When considering whether an employer has subjected a worker to a detriment with the sole or main...
Handling mental health at work
- Key indicators of mental health issues
- Getting it right – the benefits
- Getting it wrong – the risks
- Employers’ legal duties
- HSE Management Standards
- When is a mental health condition a disability?
- Practical steps to take
- Mental health is a real issue for a large proportion of the workforce and businesses and has arguably been exacerbated by COVID-19.
- ACAS found most common forms are stress, anxiety, depression, phobic anxiety disorders and obsessive-compulsive disorders. In some cases, these conditions may amount to a disability for legal purposes.
- Stress is not - in itself - likely to be a disability but can have a significant impact on wellbeing - Herry v Dudley Metropolitan Borough Council.
- The statistics are revealing: one in six British workers will experience depression, anxiety or stress-related issues at any one time, the total cost of poor mental health to UK employers was £4.9 billion (in 2016-17), and in 2018-19 stress, depression or anxiety were responsible for 44% of work-related ill health.
- ACAS states that the key indicators of mental health issues are:
- changes in behaviour, mood or how the individual interacts with colleagues
- changes in the standard of work or focus on tasks
- appearing tired, anxious or withdrawn and reduced interest in tasks the individual previously enjoyed
- changes in appetite and/or increase in smoking and drinking alcohol
- an increase in sickness absences and/or turning up late to work
- Give managers the tools to identify possible mental health issues and know whom to contact within the organisation if they are concerned.
Supporting staff with mental health issues and reducing work related stress/mental health absences is beneficial for both employer and employee:
- staff are healthier and happier at work
- improves performance and makes staff more productive
- reduces absence levels and presenteeism
- reduces workplace disputes and potential claims
- makes the business more attractive to job seekers
Mishandling a mental health issue could potentially give rise to claims for:
- breach of implied duty of trust and confidence, leading to constructive dismissal claims
- breach of the statutory duty to assess risk of stress-related ill health arising from work activities and taking steps to control that risk
- negligence or breach of the employer’s common law duty to take reasonable care
- unfair dismissal, i.e. if the individual is dismissed but without a fair reason and/or a fair procedure is not followed
- discrimination claims if the condition amounts to a disability
- You have a common law duty of care to your staff. You must do all you reasonable can to support employees’ health, safety and wellbeing specifically by:
- ensuring a safe working environment (the Health and Safety at Work Act 1974) - this includes physical and mental health.
- protecting workers from discrimination (the Equality Act 2010), and
- carrying out risk assessments of the working environment (the Management of Health and Safety at Work Regulations 1999)
- You also have an implied contractual (as opposed to statutory) obligation to operate a safe system of work.
- All employers are required to carry out a stress risk assessment. This should be recorded in writing if they have five or more employees – the HSE provides guidance on this.
- Consider the HSE Management Standards when running your risk assessment.
The HSE Management Standards identify six areas of work which can affect stress levels:
- Demand – assess the individual’s workload, work environment, working pattern
- Control – how much control do staff have how they do their work?
- Support – resources, encouragement, etc from managers and colleagues
- Relationships – do you have positive working arrangements in place to avoid conflict? Do you have processes in place to encourage and aid teamwork?
- Role – do your staff understand their role and place within the business?
- Change – how do you communicate and manage business changes? Is the business transparent about its plans?
- Someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (s. 6 of the Equality Act).
- Having such a disability triggers your legal duty to make reasonable adjustments (s. 20 of the Equality Act).
- In the case of mental health conditions, this can include adjusting sickness absence triggers, workload, working arrangements, reduction in hours, etc.
- You can be deemed to have constructive knowledge of disability (Donelien v Liberata UK).
- Carry out the HSE risk assessment and keep under review – particularly now at this period of uncertainty:
- effective and accurate assessments will only really be possible if you discuss them with staff
- identify what the risks are, how they could be alleviated and who is responsible for actions
- develop an action plan
- Identify the costs of absence and/or presenteeism to the business – the DWP provides a useful Workplace Wellbeing Tool. Consider investing instead in providing additional resources to staff.
- Inform staff of the internal and external resources and support they can access, e.g. counselling services, employee assistance programmes.
- Train your managers on dealing with mental health issues.
If any employee presents or shows indicators of mental health issues:
- invite the individual to discuss it. Use a neutral location or technique which allow them to feel more comfortable, e.g. walking whilst talking means no direct eye contact
- explain you have concerns and reference examples of behaviour (if applicable)
- listen to them
- if there is a condition or issue, identify it and try to find out more
- identify and consider ways of supporting and/or resolving the issue
- if applicable, obtain medical reports and/or occupational health reports