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The Health and Safety at Work etc. Act 1974 (HSWA) imposes the pro-active duties, under Section 2 and 3, for all Employers to ensure, so far as is reasonably practicable, that staff, workers, visitors, contractors, members of the public etc. are not exposed to risks of their health and safety at work, or whilst undertaking work-related activities.
What steps are considered to be ‘reasonably practicable’ will involve the Employer identify the risk, then balance that level of risk against the measures needed to control it in terms of money, time or trouble (including the resources available to an organisation of its size).
The Management of Health and Safety at Work Regulations 1999 requires Employers to make a suitable and sufficient assessment of what foreseeable risks employees are likely to be exposed to whilst at work. In relation to work-related stress – it is expected organisations carry out a workplace stress risk assessment. ‘The Management Standards’ provide guidance in terms of the six key areas which should be considered. If these are not managed properly, they can lead to poor health, lower productivity, increased accident and sickness absence rates.
These six areas are:-
What are the Management Standards? - Stress - HSE
Additionally, there is now ISO 45003 – a first international standard that provides guidelines for managing psychosocial risks in the workplace.
There may still be some contention in established case law about when ‘stress’ can be considered an injury for the purposes of HSWA, or when civil liability will attract for causing psychiatric harm or illness at work.
Generally, the question of ‘foreseeability’ and when may ‘stress at work’ cause long-term harm to an employee, needs to be considered in each specific circumstances pertaining to the individual.
However, Employers can be held liable where there is reasonable foreseeability of such psychiatric injury, and the likelihood of this increases when the employer knows of a particular employee’s vulnerability. ‘Foreseeability’ still depends upon what the employer knows (or ought reasonably to know) about the individual employee. The nature of mental disorders makes them harder to foresee than physical injuries, but foreseeing in a known individual is easier than in the population at large.
Due to this difficulty in foreseeing or identifying a direct link between work-related stress and the harm being caused, there has been little criminal enforcement taken to date by the Health and Safety Executive (HSE). For example – the primary health and safety regulator in Great Britain.
Legal and health and safety practitioners have predicted there being a considerable ‘sea change’ in this approach for some time. Mental health, wellbeing and managing work-place stress have been identified as a key priority area for the regulator.
In December 2024, it became public knowledge that the HSE were actively investigating a leading higher education provider about their management of work-related stress. The investigation came about due to a complaint from the Union, highlighting that since 2020, stress had been the leading cause of illness-related absence at the establishment, and accounted for over 17,000 working days lost.
The above provider responded to a HSE request about the steps it had taken. However, the HSE confirmed to them in its response, it does not consider this to be sufficient assurance that work-related stress is being suitably managed. The establishment had not conducted a single workplace stress risk assessment in the past three years. Instead, it had only relied on staff surveys and tracking reasons for referrals to EAP programmes, as a substitute for comprehensive risk assessments.
Therefore, HSE expressed concern that the measures being taken were predominantly ‘reactive’, addressing stress only after it had become a significant issue, rather than to pro-actively mitigate it and support staff. Consequently, HSE plan to reinspect and the investigation remains on-going. In the above case, the HSE have specifically cited they wish to understand the organisational structure of the establishment, its management arrangements and the processes in place for managing work-related stress.
An employee will be disabled for the purposes of the Equality Act 2010 if they have a physical or mental condition or impairment which has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities. The definition of “long-term” is that the effect has lasted a year or is likely to last a year.
It has generally been established that stress caused by a reaction to difficulties at work will not meet the legal test to be classified as a disability. However, if an employee’s stress is connected to a wider neurodivergent condition, the position may be different.
If an employee is disabled for the purposes of the Equality Act, employers will have a legal duty not to discriminate and to make appropriate reasonable adjustments. Examples of reasonable adjustments could include flexibility with working schedules, changes to a person’s role or responsibilities, or changes to the working environment. However, every situation would need to be considered on its own facts, as what is reasonable will depend on the nature of the employer’s business in the context of the individual’s role.
If you have an employee who is suffering with work-related stress, it is strongly recommended that you seek legal advice to understand your position and the most appropriate next steps. If you would like some advice on your employment law obligations, then please contact Alice Kinder.
Whilst often just seen as only ‘a nice to have’ these statistics show what impact this issue is having:
Therefore, by implementing the management standards involves a step-by-step risk assessment approach, encouraging active discussion and collaboration with employees to identify practical improvements.
This proactive method aims to prevent stress by addressing its ‘root causes’ rather than merely reacting to its symptoms.
The HSE’s active and public investigation here only serves as a timely reminder now to all organisations about the critical importance of proactive stress management. It may be timely for organisations to consider its own approach, review what it outlines within its overarching policies (considering both health and safety, and employment, law considerations), review itself more against other peers in their industry, and ensure that staff are appropriately trained and aware of their requirements, especially at management level.
If you have any questions or queries about your organisations approach in relation to health and safety – please do not hesitate to reach out and connect with our Emma Evans, Regulatory Partner.
To discuss any of the above further, please contact Emma: emmaevans@bexleybeaumont.com | 07738 007652
Or, please contact Alice: alicekinder@bexleybeaumont.com | 07526 372580
