France Telecom: lessons for UK employers following 'institutional harassment' ruling

Out-Law Analysis | 16 Jan 2020 | 10:50 am | 2 min. read

Employers in the UK should take note of a recent landmark ruling in France when it comes to ensuring the mental health of its employees.

Mental health and wellbeing are seen as a priority in the UK, and continue to be a particular focus of the Health and Safety Executive (HSE).

Former senior executives of France Télécom (now Orange) were given prison sentences and fines at the end of 2019 after being found guilty of 'institutional harassment' and creating a culture of routine workplace bullying which led to a number of suicides at the company. The case is the first time that managers have been held criminally responsible for implementing a general strategy of bullying even if they had not dealt directly with the staff involved. The company itself was also given a multi-million pound fine.

The case was prosecuted under French employment law and the facts were extreme: bullying and harassment were used as tactics by senior management to encourage workers to quit or accept reassignment in conjunction with a restructuring exercise during the 2000s, according to press reports. However, given its continuing focus on workplace ill-health and work-related stress, it cannot be long before the HSE brings its own first prosecution of an employer for failing to safeguard the mental health of its employees.

Given the priority status of workplace mental health both within HSE and beyond, it may well only be a matter of time before we see a prosecution before the courts [in the UK].

It has been almost four years since the HSE made improvement of high levels of workplace ill health one of the cornerstones of its five-year 'Helping Great Britain Work Well' strategy after identifying continuing high levels as an area of concern. This was later emphasised by its 'Go Home Healthy' campaign and in relevant sector and health priority plans. Most recently, HSE repeated its commitment in its business plan for 2019-20 (32-page / 1.34MB PDF), listing a continued focus on tackling ill health as part of the Health and Work programme as one of its priorities for the year.

Of course, change takes time – but improvement has been slow. Figures released late last year (9-page / 387KB PDF) by the HSE show that work-related stress, depression or anxiety are the most commonly reported causes of work-related ill health. Excessive workload is cited as the cause of the stress, depression or anxiety in 44% of these cases.

Employers have a legal duty to assess the risk of work-related stress – defined as "the adverse reaction a person has to excessive pressure or other types of demand placed upon them" - as part of their ongoing obligation to assess the risks arising from hazards at work. Management standards and guidelines have been produced to assist with this process. The 2017 Stevenson/Farmer 'Thriving at Work' report recommended a number of 'core standards' which employers of all sizes can and should put in place. These were designed to help employers to improve the mental health of their workforce and enable individuals with mental health conditions to thrive.

In the UK, employers who breach their health and safety obligations can expect to be investigated and, in appropriate cases, prosecuted. On conviction, fines running into hundreds of thousands or even millions of pounds are becoming commonplace, together with an increasing incidence of immediate custodial sentences for individuals found to be at fault.

The HSE frequently uses targeted inspections in order to drive up standards, and this is no less so in cases involving work-related stress. In September, the regulator issued new guidance stating that it will investigate if it receives "evidence that a number of staff are experiencing work-related stress or stress-related ill health (i.e. that it is not an individual case)". This is a significant marker that the HSE takes its duties in relation to workplace mental health seriously, and expects employers to do the same.

Organisations found to be at fault can expect enforcement action and, given the priority status of workplace mental health both within HSE and beyond, it may well only be a matter of time before we see a prosecution before the courts here. It would seem that there is the public and political will for such action.

Kevin Bridges, Phil Newton and Fiona Cameron are health and safety law experts at Pinsent Masons, the law firm behind Out-Law.