In light of the Covid-19 pandemic and its impact in the workplace, employers are increasingly seeing people being signed off work with anxiety or stress.
To the employer, the costs are already known to be huge. The Health and Safety Executive (HSE) released its annual statistics for 2019 recently, which highlight 12.8 million days were lost due to work-related stress, depression, or anxiety. The Office for National Statistics (ONS) has also reported that the number of adults in Britain experiencing depression has doubled during the coronavirus pandemic.
An employer’s legal obligations in respect of mental health of the workforce can be categorised as follows:
- the employer duty of care from a health and safety perspective, and
- the employer obligations under the Equality Act 2010 to not discriminate on the grounds of disability.
Duty of care
Employers have a legal duty to ensure the health and safety of their workforce. An employer is obliged to:
- undertake a risk assessment of health and safety risks including mental health;
- apply the principles of prevention, e.g. developing a mental health policy covering the organisation of work; giving appropriate instructions to the workforce about how to prevent risks to mental health;
- provide information to the workforce about any health and safety risks identified in the risk assessment..
A breach of health and safety is a criminal offence with potential liability for both individuals and organisations. This potentially means unlimited fines for organisations and individuals, as well as imprisonment for individuals and disqualification of directors.
Aside from the regulatory aspects of health and safety law, there is also the potential for civil liability.
Disability discrimination issues
While a worker might already have a mental health issue that the employer is aware of, the Covid-19 environment may be a trigger for a new mental health issue. To amount to a disability, this must have a substantial long-term effect on the individual’s ability to carry out normal activities.
Employers should consider arranging an assessment by a mental health specialist, and it is essential to understand whether an employee is likely to be considered disabled for the purposes of the Equality Act 2010.
If the employee is classified as disabled, the employer’s obligations not to discriminate under the Equality Act 2010 apply. Tribunal awards for disability discrimination claims are uncapped.
- have effective policies and systems to respond to any mental health concerns;
- ensure risk assessments include mental health;
- ensure that managers keep in touch with the workforce and create an open environment to discuss any mental health concerns;
- keep a paper trail of steps taken for reference in case issues arise;
- train managers to spot potential mental health issues;
- make sure the workforce is aware of where to find mental health support information;
- ensure there are adequate resources for managing the risks associated with mental health.
Dealing with mental health issues
- keep in contact with the employee and update them on any key changes, and which steps are being taken in relation to them personally;
- make HR and managers aware of what is going on once an employee has been assessed;
- consider phased returns to work even where the employee is working from home.
Supporting the return to the workplace
More employers are looking at steps they need to take to reopen workplaces. A Covid-19 risk assessment is critical and should consider the mental health and wellbeing of workers who wish to return, and those who remain homeworking, who may be experiencing feelings of isolation.
Further practical tips for supporting the return to the workplace:
- Communicating with staff is key to providing support as we gradually emerge from lockdown.
- Keeping staff informed on the preventative measures that are either in place or will be implemented.
- Providing support and recognising that each person’s circumstances may present different challenges.
- Being alert to changes in a person’s behaviour which could be indicative of a mental health issue. Managers should be trained on the potential signs of poor mental health, as well as how to handle a disclosure of a mental health condition.
Richard Brown is a partner and Mariella Nigrelli an associate at CMS