In the last survey carried out on European workers some 15 years ago, 57% of those questioned said that they felt that work had affected their health. In particular they highlighted musculo-skeletal problems and stress as being the dominant issues they had faced. Of the survey's respondents, 23% had been absent in the previous year for four days. In total 600 million working days had been lost.
From an employee's perspective, work is a dangerous place; you can get ill and injured. For employers, there are also dangers. An increasing number of non-injury litigation suits are being pursued both in the US and the UK as discrimination and other laws make their effects fully felt.
In this article we consider several things. Firstly we consider a model which addresses injury or illness at work and the related compensation issues. Secondly we consider one of the emerging health and safety issues, stress, though it could be said that it was known some years ago. Finally we offer a few thoughts on the future for employment liabilities.
In terms of employment or employers' liabilities, classically these have been seen as liabilities arising out of injury or accident to employees. There are probably two dominant models which have emerged; the tortious liability enshrouded in the UK in common law, and the workers' compensation programmes that developed in the US at the turn of the last century. These offer, in effect, no fault compensation for claims which are compensatory. There are still investigative steps in workers' compensation but there are not the debates over contributory negligence and the like which are seen within the tortious systems. Between these two systems there are found a number of state provision systems. In this context, a third model could be considered, sickness absence, a not untypical European way of dealing with these problems and dealt with by the respective national health services.
If we look across the globe we can see that in Hong Kong the employees' compensation model is favoured. Europe, which at first glance has a common approach to employers' liability issues by way of the management of Health & Safety at Work Regulations and similar enacted statutes, seemed to have systems varying between strict liability within tortious systems as seen in Denmark, social protection as seen in France, employee-based insurance associations in Germany and industry-specific funds in Greece. Interestingly, South Africa follows a very similar model to Greek practices by affording industry-specific workers' compensation programmes. In Holland there is an ‘all or nothing' liability approach whereby if an employer is shown to have breached regulations or failed to offer safe systems at work, a liability will attach. In Norway, workers' compensation is provided partly by the state and partly by insurers. Portugal requires mandatory insurance whilst Spain looks at civil damages being available and care being offered via a social security system. Sweden, which perhaps has the most comprehensive European programme, offers an insurance-based system but damages that are available parallel those of the UK.
In all cases the question is, should the claimant be compensated by cash or by care? In the past in the UK, there has been a keen focus on cash being available for injury claims and this is encouraged by a number of the new plaintiff practitioners entering the market. Similar practices have existed even within the workers' compensation programmes around the globe. Whether this is the right answer for the employee is debatable. There is a growing view that rehabilitation, that is to say helping the employee get back to work promptly and effectively, is a better solution. However, whilst no-one disputes the quality of medical care offered following an injury, the question is one of gaining an early intervention so that there can be a valuation of the case and proper planning as to the right approach to dealing with the particular injury or disability by adopting the right treatment protocol. This process is generally called triage.
Timely and thorough contacts are key components that make a successful accident management programme.
Whilst it will not be disputed that benefits and damages are payable in many circumstances, the key to success both for the employer and the employee is developing a working relationship with a case manager which can lead to common goals being set and implemented, with return to active work perhaps as the dominant priority. Thus, whatever system of compensation exists, a vital element for success is to ensure that prolonged and unnecessary treatments are avoided by building a trusting and co-operative relationship with the injured employee and the medical provider. The injured worker must understand that the case manager is concerned with their well-being and in this way medical management and cost containment are both achieved, as well as success for the injured party.
If we look at this in the context of stress, one of the key features we have seen is that there are fewer returns to work in stress cases. Stress management programmes are in many respects in their early stages but the benefit of evaluating the risks of stress in the same way that other health and safety issues have been scrutinised must be considerable.
Stress is admitted as a legitimate workers' compensation claim throughout the majority of the US states, although in 1999 it looked as though Virginia and Washington had some reservations about this. What drives stress, of course, is a variety of internal and extraneous factors. The sources of stress intrinsic to the job may have bearings on an individual's role in the organisation, their relationships at work and career development within the organisational environment. Issues such as the home/work interface can also have profound impact on an individual. Certainly if you have had difficulty sleeping, lost your appetite or have difficulty concentrating, let alone have a low opinion of yourself, then clearly if those symptoms have been evident in the last three months there are possibilities that you are under stress. Organisational symptoms of stress include high absenteeism, high labour turnover and industrial relationship difficulties, not to mention critically poor quality control. Stress is an issue that is not going to go away.
There are many who tried to dismiss stress on the basis that it is merely an inevitable part of modern culture. Culturally the world has changed and the world of work has changed with it. To date, most of the examinations of stress that have been carried out consider white-collar workers, though experience indicates that blue-collar workers are suffering from the same pressures as businesses restructure, realign or reengineer.
Many blue-collar workers find themselves operating computers and VDU screens as part of their day-to-day handling of goods. Looking globally, stress claims have been admitted in the majority of European and Far Eastern countries. Whilst at the moment there is no avalanche of claims, there are enough claims to give concern.
Looking to the future, we anticipate that there may well be more back injuries seen amongst white-collar workers. Poor workstations and the fact that more of us operate computer workstations can inevitably lead to lower back pains and ongoing injuries. Beyond the world of injury, discrimination legislation has been introduced throughout the globe and is now seeing employees conducting lawsuits for both racial and sexual discrimination. The City of London has seen a number of cases, particularly from women whose careers have been discriminated against. The need for every employer to be clear on their practices to thoroughly monitor and re-evaluate their practices is a key element here.
In conclusion, we believe that there is an increasing view that compensation by cash does not necessarily assist the employee in all cases. Clearly in discrimination cases it may well be the only solution available. However, in injury cases, prompt triage coupled with rehabilitation to find the right solution for each accident offers the chance to develop customised care for each situation and help the employee back to work. That must surely be an aim for all employers. Jonathan Clark is Director of Strategic Operations Development for the UK, Europe and Africa, and Asia with Crawford & Company.
Deborah Edwards is International Healthcare Specialist atCrawford & Company.