Where’s the harm in that? How we think about workplace hazards hampers the application of health and safety law

Current thinking about workplace problems, mental health and the law is hindering New Zealand’s ability to prevent job-related mental harm.

The inclusion of mental health in New Zealand’s Health and Safety at Work Act (HSWA) is meant to protect workers from the risk of harm arising from exposure to workplace psychosocial hazards.

These arise from the way work is designed, managed and led, and the context in which work is carried out. They can cause psychological, social or physical harm. Common examples include long work hours, role ambiguity, emotional demands, job insecurity and bullying.

Our research examined how the most senior company decision-makers understood their legal duties as they relate to mental health.

Under the HSWA, these officers - including company directors and chief executives - must exercise due diligence to ensure their company is compliant with the law.

But most of the 24 research participants, who were officers of large companies, expressed uncertainty and ambiguity about the meaning of “mental health” within the HSWA.

The harms of work

Exposure to psychosocial hazards is commonly reported by New Zealand workers.

Those working in jobs such as policing, nursing and teaching, for example, report high levels of emotional demands.

Māori and Pacific workers, workers in retail, and workers in their 30s report higher than average levels of job insecurity.

The harm caused by exposure to these these hazards typically presents as psychological. But it has also been strongly linked to cardiovascular disease and musculoskeletal disorders.

Lack of expertise

Managerial decisions relating to how work is designed, organised and managed influence how people experience work and the psychosocial hazards they may face.

Psychosocial risk often stems from operational and performance decisions relating to things like intensification, staffing, production and market demands.

In many organisations, these decisions are made in the boardroom – far removed from where the core work of the business is carried out.

Many of the research participants felt the uncertainty about the meaning of mental health within the HSWA arose from a lack of expertise in New Zealand’s health and safety workforce, a lack of clear regulatory guidance, and the complexity of psychosocial risk.

As one participant said:

There’s no boundaries, there’s no playbook, there’s no formula they can follow, it’s hard and it’s complex and it’s different for each person, and there’s nobody who you can point to and go, “They’ve absolutely nailed it”.

But our analysis also found that uncertainty and ambiguity arose from other factors.

These included a belief that the risk of exposure was often rooted in the personal characteristics and behaviours of workers rather than in their work. There was also a focus on fixing harm rather than preventing it and the conflation of psychosocial risks with other risks.

Unfortunately, these beliefs also limited the application of the HSWA.

Instead of addressing work-related risk, senior managers became distracted by workers’ personal lives and focused on reactive management strategies rather than preventative ones. They adopted an approach to risk management that emphasised “risks to the organisation” rather than “risks to workers”.

Bullying in the workplace

These limits were most clearly evident when participants described their oversight of organisational responses to bullying and harassment.

Many of the causes of bullying and harassment lie in the way work is organised, managed and led.

However, in detailing their performance of due diligence, participants described ensuring such risks were managed by recounting conflict reporting and resolution systems, support for victims, and organisational policy stressing “zero tolerance” for poor workplace behaviour.

While these responses might form part of a comprehensive approach to bullying and harassment (although in practice these could be unjust, ineffective or even counterproductive), on their own they may also be inadequate when the problem is considered under work health and safety law.

The risk-based, preventative nature of the HSWA requires that harm is prevented through understanding, anticipating and intervening in the contributing factors within the work environment.

Research has firmly established that bullying is more likely in organisations where there are unreasonable workloads, high job demands and job insecurity, along with laissez-faire or “hands off” management, or management strategies that relentlessly require workers do more with less.

Consideration of these risks may be relevant in the current context of job insecurity and job cuts across the public sector which could result in increased demands on remaining workers.

The link between hazards and harm

Risk assessment must focus on what can, and ought to be, known about the relationship between these psychosocial hazards and potential harm. Risk management must aim to eliminate or minimise risks as far as reasonably practicable.

Importantly, acting on risk does not require evidence of harm. Responding to harm once it has happened is contrary to the overall purpose of the HSWA.

But addressing deeper organisational factors is much more difficult and uncomfortable for those in charge.

Preventing bullying and harassment requires considering how decisions about the design, organisation and management of work may contribute to the risk of harm.

Prevention can therefore explicitly question the decisions and practices of company directors, executives and managers – not traditionally considered within the remit of work health and safety.

As a result, bullying and harassment tend to be framed as an interpersonal problem between workers and their managers. This is less challenging than bringing the decisions relating to the management and governance of a company into question.

The preventative focus is then placed on correcting and improving behaviour rather than managing or changing the conditions of work which give rise to bullying and harassment.