The problem
One of your female staff complains that she is being bullied and sexually harassed by one of the male staff. You do not know how to handle the situation, so you ignore it and hope that the problem resolves itself. Could your decision lead to further problems?
The Law
The Health & Safety Executive (HSE), which is responsible for the regulation of almost all risks to health and safety arising from work activity in Britain, has recently issued its first enforcement notice against an employer for failure to protect employees from stress at work.
Employers have a duty under Section 2 (1) of the Health and Safety at Work Act 1974 "to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees". Under this act the employer has a duty to provide information, instruction, training and supervision, and the duty to maintain a working environment that is safe and adequate as regards facilities and arrangements for employees' welfare.
Regulation 3 of the Management of Health and Safety at Work Regulations 1999 requires employers to carry out a risk assessment, including an analysis of the risks to employees' psychiatric health caused by stress at work. Where a risk assessment highlights potential health and safety issues, the employer must take reasonable steps to limit the risks.
Section 100 of the Employment Rights Act 1996 states that a dismissal for a prohibited health and safety reason is automatically unfair. In this situation the normal one-year qualifying period for unfair dismissal does not apply.
The contract of employment includes the implied term of mutual trust and confidence. Where this is breached, an employee may be able to resign and complain that they have been unfairly constructively dismissed.
The HSE identifies seven broad categories of risk:
- Culture - including the attitude of the employer to workplace stress.
- Demands - including an employee's capability to do what is expected of them.
- Control - the extent of control an employee has over their work.
- Relationships - including issues such as bullying and harassment.
- Change - whether the employer communicates and consults with its staff.
- Role - do the employees have a clear understanding of what is expected of them?
- Support - does the employer provide adequate support and training?
Beware!
The potential liability for unfair dismissal claims is significant (currently capped at £53,500).
The HSE proposes to carry out work-related stress audits as part of its routine inspections, and can issue an Improvement Notice requiring an employer to rectify a breach of health and safety law within a specified time. If an employer fails to comply with such a notice, or if the breach poses an immediate danger, the HSE can issue a Prohibition Notice, which stops the operation that's giving rise to the hazard. Non-compliance is a criminal offence and can lead to a fine of up to £20,000 upon conviction in a magistrates' court, or an unlimited fine in the Crown Court.
Check list
- Carry out a risk assessment, bearing in mind the seven risk factors. Practical steps should include informal talks with staff; discussing pressure at work during performance appraisals; return-to-work interviews following sickness absence to see if the absence was work-related; and exit interviews to establish whether stress was a factor in the employee's decision to leave.
- Introduce a stress policy which sets out the definition, causes and effects of stress at work and the responsibilities of the employer, managers and employees with regard to tackling the problem. Training should be provided.
- Introduce a policy on bullying and harassment, and provide training.
- Where an employee is found to be suffering from stress at work, take reasonable steps to prevent the problem escalating.
Contacts
Kirstie Johnson at Laytons, 01483 407000, kirstie.johnson@laytons.com
The British Hospitality Association, 0845 880 7744, www.bha-online.org.uk