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Mental health in the workplace
May 30, 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.  

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