Reports that the Minister of Labour Margaret Wilson is considering legislation giving employees the power to refuse tasks they believe to be unsafe in terms of the Health and Safety in Employment Act 1992, might seem innocuous enough at first glance.
But deeper analysis of the full implications will leave employers feeling concerned. On the surface, it seems obvious and – some might argue – perfectly reasonable that employees have the right to flick the switch on machinery they believe to be dangerous. Employees and responsible employers will all agree on that. Taken in isolation, such an idea would received broad general agreement.
However, Wilson’s proposals should be taken in conjunction with the implications of two recent high profile court cases. The two recent court cases effectively ruled that workplace stress is now officially designated as hazard as defined by the Health and Safety Act. From being common byproduct of demanding work environment, stress has now been elevated into an official workplace hazard. Employers beware.
The obvious question employers will be raising is this: If employees can refuse tasks which they believe to be hazard, will they be able to refuse tasks because they believe they may be too stressful. Logically, this would appear to be the case. The implications are significant.
The message to employers is clear: Handle stressful work situations in responsible way or risk being subjected to large compensation claims. If you don’t, you could have workforce legitimately doing tasks that hitherto caused few problems at all.There’s little doubt that workplace stress is real phenomenon. We work longer hours than ever before, and the pressures of work seem to be ever-increasing. The challenge for responsible employers is to manage stress-related risk more carefully than ever before, particularly when it starts to impact on the physical and psychological safety of employees.
Nobody is suggesting that the stress felt in both Gilbert v Attorney General and Brickell v Attorney General was anything but very real, and had disastrous implications for both plaintiffs’ physical and mental health.
Drawing stress line
However, the problems could arise when other – more litigious employees – notice the large compensation pay-outs awarded and believe they could take advantage of the situation. The problem is one of definition. It is easy to measure the effect of traditional workplace hazards – faulty machinery can cause physical injuries which, while they are unfortunate for those affected, are apparent and relatively easy to quantify. But stress is different matter altogether. People react to stress in different ways. It is very subjective. Issues and pressures that one person may take in their stride, will cause another person real stress.
How do we determine the boundaries? If someone becomes ill because of stress and another employee doing the same job and subject to the same pressures, doesn’t become ill (perhaps because of higher resilience to stress) will the latter also be able to sue? And if not, why not? Will the second person also be able to refuse to undertake assignments which have caused his or her colleague stress, even if they have had no impact to date on themselves.
It’s worth outlining the two cases which have opened this can of worms, because they are extraordinary situations and not to be belittled. But while they are exceptional cases, when they are combined with Wilson’s proposals, they will have far-reaching implications.
In Gilbert v Attorney General (June 2000), the plaintiff sued the Department of Corrections after retiring from his job as probation officer due to ill health. Gilbert claimed the ill health was caused by the department’s multiple breaches of the express and implied terms of his employment contract.
In particular, Gilbert claimed that an excessive workload and the department’s failure to fill vacant probation officer positions contributed to his development of coronary artery disease and subsequent physical collapse. Judge Colgan ruled that Gilbert’s claims were justified because as responsible employer it was the department’s duty to:
? not conduct itself in manner calculated or likely to destroy or damage the relationship of trust and confidence between employer and employee;
? take reasonable care to avoid exposing Gilbert to unnecessary risk of injury to physical and psychological health;
? provide and maintain safe system of work; and
? act as good and considerate employer, especially in dealing with Gilbert’s concerns in relation to workplace health and safety.
The court found that the department breached these obligations and awarded Gilbert almost $800,000. Particularly relevant to all employers is Colgan J’s criticism of the department’s health and safety policy that did not identify stress as hazard. As result it also failed to monitor employees’ health in relation to the hazard – as required by the Act – in spite of clearly identified patterns of sick leave taken as result of the stress. Although Gilbert’s job was stressful by its nature, the department was ruled to have failed to minimise the hazards Gilbert was exposed to.
In Brickell v Attorney General, the New Zealand Police Service was found liable for breaching common law and statutory duties.
Brickell was video camera operator and after years of exposure to horrific sights, developed post-traumatic stress disorder (PTSD). Although he received some counselling from the police, who recognised the stressful nature of the job, the court ruled that the Police Service should have appreciated that Brickell was prone to developing PTSD and taken appropriate steps to combat this.
Brickell was awarded $242,000 damages. Take in isolation, these two decisions highlight how important it is for employers to comply with the Act and take care not to expose employees to risks of injury to physical and mental health. We already knew that before. But we were less sure that ?harm’ under the Health and Safety in Employment Act 1992 included mental and emotional harm. Now that uncertainty has disappeared.
The problem that will keep employers, employees and their respective advisers busy now is defining exactly what constitutes stress, given people’s ability to cope with situations in different ways. More importantly, employers will need to look carefully at the impact of Ms Wilson’s proposed legislation on the day-to-day running of their business. If business isn’t careful, we could have spate of stress-related refusals to work on our hands.
To avoid future liability, employers will need to take care to protect their staff from the harmful consequences of workplace stress. good first step would be to look carefully at stress management policies. And do it soon – before it’s too late.