Legal advice: Stress in the workplace

Not knowing your staff are suffering from stress or not attempting to help if they are is no defence.

By Rebecca Caws of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

Many employers in the pub industry already have specific stress policies in place, which is good news for potential sufferers and their employers alike, since any issues are likely to be recognised and dealt with before they escalate into a major problem. It appears, however, that the duty an employer owes its employees may have increased as a result of a recent House of Lords case, Barber v Somerset County Council.

In this case, a teacher was diagnosed by his GP as suffering from stress and depression. The school he worked at was aware of the diagnosis but failed to take what the Lords referred to as "the prudent approach". This meant that, as employers, the school should have investigated and provided assistance to the teacher, if only in the short term, "to see how his difficulties might be improved". The school failed to do this.

As soon as an employer is aware of the existence of an employee's stress or depression, steps should be taken to assist the employee. But how can one establish if someone is suffering from, or is likely to suffer from, stress? It will often be very difficult for an employer to recognise this - after all, many people are reluctant to broadcast their problems.

A bar manager suffering with staff shortages and rowdy customers will naturally be under pressure, but he will probably choose not to complain, knowing that his employer is likely to regard this as part of the job. But couple that pressure with a continual requirement to meet ever-increasing targets, while at the same time cutting costs, plus the late finishes and early starts that are normal in your industry, and it begins to become quite conceivable that the poor manager may well be a candidate for stress.

Suffering in silence, however, means that an employer may have no idea about potential problems. This is where a stress policy will prove invaluable because it aims to identify signs of stress and to provide constructive steps for dealing with the situation from both the employer's and employee's points of view. The school in the Barber v Somerset case was found to have breached its duty of care to its employee, but at what point should the school have suspected there was a problem? The teacher had complained about his workload and claimed that he was losing weight and looking drawn just before he was signed off for stress and depression.

Should the school have suspected an underlying problem when the teacher complained about the workload? And should the school have made enquiries as to the cause of the weight loss or tiredness?

Imagine how intrusive such questions could be. In fact the House of Lords decided that the school should have been aware of, and should have reacted to, the issue after receiving sick notes from the teacher's GP and after the teacher had approached members of the school's management team on the issue.

The message to employers is fairly clear. Ensure that you are able to recognise when an employee is suffering from stress and that you deal with the situation without delay. Employees should take heart and be encouraged to speak out and alert their employer to stress suffered as a result from pressures at work. There is, however, a fine line between the normal pressures of a job and workplace stress and an employer's duty will only arise in cases of genuine stress.

Another thing to worry about…​

On the subject of stress, how many times have you worried about inadvertently selling alcohol to under 18s? You may have good reason to worry.

The Licensing (Young Persons) Act 2000 (which came into force on January 23 2001) redefined existing underage offences and added a new offence. It provided that any person (rather than just the licensee or his/her servant) can commit the offences of:

• Selling or knowingly allowing the sale of alcohol to a person under 18
• Knowingly allowing the consumption of alcohol by a person under 18 in a bar and
• Knowingly delivering or allowing the delivery to a person under 18 of alcohol sold in licensed premises for consumption off the premises.

But what does "person" mean? "Who cares?" you may say. The answer is Liverpool and Haringey Councils, Marks & Spencers and Somerfields Stores. And so should you. Why? On May 5 this year, the High Court had to rule whether a corporate employer (which did not hold a justices' licence) could be held criminally liable for one of the above offences or whether the risk was solely that of the licensee and the licensee's employees. The court decided that the section in the act was "ambiguous". I wonder how many times we will hear that said of the Licensing Act 2003. So it said that it had to look at the parliamentary debates in Hansard to establish what had been intended.

Its conclusion was that all the act intended to do was close a loophole that had previously allowed staff who physically sold alcohol to escape liability if they were not employed by the licensee. As such, the word "person" was not to be regarded as extending to include a limited company which ran a store (or, by analogy, a pub) or indeed any company or individual which employed a licensee. It should instead be read as meaning only the individual who has committed one of the infringing offences.