Taking the lead

Three years have passed since the Health and Safety Executive (HSE) declared that it was “back in the game” when it came to work related stress (WRS).

It has been almost as long since the HSE published its health priority plan which included WRS as one of its three focus areas, alongside musculoskeletal disorders and occupational lung disease.

On paper, the law is equipped to deal with psychosocial risks to mental health in the workplace. But are we any closer to seeing enforcement action as a deterrent stick with which to beat non-compliant businesses? The answer is a resounding “No”.

What is WRS?

The HSE defines WRS as “the adverse reaction people have to excessive pressure or other types of demand placed on them”. The HSE’s priority plan acknowledges that “when it is prolonged, WRS can lead to mental health conditions such as anxiety and depression, as well as physical conditions”.

In short, an organisation’s failure to prevent or manage the risk of WRS can inflict lasting physical and mental harm on individuals. There are six factors generally accepted as playing a part in WRS:

• Demands – Workload, work patterns and working environment.
• Control – How much say an employee has over their working arrangements.
• Support – Encouragement, sponsorship and resources provided.
• Relationships – Promoting positive working to avoid conflict and taking steps to deal with unacceptable behaviour.
• Role – Employees understanding their job and the organisation ensuring they do not have conflicting roles; and
• Change – How this is managed and communicated within the organisation.

So how bad is the problem? Let’s look at the vital statistics. WRS accounts for an incredible 54 per cent of lost working days, according to the Labour Force Survey. This equates to 12.8m working days.

The HSE’s annual statistics revealed 602,000 sufferers in 2018 to 2019. Professional occupations have a far worse rate of WRS than the average combined industry rate, with some 2,150 cases per 100,000 (compared to 1,380 across all sectors).

Larger workplaces also appear to contribute to the problem, with those of more than 250 people showing a statistically higher prevalence of cases.

Overall, there has been an increase in reported cases in recent years. However, it is unclear whether this means an increase in actual cases or whether societally our conversation has changed sufficiently such that some of the taboo around ‘admitting’ to WRS has abated.

Tipping point

Many of us are subject to pressure in the workplace (which is not necessarily a bad thing). Pressure motivates, produces results and (particularly as a lawyer) is generally accepted to be a part of working life.

However, the demands made on employees can easily tip from pressure to WRS. The law responds via the obligations of the Health and Safety at Work etc Act 1974 which applies equally to the risks to mental health as to physical matters.

All employers have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees.

This duty is augmented by the obligation to conduct a suitable and sufficient risk assessment in relation to the work tasks the employer is asking people to do. These are blanket requirements. It is health and safety law and imposes a requirement to identify and action control measures on psychosocial risks, as well as any physical risks workers may face.

So if the law is there, why not enforce it? One reason for the ongoing lack of enforcement from the HSE is the fact that WRS (or indeed, any type of work-related mental health problem) is not reportable under the Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013.

For as long as this remains the case, HSE investigations will only ever be launched by chance – because there is a whistleblower or a brave complainant. Possibly, an investigation could come about because a prevalence of mental health issues is uncovered during a proactive inspection.

This tends to suggest those in identified sectors like manufacturing and construction would be unfairly (in this context) the focus so I suspect that the likelihood of HSE investigations in this space are slim.

Even if the HSE does know of a problem, what comes next? The HSE’s policy is that an investigation will only begin where there are a number of individuals affected and there is scope for effective intervention at an organisational level.

Think for a moment about that. Can you imagine a policy in which the regulator would only intervene when a number of workers had been injured by an unguarded machine? Perhaps that’s a flippant example, but you see the point.

Of course, WRS is eminently more complex than your average physical risk. There are so many factors extraneous to work that might feed in to someone’s mental wellbeing, such as relationships, finances and families.

While the HSE need not necessarily prove a causal link, consider how hard it would be for an inspector to prove risk to the criminal standard (beyond reasonable doubt).

Under the banner of its #HelpGBworkwell campaign, the HSE issued a health priority plan for WRS. But this does not mention enforcement at all and its ‘inspection pack’ refers only to improvement notices as a sanction, with no mention of prosecutions.

Clearly the HSE, through no fault of its own, is also woefully under resourced. With every passing cut comes another service or aspect of the regulator/duty holder relationship that cannot be fulfilled as before. If we want the HSE to play a significant deterrent role in the fight against WRS then significant fiscal investment is needed.

Moving forwards

So absent the fear of enforcement, what can we do and what should we do? That the law cannot be reasonably or practically enforced does not alter the legal obligations upon employers. WRS and its damaging impact is something so many of us can relate to.

The Junior Lawyers Division (JLD) of the Law Society carried out a survey of its members in 2017, with several questions focusing on mental health. The results were no surprise: more than 90 per cent of respondents said they had experienced WRS within their role and over half thought their employer could do more to help.

The JLD went on to devise guidance to employers to safeguard and promote resilience and wellbeing in the workplace, identifying three key areas for change:

• Support – In the form of employee engagement groups, mental health first aiders, human resources professionals, counselling services, HSE guidance and health promotion initiatives.
• Culture – Looking to organisational commitment, a joined-up approach, efficiency in processes, rewards, annual leave prioritisation, encouraging staff empowerment and monitoring wellbeing.
• Education and training – The creation of clear wellbeing strategies which are signed off at a senior level and implemented through a range of measures, including training for line managers and performance reviews across the workforce.

What we need is for law firms and organisations across all industries to take the lead. Look at This Is Me, Mates In Mind or Business In The Community – all sector specific projects that are industry led.

We must place reliance upon, and trust in, the well-resourced to do the work, put the time in, create the initiatives and ultimately affect the culture change needed to achieve compliance.

In recent years, we have made huge strides in breaking down the stigma and in encouraging the conversation. Do we really need the HSE standing over us brandishing improvement notices to do the right thing? I hope not.

Rhian Greaves is an associate partner in the regulatory team at Pannone Corporate pannonecorporate.com