Mental Health Awareness Week has put workplace wellbeing back in the headlines and the measures employers are taking to support their staff. Our employment solicitor Clare Thomas explains how mental health can be managed and what legal obligations employers must meet under the Equality Act 2010.
One in four of us will experience mental ill health at some point in our lives according to the Department of Health, which means it’s essential for employers to have a strategy in place to identify and support those staff who may need extra help.
Stress and mental health in the workplace
Stress is the “adverse reaction people have to excessive pressures or other types of demand placed on them”. Stress is not an illness, but can lead to conditions such as anxiety and depression which can then in turn cause physical problems, such as heart disease, back pain and skin conditions.
According to ACAS, the most common forms of mental ill health are anxiety, depression, phobic anxiety disorders and obsessive-compulsive disorders. In some cases, these conditions may amount to a disability.
Reducing work-related stress and handling mental health issues correctly have many benefits to both the employee and business. It will reduce absence levels, improve overall performance and boosts morale.
Failure to do so could lead to a breakdown in employee relations and also result in potentially very costly claims against the business.
As awareness of mental health is growing, employees are more willing to recognise they may need help and come forward to raise issues. While this can be helpful to employers as managing mental health positively improves performance and conduct, it is resulting in an increase in situations where managers need advice and the skills to respond to mental health issues.
As an employer there is a continual balance to be struck between those who are genuinely ill and require support, and staff who use mental health issues as a means to manipulate their employer. Identifying the distinction between the two can be difficult without penalising those who are genuine or allowing employees who are exploiting the situation to take advantage.
Under the current practices mental health/stress issues at work are processed in a similar fashion to other sickness absence, however the reality is mental health issues involve complex considerations. Most employees recover but it can take time, and in the meantime businesses need to manage the impact any absences have when the length of time that is needed away from work is difficult to determine or predict.
How should mental health and stress in the workplace be handled?
ACAS advises the following approach when dealing with mental health and stress in the workplace:
• Keeping an open mind
• Learning the facts about the relevant condition
• Being flexible
• Seeking expert advice and guidance
• Listening to the employee
It is important that employers are alert to any changes in employees as this can be an indication of mental health/stress issues and should be explored and handled accordingly.
What does the law say?
Employers have a common law duty to take reasonable care of the safety of their employees and to provide them with a safe place of work and a safe system of working, which can include conducting appropriate risk assessments and reacting to mitigate any harm being caused to employees within the workplace.
As mental health issues can amount to a disability within the definition of disability discrimination law, employers also need to comply with duties to make reasonable adjustments and not to discriminate against an employee with a disability. It is worth noting that employees require no minimum length of service to be protected from discrimination.
Once employees have two years’ service they are also protected from unfair dismissal, therefore, any processes which result in dismissal must be fair and reasonable under the circumstances. Generally, it is considered good practice to use the same procedures in respect of all employees regardless of length of service. Employees with less than two years’ service can in some circumstances bring claims for unfair dismissal, and fair procedures mitigate the risk of discrimination claims.
Finally, it is important to preserve the trust and confidence in the employment relationship. If insufficient support is provided this can lead to a breakdown within the relationship and result in a constructive dismissal claim, whereby an employee resigns in response to a breach in trust and confidence and brings a claim for unfair dismissal.
An employee can receive an uncapped amount of compensation if a discrimination claim is successful, in addition to awards for injury to feelings. Compensation in unfair dismissal claims is capped at approximately 1 year’s salary (up to a maximum currently of £83,682), in addition to receiving a basic award.
Advice for employers
On each occasion of absences/issues which are potentially as a result of mental health/stress issues, take a step back and evaluate what has happened and why before deciding on the course of action. For example, poor performance/conduct issues should not always be dealt with as such where they are a result of mental health issues.
The key to any mental health process is to maintain a dialogue with employees during these times and take a proactive approach to their management, as this is often central to their recovery and prevents a matter from growing bigger or never being resolved. As part of this employers should regularly review their workplace procedures to ensure they meet the needs of the employee, while allowing you to manage your business effectively during any periods of absence.
Large employers including ScotRail, are addressing the issue of workplace mental health head on by providing their staff with mental health first aid training which helps employees identify people who may require help and guide them towards support services. There are now calls for the NHS accredited training to become made mandatory in the workplace. For more information see https://mhfaengland.org/