pinpoint contributing factors and resolve them.
Invite the employee to a meeting, (or conduct a meeting upon their return to work if they have been off sick), and ask them how you can help accommodate them moving forward. The stress might be due to a number of factors, or just one, including:
an excessive workload
poor relationships with colleagues
poor relationships with managers
a toxic working environment.
Once the meeting is over, investigate any issues and see if they can be resolved.
Obviously, it would be far better both for the employee and the organisation to reduce the stress before it gets so unmanageable that it requires an absence from work.
Ideally, managers should have good enough communication with their staff that employees would inform them of problems as they arise.
If the employee has not raised an issue but the manager has concerns, they should broach the subject with the staff member. As always, when raising mental health issues, etc among staff, the conversation should be handled with caution and sensitivity.
Once the manager is aware of an issue with work-related stress, they have a number of options, all of which should be agreed with the employee before proceeding.
The first step is to consider whether there are any workplace adjustments (to workload, working hours, etc) that could be made to relieve some of the stress.
If the employee needs more support or is becoming ill, they should refer the individual to the employee assistance programme (EAP). If the organisation does not have an EAP, you could consider an external occupational health provider.
Can an employee have time off work for stress?
Yes. Absence due to stress should be treated the same as regular sickness absence.
As such, the organisation’s usual procedure should be followed, including self-certification for the first seven days of absence. Any absence that lasts longer than this requires a medical note from a GP.
Can we contact an employee who is off sick with stress?
Yes. In fact it is important to maintain contact to establish trust and to keep your employee informed about any changes within the organisation so they feel included. This will make it easier for them to return to work.
However, employers should handle this contact sensitively and not badger or bully the employee into returning before they are ready.
Failure to check in, or contacting them too regularly, will likely make the issue worse.
What’s the maximum time off for stress an employee can take?
Staff signed off work with stress in the UK can take seven days off without a doctor’s note.
There’s no legal definition for when an absence becomes “too long”. It is up to the organisation how much time off to allow the staff member to recuperate.
Do not expect them to return in a day or two, however. It is worth allowing them a reasonable amount of time off and remaining in contact to ensure a sensible return to work when appropriate.
What can we do if the employee is showing no sign of returning to work?
After a long period of absence (this should be specified in your HR policies), the manager may request a formal meeting with the individual to discuss returning to the office.
If the employee refuses to meet, or misses multiple appointments, the organisation can begin to consider a capability dismissal.
Dismissal on the grounds of ill health falls within the “fair” reason of lack of capability. Tribunals have recognised that there is a limit to the ability of an employer to maintain an employment relationship.
However, it is important that the basic cause giving rise to dismissal is properly identified and the procedures followed are fair.
The fundamentals of a fair procedure are:
good absence control procedures and records
investigation of the facts
consideration of alternatives to dismissal.
In stress cases, case law suggests certain principles, as follows.
Always take complaints of stress seriously and investigate the causes, taking remedial action where possible.
In all cases take medical advice.
Identify whether the employee is fit to return to work.
Discover what the possibility of a recurrence of the illness is.
Establish what, if anything, could be done to minimise the risk.
Decide how practicable minimising the risks is.
Consult the employee.
Consider alternative employment.
Dismiss only if there is no reasonable alternative.
It is particularly important to consider whether or not the employee is disabled under the Equality Act 2010.
Under the Equality Act 2010, a person has a disability if they have an impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
“Mental impairment” is intended to cover a wide range of impairments relating to mental function, including learning difficulties. It is the effect of the impairment, not the cause, which is important. This may include stress-related illnesses.
Since 2005, a mental impairment has not had to be clinically well recognised (ie recognised by a respected body of medical opinion) to amount to a disability.
The Equality Act 2010 requires all employers to make reasonable adjustments to enable a disabled employee to continue in their post. Failure to do so amounts to disability discrimination.
For an employee suffering from a stress-related illness, a reasonable adjustment could be (temporarily) reducing their workload or allowing them extra time off work for them to receive professional treatment.
Can an employee claim compensation for work-related stress?
Yes, if they can show that the illness is caused by their working situation. An employee can claim personal injury compensation for stress at work particularly if it causes other health issues.
For employees to pursue a claim, they need a diagnosis from a medical professional. They are more likely to succeed in their claim if the stress was a result of factors such as:
bullying and harassment
denial of employee rights
lack of support.
To avoid a claim, you should ensure the employee has their manager’s full support and that any claims of bullying, harassment, or denial of rights are properly investigated.
If an employee suffers from stress-related ill health and a court decides the employer should have been able to prevent it, then that employer could be found to be negligent. The case will undoubtedly be strengthened if the employee drew the employer’s attention to their problems but the employer did nothing about it.
In addition, if an employer dismisses an employee because they have work-related stress, an employment tribunal may treat this as unfair dismissal unless the employer can show that it acted reasonably. This would include taking all reasonable steps to offer support and making suitable adjustments to working conditions.