Case law has already made clear that life itself is stressful, so the HSE's pilot code may not really help claimants, says Lord Hunt

Not just words but people, as T.S. Eliot put it, "crack and sometimes break under the burden".

The HSE's recently published pilot code on managing stress in the workplace has caused alarm bells to ring with some employers, their insurers and brokers.

Presenting its six 'stress tests', the HSE commented that "the introduction of these new measures should make it easier for employees to bring actions against their employers".

This is a clear demonstration that stress has moved up the HSE's agenda, but the new code needs to be viewed in context. The HSE appears to have ignored one fundamental fact when looking at the cause of stress - namely that life itself can be stressful.

It has assumed that all stress at work is caused by excessive demands placed upon the employee by the employer.

Successive court cases have made it clear that this is not so, from Walker v Northumberland [1995] to Pratley v Surrey County Council this year, with Garrett v London Borough of Camden and, especially Hatton v Sutherland County Council in between. This case gives clear guidelines as to what the employer could and should be expected to do.

Stress, in itself, is not sufficient to merit a claim. There must be a recognisable psychiatric illness. Employers have a duty to provide a safe place of work and to protect an employee against injurious levels of stress. But they do not have a duty to make unnecessary, or intrusive, inquiries into an employee's mental wellbeing. If the employee is showing signs of stress, the employer must take steps to alleviate that.

The crucial point is that the employer must have had some warning, or indication, that the employee is suffering from such an illness.

As Hatton established, employers are entitled to assume that the employee is up to the normal pressures of the job. Employers and their insurers should therefore be wary of responding to the pilot code by embarking on wide ranging and expensive stress audits. There is always the danger that this could land them with knowledge that they neither wanted nor are required to obtain. Such stress audits will, of course, be disclosable documents in any subsequent action.

Unfortunately, a simple fact is that some people seek to blame their work for their stress related illness rather than the true cause, which will often lie elsewhere.

The HSE's six tests also ignore the fact that reaction to stress is highly individualised: different people are affected in different ways.

Claims for stress related illness remain difficult to prove, not because the law is out of step with society but because:

  • Many employers, particularly large organisations, already have good systems in place for combating work related stress
  • The causes of the stress often relate to external factors, rather than the workplace or, alternatively, the employee has wanted to minimise the extent of the problem from the employer.
  • Nevertheless, the launch of the pilot clearly raises awareness of work-related stress and any genuine attempt made to improve the welfare of employees is to be welcomed. We await feedback on the pilot code with interest.

    Lord Hunt is senior partner of national law firm Beachcroft Wansbroughs