Stress is endemic in many white collar professions, financial services and the like, and even in the most unlikely of places such as, say, a building site. But what are the legal implications for companies of these high levels of anxiety among staff?

Stress can give rise to a number of legal claims. If personal injury to an employee results from work place stress, the firm could be liable for damages in a negligence action. Excess stress could also lead to claims for constructive (unfair) dismissal or breach of contract. This is because failure to address stress or its causes may breach a duty implied into the employment contract, including the duty to maintain trust and confidence and the duty to safeguard the employee’s health.

Guidelines for stress were set out earlier this year in the leading case: Barber v Somerset County Council [2004] UKHL 13. The Barber decision took a robust line and endorsed a primarily reactive approach from employers to workplace stress. Protective steps were required only when indications of stress were plain enough for any reasonable employer to realise that action was necessary (although in this case one short period of absence for stress was a sufficient trigger).

But this case may prove t o be the high-watermark of leniency for firms’ failure to address stress. The Health & Safety Executive is consulting over the roll-out of ‘management standards’ to encourage a more proactive approach on stress from employers. The draft standards identify six causes of stress (‘stressors’): demands, (lack of) control, support, (nature of) role, change and relationships. Each stressor has a corresponding list of benchmarks explaining the desired state, and guideline percentages have been set for compliance with the desired state when the workforce, as a whole is surveyed (visit: www.hse.gov.uk/consult/condocs/stressms.htm)

The standards will provide a yardstick against which firms can measure their performance in tackling workplace stress. They are not directly enforceable, but dovetail with the existing legal obligation for firms to conduct periodic risk assessments for each role in their organisation, by providing a way to predict stress as part of the assessment process. Their effect may be to ‘raise the bar’ as to the measures expected from firms to discharge their legal duties regarding stress.

Steps to reduce exposure to stress claims include:

• Conduct of periodic risk assessments, including stress assessment;
• If assessments predict excessive stress, take steps to reduce or manage it. Document what you have done to reduce the risk and follow up with the employee (see: http://www.hse.gov.uk/pubns/indg281.pdf);
• If a complaint about stress (or a potential cause of stress) is made, act promptly to reduce stress. Follow up and monitor the effect of your action;
• Consider introducing a counselling service for staff;

Employers who fail to pay heed to these recommendations will suffer the consequences, firstly in terms of an employees protracted absence with associated health problems, and then, quite possibly, by a law suit. At the end of the day, the watchwords ‘prevention is better than cure’ immediately comes to mind!