Stress and the employer's duty of care

This 'duty of care' issue cropped up at a recent workshop. We were discussing employer liability for stress cases. Going back several years, the Hatton case established a precedent that many, me included, thought was crazy... that an employer could demonstrate it had met its duty of care just by offering a confidential counselling service or Employee Assistance Programme (EAP).

There was feeling at the time that the pendulum had swung too far in favour of the employee in such cases, but this employer 'get out of jail free' card was simply daft. Surely, many of us argued, the employer needs to show it has acted to minimize the risk to the employee, once clear they were vulnerable. How on earth could offering an EAP substitute for proactive action to prevent and reduce stress.

Thankfully, this changed with the Intel case in 2006 (a judgement upheld after an appeal by Intel in 2007). Common sense about managing stress risks at work prevailed and it became clear that employers did, after all, have to show they had taken steps to address concerns (e.g. about excessive workload) and not simply rely on the fact they had an EAP.

This makes perfect sense and fits much better with the employer's legal obligation to conduct risk assessments. Ultimately, it is better for employees and the employer if both understand that they need to communicate and act on any concerns about work-related stress. Prevention is hugely more cost-effective than cure.