Managing mental health in the workplace

8 Jan 2020 By Katie Maguire

Katie Maguire asks what employers’ legal responsibilities are when an employee needs support

Despite recent high-profile campaigns to highlight the importance of mental health awareness – such as World Mental Health Day and Every Mind Matters – many in the UK still suffer in silence. Which means the vast majority of those experiencing mental health issues receive no treatment. 

From an employment perspective, for each employee whose mental health needs are unsupported, this costs their business £1,300 per year. So what can employers do to help? And what are their legal responsibilities here?

Employers duties

Employers have a responsibility to take all steps that are reasonably practicable to ensure their employees’ health, safety and wellbeing. However, often an employer can be unaware that someone is suffering from mental ill-health, as employees have no obligation to disclose this. Coupled with the fact that mental health conditions are not always obvious to those around them, this makes it a difficult area for businesses.

Often it can be a change in mood or behaviour that indicates something is wrong. If a member of staff comes to you and says they are concerned about another employee then action should be taken. The first step is to ask the employee if they are OK. You could consider training a mental health first-aider to recognise the signs and symptoms of common mental health illnesses. 

Many companies provide support to their employees through an employee assistance programme or independent confidential counselling service. We would always advise the employer refer the employee to occupational health to obtain medical advice, and guidance on possible adjustments to support the employee to continue working. Changes to their role could include working from home, flexible start and finish times and reducing their hours. 

Crucially, employers should act quickly. Do not delay if you think something is wrong. Mental illness can escalate fast and taking swift action could make all the difference.

What to avoid 

Information about a person’s health constitutes ‘special category data’ under the GDPR and the Data Protection Act 2018, so particular obligations apply.  Unless the employee has given explicit consent, information about their health should not be disclosed to third parties. This becomes difficult if an employer is concerned for the welfare of their employee in circumstances where they are threatening harm to themselves, and/or the employer cannot make contact with them. 

I know of one case when an employer was unable to make contact with an employee following them reporting suicidal thoughts. The employer was unsure of whether they should contact the police or the employee’s next of kin. In the end the potential risk to life was considered an overriding factor and they called the police. But they did not reveal the mental health problem, just that they were concerned for their employee’s welfare.

Remember, if somebody has a mental illness, they could be considered disabled under the Equality Act 2010. As a result, companies must consider reasonable adjustments. Failing to do so could result in a disability discrimination claim. 

Ultimately, no employer wants staff to take time off sick. Taking small steps to support your employees and raise awareness of mental illness within the workplace generally could make all the difference to them and your business. 

Katie Maguire is a partner in the employment department at Devonshires

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