Most read blog text 2018: “There will be more questions about stress liability”
Like I do every year before Christmas, I am republishing the article from my blog that attracted the highest readership in 2018. Incidentally, it is the very same article that I published at the beginning of December – either by coincidence or because of the fascinating topic it covers: A burnout not only has dramatic consequences for the individual concerned but also for the company. The question that arises in this context is whether the firm is (partly) responsible for the breakdown suffered by the employee and whether he or she could sue the employer. I therefore asked the lawyer and Managing Director of SIZ Care AG about the legal aspects of stress and burnout.
Claudia Kraaz: Companies have an obligation to protect the health of their employees. What does this duty of care mean in practice?
Kurt Mettler: You have to differentiate here between two different levels of care: The protection of physical wellbeing and the protection of mental health. Swiss Employment Law and the related ordinances contain detailed regulations governing the protection of individuals against physical health risks. However, there are no specific statutory rules requiring companies to safeguard their workforce against the consequences of excessive stress or prescribing the means by which this should be achieved.
In a ruling of March 23, 2015*, the Swiss Federal Administrative Court listed possible measures to prevent stress. This included improvements to the organization of work, the reduction of overtime, flexible working models, the promotion of a good working environment and the communication of praise or recognition. In the same ruling, the court also stated: “If stress results directly from the activity that is performed – i.e. not from the way working conditions are structured within the company – the corresponding burden is part of the employment contract and cannot be prevented by the employer.” However, the employer has duties of protection as soon as health issues appear as a result of work-related pressures. In short: Healthy working practices and respectful leadership are the best form of prevention.
DETERMINE THE OPERATIONAL STRESS AND RISK FACTORS OF A COMPANY
How can a company prove that it has done enough in this area?
The question of whether a company has done enough must be examined in each individual case by determining whether the employer can be proven to have violated its duty of care. One option for employers seeking to prevent burnouts is to identify the operational stress and risk factors in their own company. It is advisable to subdivide them into four categories: physical, psychological, social and organizational. A joint assessment should then be performed to see which of the identified stress and risk factors can be influenced and which cannot. The benefits for the company are twofold: On the one hand, it can define risk-mitigating measures, and on the other hand, the above-mentioned pressures that are directly related to work can also be determined.
In accordance with the motto ‘look instead of looking away’, the employer has a duty of care towards employees that includes addressing any visible problems in good time and finding out about possible operational causes. It is particularly important to document any discussions, even if the employer does not identify any need for action.
DIFFICULT TO PROVE WHAT CAUSED A BURNOUT
How can an employee prove that he or she has suffered a burnout due to business-related factors?
Since burnout is usually attributed to a combination of professional and personal factors, it will inevitably be difficult for suffers to prove what caused it. While burnout sufferers tend to see workplace exposure as the main trigger, employers tend to focus on the private life of the individual as being the primary cause of health problems of a psychological nature. And the truth lies somewhere in between.
In any case, it is important for employees who are suffering from stress to make their line manager aware of the situation during a personal discussion and for this to also be recorded in writing. This is key because the four parameters on which liability is based (breach of contract, damage, causal link, and fault) have to be proved by the employee. In practice, it is often difficult to show evidence of this – especially since the courts are (still) very cautious in their handling of cases related to stress liability.
Why have there been so few court rulings related to stress and burnout to date?
From a legal perspective, the difficulty of providing evidence is the main problem, as I just mentioned. Is it possible to demonstrate a causal link between the conduct or failings of the employer and the harm to the employee’s health? Is there any financial harm that is not covered by insurers? We shouldn’t forget that for an employee suffering from stress, the legal proceedings themselves are not only exhausting and an additional source of pressure but can also prove costly.
I believe there is also one more potential trigger: Even if the term ‘burnout‘ can be interpreted in very different ways and prompts a variety of reactions, it is agreed in almost all cases that the individual should have sought help sooner. It is likely that a kind of imbalance of power between the employer and employee also comes into play here – preventing employees from making demands.
24% of the workforce in Switzerland experience stress at work on a frequent or permanent basis. And 35% admit to usually or always feeling exhausted at the end of the day**. This translates into high costs for companies. Have businesses recognized the seriousness of the situation and taken the right measures? Where is action still needed?
Companies often see stress as the result of the personal problems of individual employees and they then restrict the measures they take to these cases, which they view as problematic. In doing so, they often underestimate or completely fail to recognize the impact of psychosocial risks (inadequate structuring and organization of work, unfavorable social environment at work).
It is advisable for companies to carefully monitor ‘their’ psychosocial risks. Topics such as work-related stress, mobbing and conflict situations in general will have an even greater role to play in the coming years. As part of their statutory duty of care, companies should ensure that psychosocial risks are identified at an early stage and that appropriate measures are taken. Questions about liability are likely to arise more and more in the future – this risk mustn’t be underestimated.
However: Measures that form part of a health management approach represent a medium- to long-term investment that needs to be supported and put into practice by the most senior management of the company. In a business world dominated by short-term thinking, this is no easy undertaking.
Kurt Mettler (aged 57) is a lawyer and Managing Director of SIZ Care AG. The company is an impartial and independent provider of services in the field of absences / case management. SIZ Care AG operates throughout Switzerland with a team of 27 employees. More than 100 companies with a total of around 30,000 employees benefit from the support of SIZ Care AG.
* Judgment of the Swiss Federal Administrative Court of March 23, 2015 – A-7441/2014
Additional figures on the impact of stress: https://gesundheitsfoerderung.ch/assets/public/documents/de/5-grundlagen/publikationen/bgm/faktenblaetter/Faktenblatt_034_GFCH_2018-10_-_Job-Stress-Index_2018.pdf
© Claudia Kraaz