Stress the hidden burden for bosses in new health and safety laws

COMMENT

The recent focus of health and safety coverage has been on “big-ticket” items like the Pike River Royal Commission recommendations, the High Hazard Unit, the newly created health and safety Crown entity and the comprehensive review undertaken by the Independent Taskforce. 

Many white-collar employers could be forgiven for thinking that health and safety issues are things that happen to other people and that the current discussion of legislative change and increasing obligations will not affect them. 

However, obligations apply equally across all industries and in the current environment it is timely to give thought to workplace hazards that are often overlooked, such as stress. 

Most employees will suffer an element of stress during their working day and it can be helpful in providing that extra edge, which makes employees more productive and engaged. 

But when stress is such that it creates an unsafe workplace for either the employee or their colleagues, this gives rise to a health and safety issue, and to certain obligations on the part of the employer.

Under the current Health and Safety in Employment Act 1992, employers have an obligation to take all practicable steps to ensure the safety of employees at work.  In particular, they have an obligation to identify hazards within the workplace.

A person's behaviour
The term “hazard” specifically includes a situation where a person’s behaviour may be an actual or potential cause of harm to the person or another person. Where an employer identifies a “significant hazard” within the workplace, they must take steps to eliminate, minimise or isolate that hazard. 

Where an employee suffers harmful workplace stress, there are a number of avenues of legal recourse. The most common is a claim in the Employment Relations Authority for unjustified disadvantage, breach of contract or constructive dismissal. 

However, it is also open to employees to bring a private prosecution in the District Court for a breach of health and safety legislation or for Ministry of Business Innovation and Employment inspectors to bring a prosecution. 

There have been a number of cases where employers have been held liable for employee stress. 

For example, the New Zealand manager of an Australian retail chain, Bras n Things, was made to work 60 hours a week with inadequate support from her employer.  She was diagnosed as suffering from burnout and depression. 

The authority concluded that her role was too much for one person and that an excessive workload caused the employee’s health problems. Her claim for constructive dismissal was successful and the employee was awarded lost wages, plus $20,000 for hurt and humiliation. 

Three armed robberies
An employee engaged as a barman at a tavern was the subject of three armed robberies in a relatively short space of time. The employee developed post-traumatic stress disorder as a result. 

The Employment Court found that the employer either knew or ought to have known and foreseen that there was a real risk of armed robbery at the tavern that could endanger the health and safety of its employees.

One of the more extreme examples of workplace stress can be seen in the leading case of Gilbert v Attorney General. Mr Gilbert was a probation officer who took on a disproportionately large number of difficult cases, including the supervision of serious criminals. He became exhausted, despondent and unwell and suffered severe cardiac problems. 

His employer was ordered to pay to Mr Gilbert $297,966 in lost wages from the period of his dismissal to the date of the hearing. He was also awarded lost wages for the rest of his working life. 

Although the standard stress claim will be on a smaller scale to Mr Gilbert’s, these cases demonstrate the extent to which employee stress complaints can lead to real liability on the part of the employer; liability which is akin to the fine level in respect of physical injuries resulting from a breach of the Health and Safety in Employment Act. 

There are a number of practical steps that employers can take to isolate or minimise the existence of stress in the workplace. 

On a general level, it is helpful to engage an Employee Assistance Programme provider and encourage employees to utilise the service. The details of the provider should be prominently displayed (rather than hidden away in policies or employment agreements) so employees are well aware of the service.

In relation to individual employees, it is important to develop a culture where employees feel able to raise any workplace issues as soon as they arise and do not wait until a situation reaches crisis point. Regular catchups and informal assessments of workloads and particular triggers are important in this regard.  

Of equal importance is establishing channels of communication so employees know who to approach if they are feeling unable to cope and, ideally, have a number of options open to them if they do not feel comfortable discussing an issue with their direct manager. 

At an early stage
Employees should be encouraged to raise problems at an early stage, before they become insurmountable, and in time to receive assistance if they are having difficulties coping. It is also important to promote supportive relationships within the workplace. Team building, peer support and mentoring systems can be helpful in this regard.

When an employee does raise concerns regarding stress in the workplace, it is important to take reasonable steps to address them.  While the appropriate action will vary depending on the particular circumstances, options to consider can include a decrease in workload, a role transfer, hiring additional resource, allocating tasks differently, removing the employee from particular files or clients or changing their reporting line. 

Assisting the employee to develop better resilience through support, training, mentoring, coaching, counselling and even providing advice regarding issues such as eating well, exercise and sleeping could also be appropriate. If employee stress has resulted in a diagnosed psychiatric condition or in substance abuse, then more specialised help is also available.

Employee stress can be caused by a range of factors and when an employee is suffering from work-related stress, it is likely that there will also be circumstances in that employee’s personal life that are causing them stress. 

While employer liability links only to work-related stress, it is often difficult for an employee (and for a court, if the matter proceeds to that level) to differentiate between different causative factors. It is, therefore, important, both in terms of liability and more generally in terms of productivity and morale, to take “cries for help” seriously.

Because of the government’s current focus on health and safety, we are set to see a new agency established and a more onerous health and safety Act coming into force within the next year. This will lead to increased obligations for employers and increased scrutiny of employer practices.

So it is imperative that employers are aware not only of the physical health and safety risks within their workplace, but the mental risks also.

Jennifer Mills is a partner and Christie Hall is a senior associate at Minter Ellison Rudd Watts