ISO 45003 – An appropriate new standard or a gross over-simplification

It may well be long overdue, but the global pandemic has certainly created, more now than ever before, an environment and a timely opportunity for the development of a standard focusing on the mental health and psychological and psychosocial wellbeing of staff members. ISO 45001 in 2018 set out the global standard designed to prevent work-related injury and ill health and to provide safe and healthy workplaces. ISO 45003 is designed to build on that giving practical guidance on managing psychological health.

Guidance for ISO 45003 was drawn up in 2019; consultation took place in June to October 2020; the latest draft has just been published, and it is anticipated that the new guidelines will be ready for deployment in June/July 2021 (just in time for the expected en masse return to work after lockdown).

For the first time as a global standard the guidance will address the following:

• i. The identification of conditions, circumstances and workplace demands that have the potential to impair the psychological health and well-being of workers;
• ii. How to identify the primary risk factors and assess them to determine what changes are required to improve the working environment;
• iii. Control measures to manage work-related hazards and manage psychosocial risk within an OH&S management system.

Many commentators seem to be critical that ISO 45003 does not grasp the magnitude of the problem and its approach oversimplifies matters. The current draft seems to suggest that “managers/line managers” should be trained on what to look for, as well as ensuring the proper policies and procedures are in place.

In their response to the (British Standards Institution) BSI’s consultation on ISO 45003 the British Psychological Society noted: “We are concerned that point b infers non-psychological professionals might be used for understanding psychological issues within the workplace. Psychological assessment must always be done by trained and registered psychologists, and must not be passed on to OSH professionals or HR. Neither have the full professional training and experience to fully understand the range of issues linked to psychological health in the workplace. There is a concern that psychosocial risk could be negatively influenced by the wrong intervention, by the wrong person, at the wrong time”.

It is surely a concern that line managers should not be substituted for trained psychological professionals; however, that cannot be the intention.

We are given to understand from HSE statistics for 2019-2020 that half of all workplace related illnesses were caused by stress, anxiety and depression. An HSE report in 2019 covering work-related stress, anxiety and depression in Great Britain stated that 12.8 million working days were lost with 602,000 workers suffering from the condition. Common causes were tight deadlines, too much responsibility and lack of managerial support. It is reported that mental health problems cost the UK economy between £74 billion and £99 billion per year with costs to employers of between £33 billion and £42 billion per year according to the “Thriving at work” report published in 2017.

Those statistics should speak for themselves. Many businesses are struggling to identify and manage mental health issues in the workplace. In that case, any guidance that can be given should be taken and should assist.

The reality is, if employers truly embrace the standard and seek to implement best policies and processes coupled with adequate training and timely refresher training then they will find themselves much better focused and equipped to deal with the current minefield that arises from mental health issues in the workplace. Even if the processes are only designed to identify and monitor risk, manage that risk, make changes to working practices, and when the need arises to have a liaison/referral service for workers to know what internal/external professional help is available for them, that will assist change the culture where required, so as to afford extra protection for the mental welfare of staff in the workplace. That must be welcomed. Going further with robust procedures will not just protect employees, it is commercial in the long run, reducing absenteeism and improving productivity.

However, as with any “guidance” it may become a disaster, if it is only to become a box ticking exercise, or if the training is to become stale.

An analogy with s109(4) Equality Act 2010 and the recent case of Allay (UK) Ltd v Mr S Gehlen: UKEAT/0031/20/AT is worthwhile. When considering the “reasonable steps” defence by an employer in a discrimination claim the EAT recently held that staff equality training had become stale after 20 months without updating or refreshing. The employer’s failure to refresh the training meant it couldn’t rely on the “reasonable steps” defence to a (race) claim.

Employers are vicariously liable for the discriminatory actions of their workers, but they can defend claims where they have taken “all reasonable steps” to prevent the workers from doing such actions. A similar defence is available in whistleblowing claims, where employers can defend vicarious liability claims for the detrimental actions of their workers where they have taken all reasonable steps to prevent the detrimental treatment.

For example, in equality claims, reasonable steps by employers will include:

• having well-drafted equal opportunities and anti-harassment and bullying policies in place;
• ensuring that all workers are made aware of, and understand, those policies;
• providing equality training to workers, with additional training for those with management responsibilities; and
• dealing with complaints efficiently and effectively, including taking appropriate action when required.

The finding by the EAT in Allay makes absolute sense. If training is not updated, fresh and current and then it is/becomes stale. It will be ineffective.

Leaving aside the very obvious potential for claims under health and safety legislation, and the common law of negligence, from workers for personal/psychiatric injury and stress at work claims (where causation and foreseeability will come into play), and potential prosecutions by the HSE, it is also not hard to see how whistleblowing claims related to health and safety disclosures or (disability) discrimination claims could arise with regard to an Employer’s handling of health and safety issues related to psychological wellbeing of an individual, or even workforces as a whole, or an employer’s management of a disability issue arising from long term stress, anxiety or depression at work. If employers do not embrace the new ISO 45003 wholeheartedly, its benefits will be lost. There will be no improvement to the overall mental health and welfare of workers, and no economic benefits. Not only that, but employers are likely to face more claims, of the type set out above, and if they do not commence and keep the training of, quite frankly, currently largely unqualified and untrained managers, fresh and updated, then their ability to rely on any “reasonable steps” defence in whistleblowing or discrimination claims will be diminished.

In the context of whistleblowing it should also be borne in mind that the Government has also recently set down new regulations in the form of The Employment Rights Act 1996 (Protection from Detriment in Health and Safety cases (Amendment) Order 2021 to extend the scope of section 44(1)(d)&(e) of the Employment Rights Act 1996 to cover workers as well as employees. The section, which sets out that an employee (and from 1st May 2021, a worker) can bring a claim in the Employment Tribunal if they are subjected to detriment because they reasonably believed that being at work would place them (or a third party) in danger, was seldomly used before last year but is now becoming and will likely more so become a feature in claims by employees who are anxious about current dangers at work, including travelling to, or being in/at, work during the coronavirus pandemic. Following the guidance of ISO 45003 would assist employers in ensuring that employees/workers did not fear for their safety and would prevent such claims being brought.

This issue of implementation of ISO 45003 should be very much at the forefront of the mind of employers who may well be asking staff who have been working at home, or furloughed, to come back to work, or even those employers who will not ask employees to return to work, but instead to work fully or partially from home; in which case, the home working station becomes the workplace for the purposes of assessment, and in such cases, work, wherever performed by the employee, has every likelihood of contributing to stress, anxiety and/or depression – this may it arise from the solitary nature of the working, the lack of availability of resources, the non-supervision of excessive workload or plain lockdown fatigue. Those returning to their normal place of work may face additional stress related to the additional time taken for their commute, being in a crowded workplace, or at least more crowded that what they had become accustomed to, being subjected to social distancing restrictions which may affect efficiency in progressing work matters, concerns about the effectiveness of the vaccine (on them and their colleagues), their wish to not be vaccinated but yet return to work, new workloads and responsibilities upon return to work – stresses and concerns they may not readily wish to share.

ISO 45003 definitely has great intentions – but whether it achieves the benefits it was designed to (bearing in mind it offers guidance, and is not an accreditation, or a regulation) will very much depend on how robustly employers choose to champion it and develop appropriate and thorough policies and procedures, and how much employees will embrace it and be encouraged by it. Whether it is appropriate and fit for purpose, or overly simplified, success is still possible and will be measured by how much culture change it brings about – to do that everyone, employers and workers need to engage. If it is an over-simplification of a very vast and difficult area of mental health in the workplace, at least it is a start, at a time when it is definitely needed.