Redundancy announcements are depressingly regular in the current economic climate and it is natural for employers to be primarily concerned with those losing their jobs. Organisations often provide time off to look for alternative work and access to outplacement services for these employees.

But neglecting those who have made it through a reorganisation poses its own risks. Although they still have their jobs, the “survivors” of redundancy may experience greater pressures owing to changed work patterns and increased workloads. Morale may dip, too, if employees have lost good colleagues. This kind of “survivor syndrome” may be cultivated by businesses accidentally.

Employers could be exposed to a range of possible stress-related claims if they fail to manage the aftermath of a redundancy process properly. According to the Health and Safety Executive, 13.8 million working days were lost to work-related stress, depression and anxiety last year. It is widely accepted that work-related stress can be triggered by change: the HSE lists it as a key factor. A redundancy process is one of the most obvious examples of large-scale workplace change, and failure to manage employees’ workloads or work patterns post-redundancy could cause them to suffer high levels of stress.

What claims could redundancy ‘survivors’ make?
Stress-related personal injury claims are a possibility. Employers have a common law duty to take reasonable care for employees’ health and safety in the workplace. They have a statutory duty to assess the risk to their employees of stress-related ill-health arising from work and to take measures to control that risk (the Management of Health and Safety at Work Regulations 1999 and the Health and Safety at Work Act 1974). They should also consider the HSE’s “management standards” – these are statements of good practice designed to assist employers in tackling stress.

For employees, the legal tests in such a claim present a high hurdle. To be successful, employees have to prove:
- the employer breached its duty of care towards them;
- they suffered personal injury as a result of this breach; 
- their injury was a “reasonably foreseeable” outcome of the employer’s treatment.

According to the landmark stress case, Sutherland v Hatton (2002 IRLR 263 CA), no occupation, however stressful, can be regarded as intrinsically dangerous to mental health. Successful cases to date have tended to feature employees who have been exposed to excessive workloads with limited or indifferent line management, and had to take time off work for stress-related illnesses before the onset of serious psychiatric injury. In other words, there were trigger points along the way that should have alerted employers to the potential injury. Employer liability arises from the harm to the employee being foreseeable.

Why might disability claims increase after redundancies?
Employers may have exercised considerable care in ensuring redundancy selection criteria does not breach obligations under the Disability Discrimination Act 1995 (DDA), but this needs to be followed through in the post-redundancy environment. They may face more DDA claims if working conditions in a reduced workforce make employees’ existing medical conditions worse. Pre-existing medical conditions, both mental and physical, are more likely to meet two of the requirements in the statutory definition of disability – that the condition needs to be both substantial and long term.

Failure to identify that this is happening and, crucially, consider whether reasonable adjustments should be made will lead to a greater risk of disability discrimination claims, which are not covered by employers’ liability insurance, instead of personal injury claims, which are covered.

Employers need to monitor employees’ workloads and duties in a post-redundancy context, in order to avoid replacing a selection-based DDA claim with a “failure to make reasonable adjustments” claim.

Top tips to avoid claims
- Proper communication with all staff during the redundancy consultation process is an important starter to easing anxiety. 
- Train managers to look for signs of stress and ensure they have the skills to manage the remaining employees in a supportive manner throughout the reorganisation period. 
- Carry out regular assessments focusing on the risk of staff developing stress-related illnesses as a result of their work. The HSE website provides detailed guidance on this.
- Monitor absences closely and use occupational health input.
- Consider what retraining needs employees will have after a reorganisation. Remember some will be doing a new job and may require a transition period before they become fully effective. 
- Have a “survivors’ strategy” in place. Line management should have regular discussions with staff to ensure they feel supported in their new roles or new reporting structures.