May 1, 2022 - Burley Law
Skip to main content

Month: May 2022

Mental Health & the Workplace: Legal considerations for employers & employees

Written by Reccy Midigo

During Mental Health Awareness month, many employees posted on LinkedIn about struggling with their mental health.  While everyone’s experience is different, a common theme in these LinkedIn posts was how work-related stress was a significant contributor to the decline of people’s mental health. This is not surprising. A Chartered Institute of Personnel and Development (CIPD) Absence Management survey reported that stress leading to mental health and personal issues is often caused by workload, work relationships, and workplace management style. The following article examines why work often causes mental health issues, how employers can address these issues, and the reasons why addressing mental health in the workplace is beneficial for both employers and employees. 

What is mental health?

The first step to addressing mental health issues in the workplace, is understanding what mental health is. 

While there are numerous definitions for mental health, Acas defines it as : ‘our emotional, psychological and social wellbeing’ which ‘affects how we think, feel and act and how we cope with the normal pressures of everyday life.’ Mental health is often affected by stress, which is defined by HSE as ‘the adverse reaction people have to excessive pressures or other types of demand placed on them’.  When a person experiences too much stress, this often leads to mental health issues.  Mental Health issues can become a disability recognised by law if they are sufficiently serious and long term and  create a mental  impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day to day activities (Section 6(1) of the Equality Act (EqA) 2010).  

Why is mental health a common issue in the workplace? 

The short answer is that mental health and wellbeing is not prioritised by businesses. In a 2019 study conducted by CIPD, only 1 in 10 organisations in the UK have a stand-alone Mental Health Policy for their employees and less than 50% of employers offer Mental Health Training. This is alarming given that around 30% of workers in the UK have had a formally diagnosed mental illness in their lifetime. This statistic does not account for those who suffer with mental health issues but have not received a formal diagnosis. 

Even for the few businesses that do provide mental health resources, mental health remains a key issue. This may be due to employers failing to provide a supportive and inclusive work culture where people struggling with their mental health feel comfortable coming forward about their mental health issues or concerns.  This can often lead to employees feeling isolated and disengaged, going off sick and even quitting their jobs.

Now more than ever, employees are looking for supportive workplaces where mental wellbeing is seen as a priority, not just in words but in actions too. 

How can employers address issues of mental health in the workplace?

The first and most important step to addressing mental health in the workplace is creating a safe and inclusive work culture in which employees feel safe and free to share that they are struggling with their mental health.  While employees are responsible for disclosing their mental health issues or mental illness if it affects their ability to work, employers are equally as responsible for ensuring that they do not contribute to or cause mental health issues for their employees. 

Mental health should be a focus for employers even at the recruitment stage. If a job seeker or employee has a mental health disability, they are protected from discrimination under the Equality Act (EqA) 2010. Section 60 of the EqA 2010 prevents employers from asking job applicants and recruits about their health unless it is central to the work being carried out. This includes asking questions relating to previous sickness absence because of a disability or health issue (EHRC Code para 10.5). Section 13 of the EqA 2010 prevents employers from engaging in direct discrimination (e.g., firing someone because they have a mental health disability) while Sections 19 EqA 2010 prevents employers from engaging in indirect discrimination against their employees (e.g., preventing staff from working part-time hours, resulting in a working parent being unable to care for their children). 

It is important for employers to understand that they have a duty to support employees who are suffering with their mental health. Section 20 and Schedule 8 of the EqA 2010  requires employers who become aware that an employee has a mental health disability to make reasonable adjustments so that the employee has the support they need to perform their job. This can include: 

  • Assigning the employee to a new role
  • Different work hours
  • Change in place of work or hybrid working
  • Modifying procedures (e.g., grievance, disciplinary etc.)
  • Alternative employment
  • Sickness absence with sick pay
  • Helping an employee stay or return to work 

While the law only requires these kinds of adjustments to be considered for a mental health disability, the best employers will be prepared to consider them for all employees whose mental health is impacted in some way.  Figuring out the best way to assist an employee with a mental health disability is often quite difficult, and that it is why it is important to work with HR, Occupational Health, and mental health service providers to implement effective mental health support and resources in the workplace. A great place to start is Altruists 2020 Guide to Developing an Effective Workplace Mental Health being Strategy.

However, equally important is speaking with an employment lawyer, to ensure that your work policies and procedures are in line with employment law.  This can be as simple as ensuring that you have a Mental Health Policy in your Company Handbook.  It can also include making sure that management are aware of the legal obligations regarding health and safety and making it an integral part of staff training and regular company audits. By taking these steps, you can help ensure that your employees receive the support and resources they need when they experience mental health issues. 

Why should employers address issues of mental health in the workplace?

The first and most important reason why employers need to address mental health issues in the workplace is that employers have a legal duty to ensure the health and safety of their workforce. This includes the mental wellbeing of their staff. The key pieces of legislation which deal with mental health in the workplace are: 

Failing to address issues of mental health can lead to claims being brought by employees in the tort of negligence, or claims being brought to the Employment Tribunal. Not only are legal disputes a time-consuming process, but they often lead to huge financial costs for businesses such as paying legal fees and damages if the employee wins their claim.  

An example of this is the case of Dickens v O2 Plc in which Ms. Dickens, an employee of O2 Plc, was awarded £110,000 in damages because her employer did not address her mental health issues when she disclosed that she was ‘at the end of her tether’ because of the stress of work, and warned her employer that she did not know how long she could carry on . Relying on Sutherland v Hattonthe employer argued that because they offered their employees a confidential advice service which could refer employees for counselling and other assistance, they had not breached their duty to Ms. Dickens. However, the court dismissed this argument. They explained that in cases where an employee has severe symptoms caused by stress at work and warns their employer that they do not know how long they can carry on, offering the employee counselling is not a sufficient response. This demonstrates that employers need to provide resources and support that adequately address the degree of a mental health illness or crisis their employee is experiencing. 

Other than avoiding legal disputes with employees, there are many other reasons why addressing mental health is important for businesses. Altruist, which is a company that provides mental health training and resources in workplaces and schools, have found that the benefits of implementing mental health measures include: 

  • Less absence from work: Mental illness is one of the top 3 causes of short-term absence in the workplace and often leads to long term absence. 
  • Retention of staff: Around 300,000 people with long-term mental health problems lose their jobs each year. According to an Oxford Economics study, the average cost of replacing a staff member is £30,614 per year. 
  • Decrease in financial loss to the business: Mental Health related presenteeism costs employers around £4,058 per employee per year and absenteeism costs employers around £522 per employee per year. 
  • Better staff performance: Managing mental health leads to improved engagement and reduced costs. Research shows that when employees have resources and support, they outperform their targets by 17%.

Addressing mental health issues in the workplace is not an easy or straightforward process because mental health issues are not always obvious or visible. However, employers must take the necessary steps to ensure the physical and mental wellbeing of their staff. As discussed, this should start with offering mental health resources and support which those who are struggling with mental health issues can easily access. Employers should then do their best to make reasonable adjustments for employees with mental illnesses or disabilities – what is reasonable will depend on the nature and impact of the illness. Doing so not only protects the business from time consuming and costly legal battles but also decreases absences while improving staff performance, engagement and staff retention.  This goes to show that when you invest in the wellbeing of your employees, you are also investing the wellbeing of your business. 

If you would like to learn more about how you can address issues of mental health in your workplace, feel free to get in touch with our Employment Law & HR specialist, Liz Burley.  

Mental health awareness week

This week marks Mental Health Awareness week. With an awareness of mental health rapidly increasing in the workplace, it is important for employers to understand their legal duties in relation to the mental health of their employees and workers.

How is Mental Health legally defined?

Mental health does not have a legal definition but ACAS defines it as “our emotional, psychological and social wellbeing; it affects how we think, feel and act and how we cope with the normal pressures of everyday life”

A mental health impairment could command the legal status of a disability the Equality Act 2010 (EQA 2010) if it has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. 

This definition is broad and can cover a wide range of impairments relating to mental functioning including clinical depression as well as neurodiverse conditions such as bipolar disorder, autism and ADHD.

What are the legal protections at work under the EQA?

Employees and workers with a mental health condition which meets the legal definition of disability are protected from discrimination (in other words less favourable treatment) in the workplace and employers are under a positive duty to make “reasonable adjustments” for them in certain circumstances. This could include adjustments to their workload, hours of work, or working environment.

It is important for employees and workers to understand their legal rights in relation to mental health so that they can receive appropriate support from their employer in managing a disability in the workplace.

It is equally important for employers to understand what constitutes a mental health disability and what support they may be required by law to provide for an employee or worker who has a diagnosed mental health impairment or neurodiverse condition.

Are other legal protections available for mental health?

Employers are under a general legal duty to look after the health and safety of all of their employees and this includes their mental health. Exposing an employee to excessive workload or stress can cause injury to mental health for which an employer could be held legally liable.

While many employees often focus on the psychical health and safety of their staff, mental health can be neglected at significant cost to both the employer and the employee.

For more information on mental health and how it affects employers and employees, stay tuned to our page. We will be posting some helpful information and resources this week for employers and employees who want to learn about how mental health affects the workplace.

My experience at Burley Law

In March I reached the six months mark here at Burley Law and this blog will reflect on my experience working as a paralegal, with no prior legal work experience and straight out of university.  Whilst a law degree teaches you the fundamentals of contracts, land law and crime etc, the experience you gain working within a business makes you realise how much you didn’t know.  If you’re looking to start your legal career or contemplating about whether a law degree is for you, hopefully this blog will help in some way. 

At 17 when I applied for my law degree, I was under the impression that it would be pretty straightforward: do three years at university, get my degree, and get a job in a law firm.  However, a substantial thing I forgot about was my naivety, and this is a common thing amongst undergraduates and even postgraduates like myself. 

So, how do you make your vision of working in the legal industry a reality?  There are many routes you could take but here’s what I did… 

I started working at Burley Law as an intern, a couple months after finishing university and jumped at the opportunity to get some actual legal work experience.  I had done pro bono work, worked as a Retail Assistant and even did online work experience throughout COVID. Although these opportunities only helped build on my soft skills like teamwork and communication, I’d recommend that you showcase these when applying for jobs if you have minimal to no legal work experience as they are really important in helping get your foot in the door.  

My internship lasted a month and I learnt so much in that time like how to respond to clients, what intellectual property a business should protect and how to draft an NDA, amongst other things.  One essential skill that quickly strengthened was my commercial awareness.  Whilst Googling how to become commercially aware is a good start, I found I only really started to develop this when working within a commercial environment.  Being constantly aware of what is happening in the commercial world and how this affects the legal industry, increases your commercial awareness.  This is definitely a skill that builds over time, and you shouldn’t worry if you don’t feel confident with this because it will come naturally when you start working. 

I have also found that my legal knowledge has expanded, when I started I had only touched upon IP throughout my degree and was anxious that I would be completely useless at work.  And yes, imposter syndrome was a very real feeling for me when I started – and  sometimes even now – but that’s natural when you start an entry level role and it does fade away over time!  Had you asked me 7 months ago to draft a specification for a trade mark or review an NDA, I would have panicked and not known what to do.  But ask me today and I can do it, with (some) confidence too.  Getting a job is a learning process and I have definitely learnt so much about IP and employment law, it does take a couple of months to become familiar with things but once you’ve worked for six months you will be amazed at how far you’ve come. It helps to keep a journal of what you are working on day by day so you can look back on everything you’ve done.

When I started at Burley Law I wasn’t sure what working in a law firm would be like.  My expectations were based on watching Suits and the only thing I had, unlike Mike Ross, was my law degree.  It’s fair to say no two days are the same here, I could be working on an introducer agreement one day and organising meetings the next.  At Burley Law we all get involved in every aspect of the business, and you work on so much more than just legal work – getting stuck in is what we do!  I have thoroughly enjoy working at Burley Law, my colleagues are amazing, the work is interesting and most importantly I look forward to coming into work. 

If you’re starting out in the legal world or choosing if Law is what you’d like to study, I would definitely go in with an open mind.  Law firms aren’t the same everywhere, and your experience at one might be completely different to working at another.  You should definitely research the firm, their work culture and values, what your role will consist of and career development opportunities.  Starting your first professional job is always daunting and it’s okay to feel anxious at first – the nerves and apprehension will begin to fade after your first week.  Just remember to have faith in yourself, trust the process and give yourself time to settle in, you will soon be in my shoes and looking back at how far you’ve come.