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November 01, 2004

The Management Standard for Stress: Boosting Britain's litigation-compensation culture

Posted by John Adams

On 3 November Britain's Health and Safety Executive will be publishing the new Management Standard for Stress, which will force organisations to make "stress assessments". Britain's leading academic expert on risk, Prof. John Adams argues that this will do little or nothing to solve the real problems associated with stress at work. It will however do much to further boost Britain's litigation-compensation culture. For stress is very difficult to evaluate, it is the psychological equivalent of whiplash.

Whiplash is notoriously difficult to prove, or disprove. It is a soft tissue injury, not detectable by X-ray, with symptoms ranging from sore neck, headache and dizziness to memory loss, concentration impairment, nervousness/irritability, sleep disturbance, fatigue, and depression with arthritis as a delayed condition, sometimes delayed for many years. This is not to question the reality of whiplash injury, but to point to the difficulty in distinguishing genuine injury from litigious opportunity.

If one types "whiplash" into Google one gets (at the time of writing) a quarter of a million hits, with the first ten being links sponsored by firms offering no-win no-fee services to those seeking compensation. Given the range of qualifying symptoms, these firms would appear to be tapping a vast market. The principal cause of whiplash is a road accident in which one vehicle runs into the back of another. In British Columbia, a Canadian province with a single government automobile insurer, 850 people in 100,000 qualify for compensation for a whiplash injury every year. No statistics exist to distinguish the genuine cases from the lucky chancers. But comparison with other jurisdictions with similar levels of motorization, show that the chances in British Columbia are pretty good: New Zealand has 13 cases per 100,000 a year, Quebec 70, Sweden 250 and Britain 450 [see BC Whiplash Initiative]. This range far exceeds the range in levels of accidents that might cause whiplash injuries, suggesting that toward the top of the range many claims of injury are bogus.

Which brings us to stress. Like whiplash it is real. People can be made ill by it. But people vary enormously in their susceptibility; what for one person is energizing pressure can, for another, be incapacitating stress. And the symptomatology of stress ranges far wider, although with the exceptions of sore neck and arthritis many of the symptoms are the same. Its causes are more numerous and diverse and, because they are rarely physical, straightforward and simple, are more difficult to interpret. Compared to whiplash, the scope for those seeking to convert inadequacy, laziness, disaffection, or job dissatisfaction into cash, is vastly greater.

They now have a significant new ally: Britain's Health and Safety Executive (HSE).

The HSE website proclaims:
about half a million people in the UK experience work-related stress at a level they believe is making them ill;
up to 5 million people in the UK feel "very" or "extremely" stressed by their work.

Beliefs and feelings are undetectable by X-rays or any other scanners available to the National Health Service. The HSE acknowledges that some unnamed academics think that stress is "an almost meaningless term", but settles for: "the adverse reaction people have to excessive pressure or other types of demand placed on them".
Its "key messages on stress" are:
Work-related stress is a serious problem for organisations. Tackling it effectively can result in significant benefits for organisations;
There are things organisations can do to prevent and control work-related stress, and (opening the door to the no-win no-fee entrepreneurs); and
The law requires organisations to take action.

The HSE is Britain's guardian of health and safety at work. Having decided that risk is a serious problem, it threatens all "organizations" with the law if they do not take action to prevent it. It is, at the time of writing, pursuing two parallel courses of action: it is invoking its legal authority to compel an NHS Trust to manage risk better, and it is undertaking public consultations to work out how this might be done.

The HSE's legal authority
On 9 July 2003, following a complaint from a stressed employee of the West Dorset General Hospitals NHS Trust, it served an "Improvement Notice" on the Trust requiring it to:
1) Establish a baseline of current exposure to stressors by reviewing existing organisational data (sickness absence, staff attitude service, exit interviews, etc), supplemented where necessary by collecting additional data. This review should establish:
(a) the extent to which staff perceive stress as a problem
(b) those factors that staff perceive as causing stress
(c) where the patterns of reporting highlight priority areas or issues;
2) Assess the likelihood of employees continuing to be exposed to stressors at a level that could cause harm;
3) Assess the effectiveness of existing controls including managers training;
4) Identify any necessary additional preventative and protective measures; and
5) Record the significant findings of the assessment and make it available to the employees.

In undertaking this work the HSE suggested that the 6 areas of classification should be followed:
1. Demands at work such as work overload, physical work environment;
2. Control amount of say an employee has over the way their work is undertaken;
3. Support for managers and co-workers;
4. Relationships aversive behaviours at work including bullying and harassment;
5. Role lack of clarity in employee role; and
6. Change how well organisational change is managed and communicated.

Failure to comply with this notice carried with it the threat of court action and fines (up to 20,000) under the Health and Safety at Work Act.

The West Dorset General Hospital complied handsomely. It commissioned psychologists from Exeter University to survey its 2500 staff. The survey discovered that staff stress levels did indeed exceed the HSE's draft benchmarks (see below). It also made recommendations, which ran to many pages, and required for their implementation resources that the Trust either did not have, or that would have to be diverted from front-line services.

Public Consultation
At the same time as it was threatening to prosecute the West Dorset General Hospital for its inadequate management of stress the HSE was running a series of consultation exercises on its Draft Standard for Risk Management, which it is committed to formalizing, and will publish, as the Management Standard for Stress on 3 November 2004. Once formally adopted, the legal truncheon with which West Dorset was threatened will become considerably more compelling to a nervous management.

The draft standards, almost certain to be confirmed on 3 November, are called benchmarks (targets on which you can sit?). They stress the importance of the perception of stress on the part of the person who claims to be stressed. There are six standards, the six areas of classification listed above: demands, control, support, relationships, role and change. For the first three the benchmark is 85%, for the second three it is 65%. That is, an organization will be judged to be performing satisfactorily if 85% of its workers feel that the demands of their jobs are not excessive, that they have a satisfactory degree of control over their work, and that they are well supported, and 65% feel that they are not bullied or harassed, that their jobs are clearly defined, and change is clearly communicated.

It is not clear where these numbers came from, but in one of the HSE's consultation exercises the participants were asked if they found them helpful "in deciding whether the state to be achieved has been met." The answer was "Yes, Managers seem to like to have a definite number to measure against."

The state to be achieved
Britain is now a risk-blame-litigation-compensation culture. It is being engulfed by an avalanche of risk assessments. In education, government, commerce and industry every day thousands of people labour over assessments that require them to identify every conceivable risk and its associated "control measure." In my own educational institution my two favourites, to be found in our 69 page guide to risk assessment, are:
Risk: "slips trips and falls" - and the associated control measure: "ensure you can see where you are putting your feet before walking."
Risk: "injury caused by boundary fences" - and the associated control measure: "if working close to fences etc. avoid working with your back to the fence in case you back into it."

The fear of being held accountable for other people's stupidity, or for failing to make that part of the world for which you might be held responsible both fail-safe and fool-proof, is not only suffocating enterprise, but driving out of existence a wide range of activities from school trips and sports to volunteers providing home made cakes for village fetes. So far as I am aware the number of successful prosecutions for cake-poisoning is reassuringly small zero. It is the fear of prosecution, not actual prosecution, that in our paranoid risk-averse culture is doing the damage.

To all of this risk assessment the HSE now proposes to add stress assessments, requiring "organizations" to demonstrate their formalized sensitivity to anything in the work environment that might make 15% (or 35%) of employees perceive that they are stressed.

Stress is real. It can incapacitate. It can cause nervous breakdowns. What causes stress? According to numerous surveys the four most stressful events in life are: death of a loved one, divorce, buying or selling a house, and marriage. Imagine you are a sensitive, caring manager of an under-funded, under-pressure A&E department with a bereaved member of staff who is recently divorced, getting remarried and moving house. You will probably try to ease the work burden on this distressed person and re-allocate it to other, already over-stretched members of your staff. You will find the task stressful, and compounded by the need to fill in the stress assessments to demonstrate that you have exercised your duty of care, as required by the Health and Safety Executive.

Imagine next that another of your staff is simply not up to the job, and finding life a struggle and resenting you for being too demanding. And then try typing "stress" and "no win no fee" into Google to discover how many people this sad person has vying for the job of demonstrating that it is your fault. More stressful.

The Improvement Notice that the HSE served on the West Dorset General Hospital was numbered 006638 the two zeros at the front of this reference number suggest that the HSE sees its work, as just beginning. The work, and stress, that it will impose on recipients of its notices, and the far greater number striving to avoid them, are also just beginning.

John Adams is emeritus professor of geography at University College London.

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I am a lawyer working for claimants, I used to act on behalf of Defendants. I see that whilst denying that you are not suggesting that whiplash or stress occur, you go on to berate the HSE for doing their job. As I recall they had many complaints from staff at this trust before feeling forced to act I suggest that you would prefer to return to the old days when employers could treat staff badly without fear of sanction. Regarding whiplash I note that you use the Insurance Industries old chesnut that most of the pain & suffering is litigation induced, but they would say that wouldn't they. I would remind you that these are the same companies that have been found guilty of serious mis-selling on a massive scale & desperate to save money they are trying to reduce compensation to the victims. I should like you to note that the Compensation Culture does NOT exist as has been recently proven by independant research. Claims are at there lowest for years. The sums paid in compensation are there lowest The press ignored or made little mention of this fact & don't expect the AIB to mention it. May I suggest instead of attacking the victims. You look at some of the spurious arguments put forward by the Insurance industry to avoid paying compensation. & they way they add to the stress by delaying settlements as long as possible hoping that the victim will eventually settle for a lower sum.

Posted by: John Scott at December 1, 2004 10:46 AM

How interesting, John Scott, that you are a lawyer for claimants. Not at all a distorted and protective view, then.

Good article Mr Adams. I'm doing an essay on work psychology, specifically stress as we speak. It is an interesting subject, if not just for the pure subjectivity of 'stress' and the fact that its discourse has become engrained culturally (from a social constructionist perspective).

Anyway, best get on. Very useful, well written and so on.. Thanks. :)

Posted by: Ghostboy at January 23, 2007 12:04 AM
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