Because an employer's duty of care goes beyond physical health
It’s a well-known fact that employers have a legal responsibility to provide a safe workplace for their staff. When we think about workplace health and safety, things like trip hazards or fire drills come to mind. But providing a psychologically safe work environment in accordance with the Health and Safety at Work Act 2015 is equally as important.
Given that many employees are now working from home while in lockdown and dealing with the added stress that brings, looking after employees’ mental health is crucial. If businesses fail to prevent or deal with complaints of emotional stress, they could find themselves in legal trouble.
In the last five years, there has been a rise in the amount and consistency of compensation for employees claiming emotional harm, mostly in relation to unfair dismissal cases. Now, it’s not unusual for employees to received $20-$30,000 dollars in compensation, on top of lost wages. So it’s imperative for employers to take the risk of emotional distress seriously – or they could be in for a shock.
Can an employee sue for emotional distress?
Yes, an employee can make a personal grievance claim with the Employment Relations Authority on the basis they have been unjustifiably disadvantaged in their employment, by way of an unsafe workplace.
They could claim unfair dismissal if they were fired as a result, or seek compensation for non-monetary loss where they have suffered humiliation, loss of dignity or injury to feelings. According to the Employment Court, injury to feelings includes sadness, depression, anger, anxiety, stress or guilt.
Employees have 90 days to file a personal grievance claim from the date of the incident, but this step should follow earlier measures like trying to resolve the problem at work through conversations with their manager or HR, as well as mediation.
Employees can bring a personal grievance claim against a current or former employer.
Read more: How to manage a workaholic employee
What qualifies as emotional distress?
Unlike physical injury, emotional distress is a subjective term and the way symptoms present themselves will vary from person to person. Worksafe New Zealand says in general, work-related stress is associated with symptoms such as decreased morale and engagement, low productivity, and antisocial behaviours, as well as mental health problems like anxiety, depression or PTSD, and physical problems, such as chronic headaches or heart disease.
According to Employment New Zealand, managers have a responsibility to look out for signs of workplace stress within their teams. Things like an employee keeping their camera turned off, avoiding eye contact, seeming unusually withdrawn or increased absenteeism such as sick leave could all be signs of workplace stress.
Managers should also keep an eye on their employees’ workload and whether they’re communicating out of hours. Excessive workload and bullying or harassment are the most common causes of workplace stress. But in a healthy working environment, employees are encouraged to raise concerns and most importantly, employers act to help alleviate the source of stress.
Read more: Revealed: Top reasons Kiwi employees are asking for help
How do you prove emotional distress?
To claim for emotional distress, employees need to show a cause and effect relationship between the source of their stress – such as an excessive workload or being bullied – and the onset of symptoms.
Many illnesses linked to emotional distress can be diagnosed by a doctor, such as insomnia, anxiety, depression or post-traumatic stress disorder. There may also be physical symptoms such as weight loss and panic attacks. While other symptoms, like becoming antisocial or withdrawn, can be demonstrated through statements by people the employee interacts with in both their working and personal life.
What can employers do to reduce the chance of a claim?
There are a number of strategies businesses and HR leaders can implement to reduce the risk of psychological harm in the workplace. Of course, stress will always exist, and how individuals react to stress will vary greatly from person to person.
But what’s important, is that employers are both preventing and reacting to complaints of stress. Managers should be trained in knowing how to spot stress indicators and how to begin the conversation with their team members. They should be checking in regularly, asking how their employees are doing – both in relation to their jobs and their day-to-day life.
Fostering a speak-up culture is also critically important to reducing the chances of psychological injury in the workplace. Encourage staff to ask for help if their workload becomes excessive or if they’re being bullied. Create an environment where employees feel safe in the knowledge that their complaint will be properly addressed and dealt with fairly.
Just like physical injuries, prevention is always better than cure when it comes to mental health. But once an employee becomes burnt out or begins to feel the symptoms of prolonged stress, there may be a number of things their employer can do. Options may include taking sick leave or unpaid leave to rest and recover, reorganising resources to lessen the employee’s workload or hiring more staff.
