UK: I’m A Survivor…

Last Updated: 11 February 2009
Article by Andrew McConnell

In an attempt to recession-proof their business, most employers will have considered cost cutting measures. In the worst case scenario this means redundancies.

Where redundancies are involved it is natural for employers to focus on providing support to those losing their jobs. Employers should be aware that if they fail to manage the aftermath of a redundancy process or restructuring properly they may leave themselves exposed to stress-related claims. This is because the "survivors" who keep their jobs after a redundancy can experience greater pressures owing to changed work patterns and increased workload – the phenomenon of "survivor syndrome". The same is true where employers have taken steps to change or reduce working patterns. Morale may dip, too, if employees have lost good colleagues or are concerned that it is only a matter of time before they may face redundancy. To ensure a business continues to function effectively whilst the workforce is reduced, redundancies can often take place in 'waves.' So a wave one survivor may not be so lucky when it comes to the second wave. Anxiety in these circumstances is understandable.

Change Is Not Always Good...

According to the Health and Safety Executive (HSE), 13.4 million working days are lost to work-related stress each year. It is widely accepted that work-related stress can be triggered by change: the HSE lists it as a key factor. Changes to the workforce, whether through redundancy or changes to working arrangements are obvious examples. A failure to manage employees' workloads or work patterns following such a change could cause them to suffer high levels of stress.

What Claims Could Redundancy "Survivors" Make?

Two kinds of claim are a possibility - stress-related personal injury claims and disability discrimination claims.

Personal Injury

Employers have a common law duty to take reasonable care for employees' health and safety in the workplace. They have a statutory duty to assess the risk to their employees of stress-related ill-health arising from work and to take measures to control that risk. Employers should consider the HSE's "management standards" – these are statements of good practice designed to assist employers in tackling stress.

For employees, the legal tests in a stress-related personal injury claim present a high hurdle. To be successful, employees have to prove:

  • the employer had breached their duty of care towards them;
  • they had suffered personal injury as a result of this breach;
  • their injury was a 'reasonably foreseeable' outcome of the employer's treatment.

The recent case of Dickins v O2 (2009 IRLR 58) warns employers of the danger of not reacting quickly enough once they become aware that an employee is suffering from stress. In this case the Court of Appeal upheld a county court judge's decision that the psychiatric ill health suffered by an employee had been reasonable foreseeable and caused by her employer. Once the employee had explained her difficulties at work to her manager and the effects on her health, the employee was no longer solely responsible for determining whether she was capable of continuing to work; some responsibility passed to the employer.

At that time reference to the employer's counselling services was insufficient - management intervention was needed and the employee should have been sent home and referred to the employer's occupational health department. Once the issues had been aired the danger of damage to the employee's health by inaction was 'reasonably foreseeable'.

Redundancies or restructuring will often result in changes to employees' roles or changes in reporting structures. These changes and the uncertainty they bring may increase the risk of employees suffering from stress. It is therefore important for employers to stay alert to signs that an employee is not coping with stress. If the signs are serious it is important for the manager to intervene and be proactive. In the Dickins case the employers were criticized for expecting the employee to come up with the solution.

Disability Discrimination

Employers are well versed in complying with disability related issues during the redundancy selection process, but they often overlook that disability issues can arise in the aftermath. Employers could face disability discrimination claims if changes to working conditions create a situation which exacerbates employees' existing medical conditions.

The statutory definition of a disability requires the condition to be substantial and long term. Pre-existing medical conditions, both mental and physical, are more likely to meet these requirements. A reduction in the workforce or changes in working patterns may worsen an employee's medical condition and a failure to identify this and consider whether reasonable adjustments should be made will lead to an increased risk of disability discrimination claims. Crucially, unlike personal injury claims, disability discrimination claims are not covered by employers' liability insurance. And awards for discrimination claims are uncapped.

How To Avoid Claims From "Survivors"

  • Proper communication with all staff throughout a redundancy consultation process is an important starter to ease anxiety. Be clear about the reasons for the changes and remember to keep everyone informed - not just those who are directly affected.
  • Train managers on looking for the signs of stress and ensure they have the skills to manage the surviving employees in a supportive manner throughout the transition period. 
  • Carry out regular risk assessments, including those in relation to workplace stress. The HSE website has a dedicated section on workplace stress and provides guidance on this (http://www.hse.gov.uk/stress/index.htm).
  • Monitor absences closely and make use of occupational health input.
  • Consider what retraining needs the employees will have. Remember that some may be performing new roles and will require a period of transition before they become fully effective.
  • Have a "survivor strategy". Line management should have regular discussions with staff to ensure they feel supported in their new role or new reporting structure. Be forward looking and positive.

Andrew McConnell
Dundas & Wilson LLP
andrew.mcconnell@dundas-wilson.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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