Legal spotlight - Feb 2020

NEARLY FOUR years ago now, having identified continuing high levels of work place ill health as an area of concern for stakeholders across the health and safety system, the Health and Safety Executive (HSE) made its improvement one of the cornerstones of the its Helping Great Britain Work Well strategy launched in 2016 and confirmed and enhanced in their "Go Home Healthy" initiative and in relevant sector and health priority plans. This commitment has been repeated, most recently in the HSE Business Plan 2019/20, where a continued focus on tackling ill health as part of the Health and Work programme is noted as a key priority for the year. Change takes time, of course, but improvement has been slow and the figures released late last year by the HSE disclose signs of an increasing rate of work related stress, depression or anxiety, rather than any decrease.

While the HSE acknowledges that "the health of the working population is not solely related to workplace conditions", work related stress is one of the biggest causes of health problems, with over 12 million working days lost last year as a result. Defined as is ‘the adverse reaction a person has to excessive pressure or other types of demand placed upon them’, employers must assess the risk of work related stress as part of their ongoing obligation to assess the risks arising from hazards at work. Management standards and guidelines have been produced to assist with this process and in 2017 the Stevenson/Farmer ‘Thriving at Work’ report set out a framework of actions – called ‘Core Standards’ – that the author's recommend employers of all sizes can and should put in place. These core standards were designed to help employers improve the mental health of their workplace and enable individuals with mental health conditions to thrive.

In the UK, employers who breach their health and safety obligations can expect to be investigated and in appropriate cases, prosecuted. On conviction, fines running into hundreds of thousands of pounds or even millions of pounds are becoming commonplace, together with an increasing incidence of immediate custodial sentence for individuals found to be at fault.

Targeted inspections are used by the HSE to drive up standards, and this is no less so in the case of work related stress. Last September, HSE issued new guidance setting out for the first time its criteria for investigating cases of work-related stress, 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 has been seen a significant marker that the HSE takes its duties in relation to work place mental health seriously and expects employers to do the same. Organisations found to be at fault can expect enforcement action; given its priority status within HSE (and beyond), it may well only be a matter of time before we see a prosecution before the courts here. The public and political will is certainly there for this.

Exactly what this means in the UK remains to be seen, but in a recent landmark ruling in France, phone and internet provider Orange (formerly France Telecom) was found guilty of institutionalised “collective moral harassment”, following a number of employee suicides. The company received a multi million pound fine and its former chief executive and six other managers were given a custodial sentences and fines. Whilst the facts of that case turned on technicalities of French employment law, in essence, the culture in the company was one of bullying and harassment; exactly this type of culture which will not be tolerated, whatever the circumstances.

Hailed as a "verdict for the future" employers should take note. The message it sends is not just for employers in France; employers in the UK too who play fast and loose with their employees mental health can expect to be held to account.

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