Stressful times: Legislation will see increases in discrimination claims

by HCA12 Aug 2009

Stress-related claims by employees have increased over the last decade and may become a greater potential liability for employers as a result of new disability legislation, which confirms that the burden of proof is on employers to show they have taken all necessary and reasonable steps to adjust their workplaces to enable employees suffering from any form of disability to safely work.

Lesley Maclou, partner at Harmers Workplace Lawyers, said the Disability Discrimination Act, which was first introduced into Federal parliament last year and passed last month, holds implications for employers of employees dealing with stress related illnesses and disorders.

"Over the past few years there has been a significant increase in the number of stress-related claims in the workplace in Australia and abroad. Typically, the issue of stress baffles those within an organisation who have responsibility for managing absences due to illness and it is also difficult to identify because the effects of stress can be exemplified in both physical or mental conditions," Maclou said.

"In addition, while there is no specific 'stress' legislation, an employer has obligations under health and safety legislation, at common law and under the disability discrimination legislation. In particular, the new disability legislation, which imposes greater obligations on employers when dealing with employees with a disability, could lead to an increased focus on how employers manage stress-related illnesses and the return to work of employees suffering from such illnesses."

Maclou noted that The Disability Discrimination Act has made it clear where the burden of proof lies, and that is with the employer. Employers are now required to prove that they have made all reasonable adjustments to make amends and arrangements for a stress affected employee to return to work.

"If the employer is unable to prove that reasonable adjustments have been made that could have enabled an employee with a stress-related illness to safely return to work - or indeed to prevent such an employee being treated less favourably than another employee without such an illness - the employer could face a claim of unlawful disability discrimination," she said.

According to government statistics in Australia, the total cost of workers compensation claims for stress-related conditions is estimated at over $200m every year. Maclou noted that in order to implement practical measures to assist an employee with a stress related illness to successfully return to the workplace as well as minimise an employer's legal risks, it is important for the employer to identify the cause of the original stress or the reason for its exacerbation at work. 

An employer must then consider if the contributors to the employee's stress are within their control. An employer should also have various strategies and processes in place to accommodate and manage these situations - many employers offer their employees access to confidential help via independent third parties, for example in the form of counselling. Given all the potential legal risks and to ensure the safety of all of their employees, an employer must consider undertaking risk assessments, ongoing monitoring and be committed to genuinely addressing reasonable adjustments in these circumstances.

"For example, if a fellow worker is causing an employee significant stress and harm, the employer should consider re-arranging the team in which the employee works so there is limited or no interaction with that colleague as well as ensuring the employee that is allegedly causing the issues also has access to training and assistance. Other examples include reducing an employee's hours of work and reducing their workload, counselling and buddying as well as engaging a workplace rehabilitation coordinator," she said.

Maclou said that employers faced with claims of discrimination from employees who suffer from a stress-related illness will only be able to defend their inaction if they can prove that the required adjustments to their workplaces would place a significant burden or an 'unjustifiable hardship' on that business and its ability to operate.

"The message for employers is clear. Any time an employee takes stress leave, employers should be prepared to take all necessary steps in order to help that employee rehabilitate themselves into the workplace. A failure to do so will likely see the employer exposed not only to a claim under the new Discrimination Act, but also potentially in breach of its common law and occupational health and safety obligations. The cost to the business can be significant," she said.



  • by P V Isaac 14/08/2009 11:19:24 AM

    The legislation is an excellent move to stop work place bullying.Hopefully this should egg employers to budget for Stess Relief Training programmes?

    Does anyone know what Stress Management programmes are out there in the market?

  • by Bernie Althofer 17/08/2009 1:13:51 PM

    Given the rising costs associated with physical and psychological trauma, and the lack of a formalised process to capture direct and indirect costs, organisations may have to consider changes to health and safety legislation as well as the Discrimination Act. It might be worth it for organisations to consider the implementation processes.

  • by Meiron Lees, InnerCents 16/09/2009 2:47:47 PM

    Employers are starting to recognise the need to support their employees in stress management but it's still not anywhere near the level that it should be.

    I run a Managing Workplace Stress workshop and thus far it has been quite well received which is a good sign.

    Let's hope that managing stress will become a priority!!

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