UpFRONT De-stressing prosecution risks

The first criminal prosecution under the Health & Safety in Employment (HASIE) Act highlights some of the misconceptions around what constitutes “workplace stress” and why employers shouldn’t get too stressed about the expanded Act’s implications.
Kensington Swan partner Clayton Kimpton says that while the prosecution proved successful, recent judgment against Nelson company Nalder & Biddle resulted from “fairly rare scenario”. An employee, hired in August 2003 as financial assistant, was shunted into managing the accounts department following the sudden resignation of her two superiors.
A couple of months later, the employee informed her CEO that she was suffering stress-related chest pains and was on medication. The firm agreed to hire two assistants. But the assistants needed to be trained.
Another month passed and further meeting with the CEO resulted in an agreement to hire qualified accountant in December ’03. The employee was placed on stress leave in January but was forced to attend an important meeting at the end of that month. She took further stress leave and medical investigations concluded that her condition was directly related to stress in her employment.
“The issue in Nalder & Biddle was that the employer knew of and acknowledged the problem of the employee’s stress, yet failed to alleviate the stress prior to the injury occurring,” says Kimpton. In other words the employer failed to take all practicable steps – as required under the HASIE Act.
Despite the more recent inclusion of stress as workplace hazard, the legal obligation of employers to take all practicable steps to ensure employee safety hasn’t changed, notes Kimpton. If an employer either ignores this duty or doesn’t satisfy its requirements then there could be liability should an employee or OSH decide to take legal action.
“The threshold question in cases of stress is whether this kind of harm was reasonably foreseeable.”
In this case it was – although the employer has been categorically informed the employee was suffering from medically diagnosed stress, they hadn’t addressed the issue sufficiently.
Employers can take number of steps to minimise risk, says Kimpton, including:
* establish policy on stress, communicate it to employees and review it regularly;
* monitor employee workloads and sick leave;
* education managers and employees on the dangers of workplace stress;
* carry out regular appraisals to let employees know what is expected of them and communicate any problems that arise;
* when complaints are received regarding intolerable working conditions, act promptly and appropriately;
* consider provision of employee assistance programmes.
“Don’t stress, recognise potentially stressful situations, take steps to minimise or avoid the chance of harm occurring, then monitor the situation to ensure improvements are being made and no-one is left floundering,” says Kimpton.