I am concerned about an issue with one of our employees who seems quite stressed by her workload and various management issues.
Recently, one of my colleagues in HR found the employee crying in the toilets. She was complaining that she was under an enormous amount of pressure because of a number of projects that we have ongoing at the moment. I am aware that she raised issues about being over-worked in her appraisal last year. She has also had some time off with a stress-related illness. This morning, the employee told her line manager that the stress that she was suffering at work was causing her to suffer violet mood swings at home and that she is not sure how much longer she can take this.
Our company offers all employees access to a confidential counselling service. I don’t know whether the employee has used this but she is definitely aware of it. Do I need to take any action or is it enough that we have offered her access to this service? I am sure I recall a case within the past couple of years which suggested that having the service was enough protection for us?
Your situation sounds remarkably similar to a case decided earlier this year, and it’s just as well that you wrote to me because failure to take action could well result in a hefty claim against your organisation.
Intel Corporation (UK) Limited v Daw
Mrs Daw was employed by Intel. As a result of her excessive workload, she suffered a breakdown and subsequently brought proceedings against Intel for personal injury. The High Court decided that injury to Mrs Law’s health was reasonably foreseeable: Mrs Daw was found in tears by a colleague and Intel had sufficient evidence that “urgent and appropriate action” ought to have been taken. Intel appealed on the basis that because it had the system of confidential help and counselling in place, and it could reasonably expect Mrs Daw to use that system, it should not be found to have breached its duty to Mrs Daw.
The Court of Appeal held that Intel should have sought to reduce the workload, and the provision of a counselling service could not do this and was therefore not a solution for all problems. Merely having the system in place did not mean that Intel escaped liability. In reaching this conclusion, the Court of Appeal was moving away from the earlier decision in Sutherland v. Hatton  EWCA CIV 76 which had held that where an employer offers a confidential counselling service with access to treatment, the employer is unlikely to be found liable for breach of its duty of care to its employees.
From this case, it is clear that employers must take action when they become aware that workloads are causing stress-related illness. Because you know that your employee is unwell and complaining about being over-worked, you must seek to address the issue before it becomes a potentially expensive claim: Mrs Daw was paid £33,000 per year by Intel, but was awarded damages in excess of £130,000 so these claims can be very costly – in terms of money and adverse publicity.
So what should you do? Firstly, you ought to seek to reduce the employee’s workload as soon as possible. You are required to take such steps that are reasonable in the circumstances. When deciding what steps are reasonable, a court would take into account your organisation’s resources and the risk of harm to the employee. Consider whether you can bring in additional cover. Is it appropriate to offer the employee a sabbatical? You cannot completely change the employees role and duties without consulting her, but it may be that her responsibilities can be reduced until some of the projects have wound-down. I’m afraid that there are no simple answers, so you will have to carefully consider the options that are appropriate in the circumstances.