Legal spotlight - December 20

THE UK Health and Safety Executive (HSE) annual statistical report published recently shows that an estimated 828,000 workers in Great Britain were affected by work-related stress, depression or anxiety in 2019/20, representing 2,440 people per 100,000 workers and an estimated 17.9 million working days lost. This represented 51 per cent of all work-related ill health and 55% of all days lost due to work-related ill health last year. 

Statistics for fatalities, first released in June, showed there were 111 fatal injuries at work in 2019/20. The latest statistics confirm that a total of 1.6m people suffered from a work-related illness, and a total of 38.8m working days were lost to illness or injury with an estimated economic cost of £16.2 billion. 

While the number of deaths fell from 149 in 2018/19, the incidence of workplace ill health increased. For work-related stress, depression or anxiety, defined as a harmful reaction people have to undue pressures and demands placed on them at work, the increase has been particularly stark; the total number of cases in 2019/20 was 828,000, a prevalence rate of 2,440 per 100,000 workers. This was statistically significantly higher than the previous period, which recorded 602,000 such cases.

Professional occupations and associate professional and technical occupational categories (such as teachers, doctors, nurses, police, care and welfare occupations) had statistically significantly higher rates of work-related stress, depression or anxiety than the rate for all occupations, with females faring worse overall in all age categories.

The HSE put the improvement of workplace ill health at the heart of its five-year ‘Helping Great Britain Work Well’ strategy in 2016, after identifying continuing high levels of it as an area of concern. This was also emphasised by its 2018 ‘Go Home Healthy’ campaign, in relevant sector and health priority plans and, most recently, its business plan for 2019/20. The recent statistics show that much remains to be done, however, to achieve the HSE’s stated aim of improving workplace ill health, in particular work-related stress, depression or anxiety.

Traditionally, many employers have focused on managing physical health and safety, but legal duties concerning health and safety are not limited in that way. The 1974 Health and Safety at Work Act clearly require employers to ensure the "welfare" of their employees, and others, so far as reasonably practicable, when at work. This includes the risk of work-related stress. Management standards and guidelines have been produced to assist with this process. Taking better account of mental health and assessing which pressures are necessary or positive and which are not needs culture change, however, and that takes time. That change is essential however, if an organisation is to thrive

Health and safety regulators have made it abundantly clear that the health and welfare of workers must be appropriately managed during the current pandemic crisis, and there will certainly be a period of piqued interest and enforcement appetite by regulators with respect to health and welfare issues in light of the recent statistics and as the country emerges from the crises. In the UK, employers who breach their health and safety obligations can expect to be investigated and, in appropriate cases, prosecuted, with fines running into hundreds of thousands or even millions of pounds and immediate custodial sentences for individuals found to be at fault becoming increasingly commonplace.

The HSE frequently uses targeted inspections in order to drive up standards, and this is no less so in cases involving work-related stress. It issued new guidance in September stating that it will investigate if it receives "evidence that a number of staff are experiencing work-related stress or stress-related ill-health (i.e. that it is not an individual case)". This is a significant marker that the HSE takes its duties in relation to workplace mental health seriously, and expects employers to do the same.

While the HSE said "COVID-19 does not appear to be the main driver of changes seen in the latest year's data …it is possible that COVID-19 may be a contributory factor".

Employers need to consider the impact of the coronavirus pandemic on their employees’ mental health and prioritise wellbeing, particularly as the UK nations have faced a second wave of the virus and the consequent restrictions on movement imposed by governments in response. Technological advances have meant that many, but not all, workers can continue working from home. Whilst that may mean that physical injuries are less likely, the potential for mental injury from homeworking must not be forgotten, and those having to travel for work or interacting with members of the public face their own range of stressors. The HSE’s figures reveal that, Covid-19 apart, workplace mental health remains a concern. The impact of Covid is likely to exacerbate that if steps are not taken to address the risk now.

It is not always easy to attribute ill health to workplace conditions, which may contribute to the difficulties with enforcement in this area. The HSE has committed to improve this, however, and these figures are likely to increase that resolve. Increased enforcement action in this area should therefore be expected.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com