Legal

Employers’ legal obligations around good mental health at work

8 Jul 2019 By Mark Hamilton and Emily Shaw

Mark Hamilton and Emily Shaw examine the legal role of employers in managing mental ill-health in the workplace

In last year’s survey of more than 44,000 employees by mental health charity Mind, only half of those who experienced poor mental health had talked to their employer about it. A recent report by the Mental Health Foundation meanwhile, estimated that 70 million workdays are lost in the UK each year due to mental ill-health. 

Despite the overwhelming evidence that mental ill-health is a widespread and costly issue, the stigma that still surrounds it often prevents employees who are struggling with mental illness from seeking support. Employers have an important role to play in supporting those with mental health issues and understanding how to prevent and address mental ill-health caused or exacerbated by work. 

Making adjustments 

Mental health issues do not just affect individual employees; there are wider implications for employers too. Employees who suffer from poor mental health may be unable to attend work or may not be as productive as they could be. This costs the business money and puts pressure on the other members of their team. Employees who aren't supported may also leave their employment, leading to an increase in staff turnover. 

If an employee’s poor mental health amounts to a disability, an employer must make reasonable adjustments if the employee is put at a substantial disadvantage compared with others in the workplace. When this duty arises, the employer should take reasonable steps to remove, reduce or prevent obstacles faced by a disabled worker. 

This duty begins when the employer knows or ought reasonably to know that the individual is disabled and is likely to be placed at a substantial disadvantage because of their disability. This question of whether the employer knows or ought reasonably to know that an individual is disabled can be problematic in the context of mental health conditions as such workers are less likely to confide in their employer than those suffering from a physical condition. 

In Lamb v The Garrard Academy, the Employment Appeal Tribunal (EAT) concluded that what amounts to reasonable diligence in discovering disability status is fact-dependent and can change over time. Employers should, therefore, reflect on all relevant information to decide whether to obtain occupational health advice at an early stage and review this decision as time progresses. 

Adjustments are only required where they are reasonable: they should be effective at removing or minimising the disadvantage without being too disruptive, costly or impractical for the employer. What is considered reasonable is fact-specific, but the Equality and Human Rights Commission's Code of Practice lists factors such as the extent to which the adjustment will ameliorate the disadvantage, whether the adjustment is practicable, and the financial costs of making the adjustment in the context of the resources and size of the employer. 

Managing stress at work

According to the Health and Safety Executive, in 2015/16 more than 480,000 people in the UK reported that work-related stress was making them ill. This amounts to nearly 40 per cent of all work-related illness. A YouGov poll year published by Acas in May, meanwhile, found that two-thirds of those surveyed had felt stressed and/or anxious about work in the past 12 months and only 8 per cent said their organisation was ‘very good’ at preventing employees from feeling stressed and/or anxious about work. 

It is clear that, in addition to making adjustments for those who face substantial disadvantages because of a mental health condition, employers should understand how to strike the right balance between challenging their employees to ensure their development and putting them under too much pressure. 

Employers who fail to deal with stress appropriately may face personal injury, discrimination or unfair or constructive dismissal claims from employees complaining of work-related stress, in addition to incurring the costs of stress-related lost productivity and absence. To avoid this, employers should conduct stress audits with their employees and train managers to recognise situations likely to cause stress, identify its symptoms and manage it effectively. It may also be useful to implement a stress at work policy, and continually identify (and address) any underlying stress-related reasons for absence or poor performance with individual employees.  

Any employer who creates a working environment which supports the psychological health of all employees will reap the rewards. Employers should go beyond a 'reactive' approach to individual cases of mental health related absences. They could put in place simple measures to improve and prioritise the mental wellbeing of their employees and build a culture of support. 

Senior managers should understand the importance of mental health. Policies and procedures should be reviewed to ensure they can provide support to those with mental health conditions. Line managers should be encouraged to spend time with their teams and have regular catch up sessions. 

Ultimately, employers must foster a culture where the psychological health of employees is a priority and the taboo around mental health is lifted in order to overcome this issue. 

Mark Hamilton is a partner and Emily Shaw a trainee at Dentons

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