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I am involved in a case that centres on the HSE Management Standards, whistleblowing and victimisation. I would like any views and opinions. Case law would be good if there is any. A search on this forum finds no reference to the HSE Management Standards and yet several on stress situations that could have been averted had the Management Standards been applied.
Background:
The HSE Management Standards are the HSE guidance on how employers can risk assess and control to prevent the hazards to workplace mental health arising from the stress-inducing actions of managers. The headings are control, demands, support, role, relationships and change. So, managers should give as much control to staff as possible, they should not make excessive demands, they should clearly define roles, they should offer support where it is needed, they should manage relationships - dealing with bullying for example and they should consult before bringing in change. An employer that fails to take account of these hazards has an unsafe workplace.
Unfortunately, it would appear that they are generally misunderstood as 'stress management standards'. They should really have been called the 'Leadership Standards', to avoid confusion. They are about the standards that leaders should meet in their management of the workplace, not about the standards for managing stress injuries. I have now seen a few school risk assessments, online, that suggest that the risk assessments for stress, following the Management Standards, should be performed after employees suffer from stress. I have also seen that some in the 'stress management industry' appear to be taking the same line. I phoned one up last week, they told me that they do the risk assessments after the injury! This is like showing people how to land well when they are tripped over rather than removing the trip hazards. It would appear that all concerned have failed to notice that the Management of Health and Safety at Work Regulations 1999 are about removing hazards to avoid injury, not dealing with injuries after they are caused. A cynic might observe that applying the Management Standards would be bad for their business. NB Slips and trips and stress from bad management appear to be the two major causes of injury in the workplace.
I had formed this view myself back in 2008 but had it rebuffed by my union who left me to fight a bullying case unsupported. In that case, the final outcome was the removal of a head who was a bully but only after two years of struggle by myself, much of that against my own union. Now I am back in the same place.
My timing has been good in my current case in 2018 as the PM commissioned the Stevenson Farmer report into workplace mental health. This has come up with the recommendation (page 42 43) that the Management Standards should be applied. This would appear to have led to the HSE revising their web pages to make the legal obligation clear. Good timing, but not enough, so far, to convince my union that they are wrong to think that the Management Standards are anything but an optional extra. Perhaps more worrying is the October 2018 TES article by the HSE lead on workplace stress that fails to mention the protection from the Management Standards. Even more worrying, Paul Farmer CBE, psychiatrist, chair of the NHS England Mental Health Task Force and CEO of mind and joint author of the report, fails to mention the Management Standards in Mind's advice on workplace stress.
To me it seems quite straightforward. Every employer should have a set of risk assessments that deal with the way in which they manage their operations, so ensuring that they do not pose a hazard to staff mental health. If the employer does not have the risk assessments on file then they are failing in their legal obligation. If their actions are contrary to the guidance and are causing staff stress then they are acting outside of the law.
Questions for the experts:
Question 1: Would it follow that an employer that does not have the risk assessments and controls would be in breach of their legal obligations under the 1974 and 1999 acts?
Question 2: If an employer fails to ensure that they have a safe workplace, as in question 1, what enforcement can be made? I gather that, since 2003, it is possible to take civil action where an employer is so failing. How would I take civil action to see the law enforced?
Question 3: Subject to failure at 1, an employee calls on the whistleblowing act as their employer is failing to follow the guidance/any other and so protect staff mental health. Given that the potential injuries are to all staff (cf recent case law) and that the injuries may be serious, does this form a valid protected disclosure?
Question 4: An employee, who has been suffering from stress, and who has made a protected disclosure (subject to 2) about a failure of his employers to control stress hazards, is then subjected to disciplinary action, as below. Is this a case of victimisation? If so, what can be done? Is the action under the PHA? If so, how do you do that? Is this by laying an information before a court?
Details for question 4
The employee, a month before, had been hospitalised for a workplace stress injury, a suspected stroke, following high blood pressure and thunderclap headache. This, ironically, brought on by the stress of approaching a manager re their failure to apply the Management Standards to control workplace stress. The employee had reported great stress earlier following actions by a new manager. The employee had also had complaints of bullying by the same manager from other employees, one of who had been off-sick as a result. He had tried to get one of them to revoke their contract and take a pay cut and so on.
A meeting was called without an agenda or list of attendees. These were delivered some 90 minutes before the meeting. The employee had just emailed asking for the information and had also invoked the whistleblowing policy as he had a bad feeling about the whole situation. An email to his union rep complaining about the failure of the managers to adopt the Management Standards had just been forwarded by her to the new manager, the one who had been bullying others. She couldn't see any problem with this! The employee knew that he was challenging their authority and did not think that it was being taken well. He had no idea what was coming next.
The meeting was conducted not by the school disciplinary manager, the head, but by the new manager, the one who had been the subject of bullying allegations by other members of staff.
Charges of misconduct that were laid before the employee:
While the employee gained an agreement from the head that the school will look at the Management Standards, the employee has been told that any risk assessments and implementation of controls, as per the Management Standards, (which would have protected him from stress) would be held back until such disciplinary action is completed. He has also been told that any responses to his complaints of managers bullying staff would also be held until the disciplinary action against him was completed. His doctor signed the employee off work on account of stress following two stress-related breakdowns at work.
The investigation that followed was one-sided. The employee was threatened with disciplinary action if he revealed any part of it. Meanwhile, the school called witnesses and took witness statements that were not revealed to the employee during the investigation. That the real charge was that the assembly was pointing the finger at bullying managers was not revealed until much later. When the witness statements were revealed, on the employee's demand to the investigator, as the school would not release them, many discrepancies were found. These should have led to further investigation of the gross failures by other employees and managers involving malicious accusations and either dishonesty or incompetence. The pastoral manager, when questioned about the previous form of the two badly behaved pupils had replied that any problem was due to the employee having a problem with the year group. He failed to mention the long-running track history of disruption by the pupils and the refusal of one to comply with disciplinary measures. Maybe he just hadn't bothered to use the school behaviour log or maybe he thought it would be clever to push attention away from his own failings as a pastoral manager.
The disciplinary meeting was held but the verdict held back pending an occupational health report.
OH letter and form statements supplied by the school to the employee were biased, putting the employee in the worst possible light. There was even scoffing at a 'constant' reference by the employee to the employer's duty to comply with the Management Standards. The employee complained about this bias and suggested that they seek better legal advice as tipping the scales was only going to lead to more needless time wasting. This led to some revision of the supporting statement but only partially. Much that made sense of the case but put the employer in a bad light was missed out.
This is where I am now. Looking at OH, not allowed back to work until that is done. Thinking that going into OH while the main causes of stress are still on me and are unlikely to be removed by an OH consultant that does not understand the Management Standards. I called her to find out and had my suspicions confirmed - she talked about applying risk assessments to injured parties not to removing the causes of stress coming from bad management.
The main causes of stress on me are:
1. No controls on managers actions (essentially bullying) as per Management Standards.
2. No response to my grievances re bullying.
3. Subjected to the disciplinary procedure which has failed to give a response to my counter-allegations, these are being ignored.
4. There is also the chronic workload stress, teaching a new subject, Computer Science, which I complained about, this year and last, but had dismissed by my line-manager as a fuss about nothing, 'Everyone has a lot of work to do'. Maybe, but not everyone had cut their hours by 20% to enable them to fit it all in - and despite working 24/7 still couldn't fit it all in. That would have just been pressure if it had been recognised and understanding given. However, that is now the least of my worries. I enjoy my work, I am good at it and while I do get stressed by not having all of the lessons prepared in time I can cope with that. I just soldier on but cannot cope with the stress that comes from managers who fail to consider how they might be stressing their employees.
The Kosher Bakery Case, Carmelli Bakeries Ltd v Benali may apply here. Due process not being followed indicates that the underlying motive was one of inflicting undue detriment on a troublesome employee rather than that of simply achieving a correction in the behaviour of the employee.
I have, of course, had more than enough of it and want as quick a fix as possible so that I can get back to work. It would appear that the School are more than happy to drag it all out trying to find any way that they can to find fault with me rather than admit that they are at fault.
I am thinking that is such an extreme case of blatant victimisation that having their errors pointed out to them, by a solicitor, should be sufficient for them to desist. However, I am wary as the facts that I rely upon, especially the Management Standards, appear to be so readily misunderstood.
I also really have to wonder if any employment law solicitors understand the Management Standards? A look at iCroner just now revealed a school asking whether or not they had to risk-assess for stress? iCroner stated that they did but that there was, 'no one way of doing so' and then gave advice that ignored the MHSWR 99 and focussed on questionnaires rather than the toxicity of the workplace as caused by managers who fail to risk assess their own behaviour.
Background:
The HSE Management Standards are the HSE guidance on how employers can risk assess and control to prevent the hazards to workplace mental health arising from the stress-inducing actions of managers. The headings are control, demands, support, role, relationships and change. So, managers should give as much control to staff as possible, they should not make excessive demands, they should clearly define roles, they should offer support where it is needed, they should manage relationships - dealing with bullying for example and they should consult before bringing in change. An employer that fails to take account of these hazards has an unsafe workplace.
Unfortunately, it would appear that they are generally misunderstood as 'stress management standards'. They should really have been called the 'Leadership Standards', to avoid confusion. They are about the standards that leaders should meet in their management of the workplace, not about the standards for managing stress injuries. I have now seen a few school risk assessments, online, that suggest that the risk assessments for stress, following the Management Standards, should be performed after employees suffer from stress. I have also seen that some in the 'stress management industry' appear to be taking the same line. I phoned one up last week, they told me that they do the risk assessments after the injury! This is like showing people how to land well when they are tripped over rather than removing the trip hazards. It would appear that all concerned have failed to notice that the Management of Health and Safety at Work Regulations 1999 are about removing hazards to avoid injury, not dealing with injuries after they are caused. A cynic might observe that applying the Management Standards would be bad for their business. NB Slips and trips and stress from bad management appear to be the two major causes of injury in the workplace.
I had formed this view myself back in 2008 but had it rebuffed by my union who left me to fight a bullying case unsupported. In that case, the final outcome was the removal of a head who was a bully but only after two years of struggle by myself, much of that against my own union. Now I am back in the same place.
My timing has been good in my current case in 2018 as the PM commissioned the Stevenson Farmer report into workplace mental health. This has come up with the recommendation (page 42 43) that the Management Standards should be applied. This would appear to have led to the HSE revising their web pages to make the legal obligation clear. Good timing, but not enough, so far, to convince my union that they are wrong to think that the Management Standards are anything but an optional extra. Perhaps more worrying is the October 2018 TES article by the HSE lead on workplace stress that fails to mention the protection from the Management Standards. Even more worrying, Paul Farmer CBE, psychiatrist, chair of the NHS England Mental Health Task Force and CEO of mind and joint author of the report, fails to mention the Management Standards in Mind's advice on workplace stress.
To me it seems quite straightforward. Every employer should have a set of risk assessments that deal with the way in which they manage their operations, so ensuring that they do not pose a hazard to staff mental health. If the employer does not have the risk assessments on file then they are failing in their legal obligation. If their actions are contrary to the guidance and are causing staff stress then they are acting outside of the law.
Questions for the experts:
Question 1: Would it follow that an employer that does not have the risk assessments and controls would be in breach of their legal obligations under the 1974 and 1999 acts?
Question 2: If an employer fails to ensure that they have a safe workplace, as in question 1, what enforcement can be made? I gather that, since 2003, it is possible to take civil action where an employer is so failing. How would I take civil action to see the law enforced?
Question 3: Subject to failure at 1, an employee calls on the whistleblowing act as their employer is failing to follow the guidance/any other and so protect staff mental health. Given that the potential injuries are to all staff (cf recent case law) and that the injuries may be serious, does this form a valid protected disclosure?
Question 4: An employee, who has been suffering from stress, and who has made a protected disclosure (subject to 2) about a failure of his employers to control stress hazards, is then subjected to disciplinary action, as below. Is this a case of victimisation? If so, what can be done? Is the action under the PHA? If so, how do you do that? Is this by laying an information before a court?
Details for question 4
The employee, a month before, had been hospitalised for a workplace stress injury, a suspected stroke, following high blood pressure and thunderclap headache. This, ironically, brought on by the stress of approaching a manager re their failure to apply the Management Standards to control workplace stress. The employee had reported great stress earlier following actions by a new manager. The employee had also had complaints of bullying by the same manager from other employees, one of who had been off-sick as a result. He had tried to get one of them to revoke their contract and take a pay cut and so on.
A meeting was called without an agenda or list of attendees. These were delivered some 90 minutes before the meeting. The employee had just emailed asking for the information and had also invoked the whistleblowing policy as he had a bad feeling about the whole situation. An email to his union rep complaining about the failure of the managers to adopt the Management Standards had just been forwarded by her to the new manager, the one who had been bullying others. She couldn't see any problem with this! The employee knew that he was challenging their authority and did not think that it was being taken well. He had no idea what was coming next.
The meeting was conducted not by the school disciplinary manager, the head, but by the new manager, the one who had been the subject of bullying allegations by other members of staff.
Charges of misconduct that were laid before the employee:
- One involved a breakdown under stress, triggered by a class with 2 badly behaved pupils. Employee shouted loudly, accused colleague responsible for pastoral care of the pupils concerned of failure. Doctor confirmed stress as cause. Chronic stress, that the employer had been repeatedly informed of (so all foreseeable) underlay this with the addition of several other acute sources of workplace stress that led to work through the weekend in school etc.
- The other was that an attempt to explain bullying in a school assembly given by the employee was misconduct as it included a general reference to managers sometimes being bullies. Two managers (themselves separately accused of bullying by the employee in grievances) wrote complaints as they were made very uncomfortable by the subject of the assembly; one had wanted to stop the assembly. They evidently didn't know their Hamlet well enough to have seen what they were revealing by making such complaints.
- There was originally also a charge, later dropped, that the managers did not like the tone of the employee's emails. 'We are not used to being spoken to like that'.
While the employee gained an agreement from the head that the school will look at the Management Standards, the employee has been told that any risk assessments and implementation of controls, as per the Management Standards, (which would have protected him from stress) would be held back until such disciplinary action is completed. He has also been told that any responses to his complaints of managers bullying staff would also be held until the disciplinary action against him was completed. His doctor signed the employee off work on account of stress following two stress-related breakdowns at work.
The investigation that followed was one-sided. The employee was threatened with disciplinary action if he revealed any part of it. Meanwhile, the school called witnesses and took witness statements that were not revealed to the employee during the investigation. That the real charge was that the assembly was pointing the finger at bullying managers was not revealed until much later. When the witness statements were revealed, on the employee's demand to the investigator, as the school would not release them, many discrepancies were found. These should have led to further investigation of the gross failures by other employees and managers involving malicious accusations and either dishonesty or incompetence. The pastoral manager, when questioned about the previous form of the two badly behaved pupils had replied that any problem was due to the employee having a problem with the year group. He failed to mention the long-running track history of disruption by the pupils and the refusal of one to comply with disciplinary measures. Maybe he just hadn't bothered to use the school behaviour log or maybe he thought it would be clever to push attention away from his own failings as a pastoral manager.
The disciplinary meeting was held but the verdict held back pending an occupational health report.
OH letter and form statements supplied by the school to the employee were biased, putting the employee in the worst possible light. There was even scoffing at a 'constant' reference by the employee to the employer's duty to comply with the Management Standards. The employee complained about this bias and suggested that they seek better legal advice as tipping the scales was only going to lead to more needless time wasting. This led to some revision of the supporting statement but only partially. Much that made sense of the case but put the employer in a bad light was missed out.
This is where I am now. Looking at OH, not allowed back to work until that is done. Thinking that going into OH while the main causes of stress are still on me and are unlikely to be removed by an OH consultant that does not understand the Management Standards. I called her to find out and had my suspicions confirmed - she talked about applying risk assessments to injured parties not to removing the causes of stress coming from bad management.
The main causes of stress on me are:
1. No controls on managers actions (essentially bullying) as per Management Standards.
2. No response to my grievances re bullying.
3. Subjected to the disciplinary procedure which has failed to give a response to my counter-allegations, these are being ignored.
4. There is also the chronic workload stress, teaching a new subject, Computer Science, which I complained about, this year and last, but had dismissed by my line-manager as a fuss about nothing, 'Everyone has a lot of work to do'. Maybe, but not everyone had cut their hours by 20% to enable them to fit it all in - and despite working 24/7 still couldn't fit it all in. That would have just been pressure if it had been recognised and understanding given. However, that is now the least of my worries. I enjoy my work, I am good at it and while I do get stressed by not having all of the lessons prepared in time I can cope with that. I just soldier on but cannot cope with the stress that comes from managers who fail to consider how they might be stressing their employees.
The Kosher Bakery Case, Carmelli Bakeries Ltd v Benali may apply here. Due process not being followed indicates that the underlying motive was one of inflicting undue detriment on a troublesome employee rather than that of simply achieving a correction in the behaviour of the employee.
I have, of course, had more than enough of it and want as quick a fix as possible so that I can get back to work. It would appear that the School are more than happy to drag it all out trying to find any way that they can to find fault with me rather than admit that they are at fault.
I am thinking that is such an extreme case of blatant victimisation that having their errors pointed out to them, by a solicitor, should be sufficient for them to desist. However, I am wary as the facts that I rely upon, especially the Management Standards, appear to be so readily misunderstood.
I also really have to wonder if any employment law solicitors understand the Management Standards? A look at iCroner just now revealed a school asking whether or not they had to risk-assess for stress? iCroner stated that they did but that there was, 'no one way of doing so' and then gave advice that ignored the MHSWR 99 and focussed on questionnaires rather than the toxicity of the workplace as caused by managers who fail to risk assess their own behaviour.
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