Since the mid 1990s, there has been a significant increase in the incidence of claims for psychological injury against employers because of workplace stress. These cases cost enormous amounts of money, compromise employee wellbeing and job prospects, and destabilise organisational culture to such an extent that it may even reduce a business’ competitive efficiency.
It is important for employers to realise that these cases involve genuine mental illness brought about by stress. This is not just a case of an employee feeling a little blue – though depression can have emotional aspects – psychological injury is recognised in the Diagnostic and Statistical Manual of Mental disorders (DSM IV), and often incapacitating, requires medication and, most importantly, it can be life threatening.
If an employee works his or herself into a state of depression and anxiety, because they are dedicated and enthusiastic, or because of time pressures and workload, there may be no defence for an employer facing legal action. The law states that an employer has the power to stop someone suffering harm in the workplace and imposes statutory and common law obligations to provide a safe work place, and, when these matters reach the courts, a high standard and onus is placed upon employers to act reasonably to prevent circumstances that cause these injuries.
The same injuries can also be caused bullying and harassment at the workplace. Anti-discrimination laws impose on employers statutory obligations to protect employees from harassment, but there is still a lot of work needed to create workplace cultures that actively recognize the problem of stress and its consequences.
By way of example, over recent years, news media reports of bullying in the New South Wales Ambulance Service has shown what can happen in an organisation when employees work in highly stressful conditions. Paramedics respond to emergencies with only a basic description of what to expect. They may enter a life threatening environment for themselves and for the person they are sent to treat. Situations such as these would reasonably be described as having a high level of demand and a low level of control. Tragically for the service there have been nine suicides over the past 12 years.
Employers must protect their employees by formulating policies and procedures that minimise the potential for employees to be exposed to harm. Often this means taking a look at the workplace culture and working to foster a safer workplace. In doing so they will protect their businesses from risk and liability.
If an enthusiastic employee is going home late and regularly working weekend after weekend, that person’s employer should have in place systems and policies that identify the behaviour early so that counselling or management of the employee’s circumstances can be implemented. Healthy work cultures should involve policies that prevent employees from working through time intended for recreation with their families.
The Fair Work Act contains provisions for ‘reasonable additional hours’ that deal with work outside normal hours. Employers who allow employees to work for more than is reasonable are potentially creating a dangerous environment and may be leaving themselves open to liability for injuries that might occur.
Nowadays, a lot of employers offer confidential counselling for employees and sensible, practical and responsible strategies are often put in place. Employers such as these can show that they have policies and procedures, which are in place to help reduce or avoid liability altogether.
The issue of mental health is a new frontier in employee safety. Our society and culture create an environment that allows for stress and these injuries will continue to occur. Putting in place mechanisms that help to respond meaningfully is the best way to start by providing a dual benefit, to employers who can show that their workplaces are safe and compliant, and for employees seeking balance in their working lives.
Such an approach can lead to improvements in efficiency, a happier culture, less absenteeism, fewer HR issues because of staff turnover, and reduced insurance costs and time spent dealing with lawyers and courts.
About the author
Robin Young is a partner with Holman Webb lawyers. For further information visit: http://www.holmanwebb.com.au/