What is the law?
Under the Health and Safety in Employment Act 1992, employers are responsible for ensuring that employees have a safe work environment. “Safe” is further defined as “not exposed to any hazards”. “Hazard” is further defined as “an actual or potential cause or source of harm”, and “harm” is said to mean “illness, injury or both”. This means that an employer must ensure that the employee has a workplace that does not expose them to any actual or potential source of illness or injury.
This has been held by the Courts to include taking all practicable steps to ensure that the employee is not suffering psychological harm. This principle was developed when an employee brought a personal grievance claim against his employers on the grounds that he was suffering from a psychological condition caused by workplace stress.
This decision has a vast flow on effect for employers. One of the biggest problems that an employer could face is being held liable for stress suffered by an employee, as all men are not created equal, and people react to stressful situations in different ways. An employee who faces stressful situations every day may have inherent and effective methods of dealing with the stress, and some employees may give no indication that they are feeling anxious and pressured. Both of these people may have a similar outward appearance of dealing with the pressure, but one may have a problem. It is a large burden on the employer to know when an employee is under stress.
This difficult position is exacerbated by the amendments to the Act. Included in the amendments are:
1. The definition of “hazard” will be widened to specifically include psychological harm.
2. An inspector can bring criminal proceedings against the employer within six months from the time that the inspector first became aware of the harm. At present, the proceedings must be brought within six months of the offence occurring, which means that if the inspector was not aware of the offence within six months of it happening, no proceeding would be able to be brought against the employer.
3. Individuals or unions will be able to initiate proceedings if Occupational Safety and Health decides not to, although the employee can currently bring a claim against the employer in the form of a personal grievance.
4. Fines will rise from $100,000 to $500,000, and imprisonment increased up to a possible two years.
As yet there have been no prosecutions by OSH for harm in the workplace caused by stress.
What is an unsafe working environment?
Employers have been directed to look at the employee’s work. Looking at the job itself:
- Is the workload normal for that type of job?
- Is the work excessively physically demanding?
- Does it have a high emotional level?
- Is it intellectually demanding?
- Is the work situation comparable with the same job in other places?
- Are other employees suffering from stress?
- Are other employees in the same job taking a high number of sick days?
Part 2 click here.
On a more personal level:
- Does the employee have a history of stress?
- Have they been calling in sick often?
- Do they work excessive hours?
- Do they appear to deal well with stressful situations such as frequent deadlines or making difficult decisions?
What can Employers do to minimise liability?
The problem with prosecutions under the Health and Safety in Employment Act is the “human factor”. Everybody feels stress to a different degree, and everybody has different methods of dealing with stress. These methods range in effectiveness from extremely effective to non-existent. In addition to this, some people are more susceptible to the effects of stress, and some are better at hiding when they are feeling the effects of stress. Most employees do not want their employer to think they can’t handle the job.
Every job has a degree of stress, and it is impossible for an employer to create a stress-free working environment. The Courts recognise this, and the test that is imposed on employers is one of practicality. An employer must take all practicable steps to ensure that the employees are not exposed to situations that have the potential to cause harm. The emphasis is more on preventing the stress levels getting too high rather than taking action once the levels are having an adverse effect on the employee’s work. Employers are usually allowed to rely on the assumption that the employee can handle the stress of the job if no aspect of the job is unusual, and they have not been made aware of an employee’s predisposition or vulnerability to stress.
Some methods of minimising risk are:
- Ensuring that the employee has a reasonable workload
- Eliminating repetitive or dangerous work
- Educating employees on time management skills to reduce deadline stress
- Providing support systems for employees
- Putting stress management programmes in place
- Monitoring how employees are coping with workloads
- Maintaining terms of the employment agreement
- Putting in place an occupational safety and health programme
There are many factors which can contribute to the pressure being experienced by an employee, and the Courts recognise this. Family and home pressures are also contributors, and they can intensify the stress being experienced at work.
If there are other contributing sources of stress, the employer may only be liable for a portion of it. If they have systems in place to minimise the stress on employees, this will also reduce their liability.
The workplace environment will never be stress-free, and some employees work better with a little bit of pressure to give them a sense of achievement. Stress is a subjective experience, and an employer is only expected to be reasonable and protect their employees as much as possible.
Click here for more information on the amendments to the Act.
NB The changes to the Act came into force on May 5 2003.
