News
Just what employers need: A little more stress
Earlier this week the Attorney General announced a proposal for significant reform to the Health and Safety in Employment Act. Amongst the proposed amendments to the law is a proposal to place an obligation upon employers to address workplace stress.
Stress, at least in an employment context, has become something of a buzzword over recent years. Prior to the early 1990s stress related conditions were not widely recognised by many branches of medical science. Since that time, however, the practice of psychology has developed to allow apparently comprehensive diagnoses to be made of mental conditions related to stress. As a result, it has become more feasible for medical practitioners to provide opinions about the occurrence of stress in the workplace.
One of the consequences of this development in medical science has been the advent of employment claims in New Zealand related to workplace stress. A trilogy of cases over the course of the last year (one of which is currently on appeal to the Court of Appeal) established that New Zealand law recognises a contractual obligation upon an employer to take reasonable care not to cause employees physical or psychological injury. The claims brought against employers for breach of this obligation (which have involved allegations both about the nature and volume of particular work) sought damages in six figure sums.
On the one hand, it could be argued that the proposed amendments to the health and safety legislation do little more than recognise the advances in both medical science and in the common law related to workplace stress.
On the other hand, however, it could be said that the introduction of this obligation upon employers to guard against workplace stress creates a new burden - with its own share of uncertainties.
First, criticism might be made of the proposed legislation that no definition is offered of the term "work-related stress". Stress is, by its nature, an insidious commodity. It is recognised that a certain amount of stress in a workplace environment is benign - and may even be advantageous to a proper working environment. How can an employer make a determination about what constitutes stress - and what might constitute an appropriate level of stress?
Secondly, what might be stressful to one employee might be regarded as stimulating by another. A cynic might argue that a medical opinion might be obtained to establish any circumstances as stressful. How is an employer to monitor stress in individual circumstances?
Thirdly, an otherwise resilient employee might find particular circumstances stressful on a certain day - for example, an employee undergoing a marital separation may be more susceptible to stress in the workplace for a certain period. How can an employer take steps to take account of such variables?
The Attorney General has indicated that the Department of Labour will shortly issue updated guidelines to employers providing information about guarding against workplace stress. Employers might hope that those guidelines would address some of the issues raised above. In the meantime, employers may wish to consider some of the following options for monitoring stress in their workplaces:
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An employer may consider requiring some of its employees to undergo training to recognise the outward symptoms of stress. This would enable employees to recognise early signs of stress in their co-workers.
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Employers may wish to undertake audits of their workplace to determine such things as the number of hours being work by individual employees. Audits of this kind would allow some prospect of identification of overwork related trauma.
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If adopting a counsel of caution, employers may consider retaining the services of a clinical psychologist to provide reviews of the workplace (perhaps on a three monthly basis). The introduction of an expert to determine the incidence of stress in a workplace may provide the employer with some comfort about satisfaction of its obligations.
One of the criticisms that is made about these proposed changes is that each of the courses of action outlined above will simply not be economically feasible for the majority of employers in New Zealand - most of whom are small businesses. Arguably, it is those employers who may be exposed to the greatest risk by the introduction of these proposed changes.
