Not stressed for success

The Health & Safety Executive's recently published pilot code on managing stress in the workplace will surely ring alarm bells with some employers, their insurers and brokers.

Presenting its six stress tests, the HSE said: "The introduction of these new measures should make it easier for employees to bring actions against employers."

While moving stress up the HSE's agenda is a welcome move, the new code is misconceived. The HSE has ignored one fundamental fact when looking at the cause of stress - that life itself can be stressful. It has assumed that all stress at work is caused by excessive demands placed upon the employee by the employer, but successive court cases have established this is not the case.

From Walker v Northumberland in 1995 to Pratley v Surrey County Council this year, with Garrett v London Borough of Camden and, importantly, Hatton v Sutherland County Council in between, employers already have guidelines as to what they can and should be expected to do.

Stress in itself is not sufficient to merit a claim, there must also be a recognisable psychiatric illness. Employers clearly have a duty to provide a safe place of work and to protect employees against injurious levels of stress. However, they do not have a duty to make unnecessary, or intrusive, enquiries into an employee's mental well-being.

If employees are showing signs of stress, employers must take steps to alleviate that. The crucial point is that employers must have had some warning, or indication, that employees are suffering from such an illness.

As Hatton established, employers are entitled to assume employees are up to the normal pressures of the job. Employers should, therefore, be wary of responding to the pilot code by embarking on wide-ranging and expensive stress audits, as this could fix them with knowledge that they neither wanted nor need to obtain. Such stress audits will, of course, be disclosable documents in any subsequent action.

If such audits are to be effectively carried out, they need to explore not only potential stresses at work but also those outside the workplace.

If these audits were to be undertaken, they would doubtless be met with considerable outrage on the part of employees and trade unions, which would argue that their private life is exactly that - private. The HSE's six tests also ignore the fact that reaction to stress is highly individualised: different people are affected in different ways.

As Lord Justice Brown summed up in one of the early Court of Appeal stress cases (Garrett v Camden): "Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some of their problems to the strains and stresses of their work situation, be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there is a real risk of a breakdown, which the claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability."

The feedback on the pilot code will be interesting to see.