Prosecution for work-related stress "just matter of time", law event hears

HSE had been expected to attend the Health and Safety Lawyers Association annual conference, where panelists were invited to discuss wellbeing, stress, mental health and the future of regulation among other topics. But owing to the general election, a speaker could not attend.

However, Dr Paul Litchfield, chair of the UK’s What Works Centre for Wellbeing, stepped in to share his views on what can be expected in the future from HSE and stress.

Explaining how he has heard that HSE inspectors are being given training in the stress management standards and how to enforce them, he commented: “That would suggest to me that the HSE is gearing up for a potential prosecution.”

He went on: “What that might look like is difficult to say. It might be a single incident that is particularly high profile or, more likely an incident involving a group of people who are all suffering from mental health problems and there is a line of sight to corporate responsibility for that harm.

"Demonstrating that causal link is really difficult in this area, but I think, if a case came along where it looked like a chance of a successful prosecution, I think the appetite from the HSE is changing and they are more likely to take it now than say 5 years ago."

Others later pointed to examples abroad, such as in France, where a spate of suicides among employees at the same firm, including one man who set fire to himself outside the office block, has led to a prosecution against the employer, France Télécom.

Joscelyne Shaw, director or strategy at Mates in Mind, agreed and said: “HSE has said for some time now that in respect of their strategy, stress is a priority area. Really it is just a matter of time before they do start to take action.” However, she did caveat that stress and particularly mental health is a new area: “HSE is learning, as much as we are.”

The panel also discussed legal minimum duties on work-related stress and mental health, and how companies should be approaching mental health risks.

Ruth Denyer, Group risk director ITV, said employees should be able to see from the very top level that the company’s commitment is to both good mental and physical health. “Health and safety policy statements have lost their way slightly. They are a compliance document, rather than a commitment,” she said.

Litchfield agreed, saying that complicated policies simply ‘gather dust on shelves’, or ‘clog up the hard drive’: “A simple, short policy statement that makes it clear the company is committed to zero avoidable harm and be explicit that includes mental health as well as physical health, is an essential minimum.”

As well as predicting a prosecution, he thought that HSE’s stress management standards (which he praised as “world class”) are due a review and would likely include a new principle cause of stress to the current list of six. “When the standards are reviewed, it is likely that the one thing that will be added into those elements is organisational justice.”

Organisational justice refers to the extent to which employees perceive workplace procedures, interactions and outcomes to be fair in nature. It can include issues related to perceptions of fair pay, equal opportunities for promotion, and personnel selection procedures, which he joked the audience of lawyers would ‘know a lot about.’

HSE published new criteria for investigating cases of work-related stress in October.

The guidance says it will investigate if it receives evidence that a “number of staff are experiencing work-related stress or stress-related ill health (i.e. that it is not an individual case)”.

The HSLA Annual Conference took place in London on Friday 22 November 2019