Managing stress-related absence in schools
26 February 2019
It will not be news to the majority of HR departments that stress-related absence in schools has been rising steadily over recent years. A freedom of information request revealed that in the Academic Year 2016/2017, a total of 3,750 teachers across 82 schools that replied to the request were signed off on long-term sick leave due to the pressure of work, anxiety and mental ill-health.
Dr Mary Boustead, joint general secretary of the National Education Union, warned that schools are facing an ‘epidemic of stress’. Numerous changes in the education sector since 2014, funding cuts and the increase on collecting and collating data within schools have been blamed for the problem.
Aside from the obvious desire for schools to promote staff wellbeing in order to optimise performance, there are several reasons why HR departments should prioritise reducing stress among staff. This article examines the potential risks of stress-related absence and provides some practical tips to manage stress and reduce stress-related absence, whether work-related or otherwise, within your workforce.
Employment tribunal claims
Disability related claims
In some cases, it is possible that stress-related absence could be related to a 'disability' as defined by the Equality Act 2010 (EqA). It is important to note that this will not apply to all absences as the definition of ‘disability’ covers only physical or mental impairments, which are likely to last (or have lasted) for at least 12 months, and which have a substantial adverse impact on the individual's ability to carry out normal day-to-day activities. If this is the case, schools should be aware of the potential claims that these staff could bring.
Where a staff member is off with a stress-related illness which amounts to a disability, the most common claims to fall foul of are: 'failure to make reasonable adjustments' and 'discrimination arising from a disability'.
Schools (and employers generally) have a duty to make reasonable adjustments where a disabled person is placed at a substantial disadvantage when compared with non-disabled colleagues because of a provision, criterion or practice. This duty to make reasonable adjustments applies where the school knows, or should reasonably have known, about the disability. Examples include: adjustments to a sickness absence procedure to accommodate an employee with a disability; or when scoring staff during a redundancy consultation process, days off sick as a result of a disability should be discounted. Generally, reasonable adjustments will not include paying sick pay in excess of that which the employee is entitled to under the sickness absence policy. In cases involving reasonable adjustments, obtaining a report from an occupational health advisor, to include suggestions for any adjustments that could be made, can prove useful.
Discrimination 'arising from' disability claims can occur where the staff member is treated unfavourably because of something 'arising in consequence' of the disability and the school cannot show that the treatment is 'a proportionate means of achieving a legitimate aim'. In practice, such a situation may arise where a teacher has been absent for a period of time as a result of a stress-related condition which amounts to a disability, and the teacher is dismissed as a result of poor attendance. The school may be pursuing a legitimate aim (such as enforcing adequate attendance levels across the school), but they must also demonstrate that their actions are a proportionate way of achieving that aim.
It is also important for employers to bear in mind the possibility of claims of direct discrimination (where, for example, a school dismisses an employee because they had a disability) or indirect discrimination (for example, where a school provision, criterion or practice disadvantages individuals with a particular disability and it cannot be objectively justified).
Unfair dismissal claims (including constructive unfair dismissal)
An unfair dismissal claim is most likely to arise in circumstances where a staff member has been off work for stress-related reasons and the school chooses to terminate the individual's employment as a result of either ill-health or poor performance. In these circumstances, the staff member could bring a claim, the prospects of which would depend on whether the termination was for a fair reason, and whether a fair process was followed.
It is important to remember that it is not impossible to fairly dismiss an individual as a result of stress-related absence, even in some cases where this is work-related, but the correct process must be followed, with due consideration of the specific circumstances. In cases where frequent or long-term stress-related absence results in a dismissal, one potentially fair reason that the school could rely on is capability.
Whether the termination was fair or a fair process was followed will depend on the facts of a particular case, including: the nature of the employee's illness; the effect on the staff member's performance; the effect of the absences; whether there are any other issues that the school should be aware of (for example, disability or bullying issues). In all cases, the school should follow its policies and procedures.
Even where the school has not terminated the staff member's employment, it is possible, in some cases, to bring a claim for constructive unfair dismissal. Where a staff member has suffered psychiatric injury as a result of stress at work, this can be sufficient to breach the implied term of mutual trust and confidence, which can form the basis of a constructive unfair dismissal claim.
Managing the termination of employment in these circumstances can be a complex and risky process and we recommend that where you are considering this, you should seek legal advice before proceeding.
Health & safety obligations and personal injury claims
Employers have both a statutory and common law duty to take reasonable care of the health and safety of their staff. Breach of the statutory duty can result in enforcement by the Health and Safety Executive (HSE), but in most cases, claims by employees are only possible for breach of the common law duty of care, which has resulted in injury.
In order to successfully bring a claim, the employee must show that the employer has breached its duty, the breach caused the injury (which can be a physical or psychological injury) and that the injury was reasonable foreseeable as a result of the breach. These sort of cases are likely to only arise in extreme cases because the employee must be able to demonstrate physical (or, as in most cases) psychiatric injury, rather than the emotional symptoms of ‘stress’.
By managing issues such as returning to work after a period of absence, grievances as a result of workplace bullying and encouraging effective communication with line management, it will often be difficult for an employee to demonstrate that the employee was in breach of their duty. An example of this arose in the case of Vahidi v Fairstead House School [2005] EWCA Civ 765, in which a teacher bought a personal injury claim against her employer after they allowed her to return to work following a period of absence as a result of a depressive illness. The Court concluded that although her relapse had been foreseen by the school, they had provided support to the teacher and monitored her on her return.
In another case involving a school, Barber v Somerset County Council [2004] UKHL 13, the court provided some guidance on the support that school employers are expected to provide to staff, even when faced with other operational issues. In that case, Mr Barber was a teacher who suffered a nervous breakdown after being required to take on some extra responsibilities after a restructure. He had approached senior management prior to his breakdown and told them that he was unable to cope with the workload and his health was being affected. The school argued that there was nothing further that it could have done to assist Mr Barber; it was facing significant problems including budget restraints and a looming Ofsted inspection, and all teachers were stressed and overworked as a result. The court did not accept this and said that, at the very least, senior management should have made a small reduction to his workload and made ‘sympathetic inquiries’ of Mr Barber in order to monitor his health. They even went as so far as to comment that ‘supply teachers cost money, but not as much as the cost of permanent loss through psychiatric illness of a valued member of the school staff.’
Steps being taken by the Department for Education and the government
After concerns were raised about absence levels within teachers as a result of work-related stress, the Department for Education published a toolkit for school leaders on reducing workload within schools in July 2018. The guidance is intended to assist schools in identifying the underlying reasons for absence and links to resources on a number of topics, including curriculum planning and resources, feedback and marking and managing change.
As a result of this guidance, the Secretary of State has committed to a ‘period of stability’ with no new assessments for primary schools and no changes to the national curriculum, GCSEs or A levels for the remainder of the parliament.
This was followed in November 2018, with a report by the Teacher Workload Advisory Group into 'making data work', which provided recommendations on how to remove unnecessary workload associated with data management. The government has issued a response to this report, committing to carry out research with the intention of producing additional content for the workload reduction toolkit.
Tips to manage stress amongst staff in schools
Consider using the 'Reducing workload in your school' guidance to identify and reduce issues causing work-related stress. The full guidance with links to resources is available here: https://www.gov.uk/guidance/reducing-workload-in-your-school
Ensure that you have the correct policies and procedures in place, such as:
- Flexible Working Procedure
- Anti-harassment and Bullying Policy
- Disciplinary and Capability procedure
- Grievance Procedure.
These policies should provide guidance to managers and allow HR to deal with issues which could cause workplace stress in a robust way, whilst minimising the risk of an employment tribunal claim. Procedures such as flexible working may assist in easing pressure on staff.
Ensure that your sickness absence policy provides for 'return to work interviews' and that your managers are using them effectively. This will help to identify if there is an underlying reason for sickness absence such as stress at work, and allow HR to put in place measures to reduce this, as appropriate.
Ensure that appraisals or performance reviews are being conducted regularly. As well as reviewing staff progress, this should also be used as an opportunity to raise any workload or stress-related issues.
Consider referring individuals to an occupational health advisor where stress-related absence is persistent to advise on any reasonable adjustments that could be put in place.
Consider training managers or a selection of staff in how to raise awareness and understanding of stress. Organisations such as Mental Health First Aid (MHFA) England provide training and resources for workplaces.
Ensure that the school is complying with their health & safety obligations. The HSE has produced a set of ‘Management Standards’ to assist employers in demonstrating good practice in order to minimise work-related stress. The full guidance is available here: http://www.hse.gov.uk/stress/standards/.
Disclaimer: The scope of this article is limited to a general overview of some of the legislation under which employees can bring stress-related claims. Schools should consult with their legal, HR and/or health & safety advisors, as appropriate.
If you have any questions raised by Natasha Letchford and Anthony Edwards' article, please contact us for an informal and confidential chat.
